[Cite as State v. Rawls, 2016-Ohio-7962.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104191 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

DAVID RAWLS 

 DEFENDANT-APPELLANT 

 

JUDGMENT: 

REVERSED AND REMANDED

 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-96-341281-ZA 

BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: December 1, 2016 
ATTORNEY FOR APPELLANT

Donald R. Caster 

Ohio Innocence Project 

University of Cincinnati 

P.O. Box 210040 

Cincinnati, OH 45221 

 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Christopher D. Schroeder 

Anthony Thomas Miranda 

Assistant County Prosecutors 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} Appellant David Rawls appeals from the denial of his application for 

postconviction DNA testing. For the reasons discussed below, we reverse the decision of 

the trial court and remand for further proceedings consistent with this opinion. 

{¶2} Rawls was arrested on June 20, 1996, on charges related to an aggravated 

robbery of a Marc’s Discount Drug Store. Following an indictment, the charges were 

amended to two counts of aggravated robbery, in violation of R.C. 2911.01, and two 

counts of kidnapping, in violation of R.C. 2905.01. Each count carried a firearm 

specification and an aggravated felony specification for a previous conviction for 

aggravated robbery. Rawls’s case proceeded to a jury trial in January 1997. The 

following is a summary of the facts elicited from the trial that are relevant to the present 

appeal.1

 1

 A full discussion of the facts leading to Rawls’s convictions is provided in his 

direct appeal, State v. Rawls, 8th Dist. Cuyahoga No. 72051, 1998 Ohio App. LEXIS 

1895 (April 30, 1998). 
{¶3} On the afternoon of June 16, 1996, a man wearing a dark jacket and a black 

cap that read “police” across the front, knocked on the door to the money room of the 

Marc’s store located on Lakeshore Boulevard in Euclid, Ohio. Sharon Wheeler, a store 

employee who was working alone inside the money room on that day, opened the door 

after observing the “police” inscription on the man’s hat. When Wheeler opened the 

door, the man placed a gun in Wheeler’s face, shoved her back into the money room, 

closed the door, and covered her mouth with his hand. The assailant forced Wheeler to 

the floor where he bound her hands and feet with red T-shirts that had been taken off a 

rack of clothing in the store. Shortly thereafter, Peter Thomas, the employee supervisor 

of the store knocked on the door to the money room. When the assailant opened the 

door, he immediately pointed his gun at Thomas and pulled him inside. The assailant 

then ordered Thomas, at gunpoint, to fill a large plastic bag with cash. Thomas did as he 

was told. When finished, the assailant forced Thomas to the floor and also bound his 

hands and feet with T-shirts. The assailant proceeded to strike Wheeler and Thomas in 

the head with his gun, causing severe head lacerations to both victims. The assailant 

took the bag of money, which totaled over $8,000, and ran out of the store. 
{¶4} When police arrived, Thomas told them that he was familiar with the 

assailant as a person who, in the days before the robbery, had been hanging around the 

store and telling employees that he was the new “floor cleaner.” Thomas told police that 

aside from seeing the perpetrator walking around and observing the store under the 

pretense of being a floor cleaner, he also saw the perpetrator in the break room talking to 

employees. Further interviews with employees who had talked to the man, revealed that 

the man carried a pistol and was telling employees that he “was a part-time security 

guard, and also ran the floors,” and was also asking if there was “a money room around.” 

{¶5} Another store employee, Joe Jones III, the store’s greeter, testified that he 

saw the perpetrator run out of the Marc’s store carrying a large bag and a red T-shirt. 

According to Jones, the perpetrator was wearing dark clothing with a gun sticking out his 

pocket and a police cap. Jones testified that the perpetrator was familiar to him because 

he had spoken to him just before the robbery when the man was using the payphone 

outside of the store. Jones testified that the man asked him which store manager was on 

duty that day, and also spoke to him for a few minutes about football and basketball. 
{¶6} On this information, detectives assigned to the case telephoned the 

maintenance company that the Marc’s store had contracted to clean its floors. The 

detectives learned that a man fitting the description of the perpetrator had been employed 

there and that this person was David Rawls. After gathering this information, the 

detectives assembled a photo array of potential suspects, which included Rawls. The 

photos were shown to six store employees, including Thomas, who stated that they had 

seen the perpetrator either on the day of the robbery or in the days prior. All six 

employees picked Rawls’s picture out of the array as the person they had seen. At trial, 

both Thomas and Jones identified Rawls as the person who committed the robbery. 

{¶7} In addition to the eyewitness identifications, the detectives obtained certain 

phone numbers from a pager recovered from Rawls at the time of his arrest. Two of the 

numbers in the pager corresponded to telephone numbers called from the Marc’s 

payphone on the day of the robbery. 

{¶8} Rawls was found guilty on all charges and their corresponding firearm 

specifications, and was sentenced to a total, indeterminate term of 18 to 50 years in 

prison. Rawls’s direct appeal of his convictions was affirmed with the exception of a 

limited remand for reconsideration of sentencing. Rawls, 8th Dist. Cuyahoga No. 72051, 

1998 Ohio App. LEXIS 1895 (April 30, 1998). 
{¶9} Prior to trial, and in the 20 years since, Rawls has maintained his innocence. 

On August 27, 2015, Rawls filed an application for postconviction DNA testing. In it, 

Rawls requested the DNA testing of the T-shirts that were used by the perpetrator in the 

commission of the robbery to bind the feet and hands of the victims. The state opposed 

the application on the basis that despite due diligence on the part of the assistant 

prosecuting attorney (“APA”), the APA was unable to locate the T-shirts, and that even if 

the evidence were available, the evidence would not be outcome determinative and 

therefore did not support an application for DNA testing. The APA submitted his report 

of the steps he took to locate the evidence at issue, pursuant to R.C. 2953.75(B). 

{¶10} In light of the APA’s report, Rawls asked the court for an evidentiary 

hearing to determine the location of the T-shirts. In his argument, Rawls cited to 

numerous cases across the country where evidence was found, despite initial claims that 

evidence was lost or destroyed, when courts held a hearing where custodians testified 

regarding their efforts to locate the evidence. In its opposition brief, the state argued 

that, even if the shirts could be located, a touch DNA sample was likely to have degraded 

over 19 years to the point where testing was not possible and, even if DNA was found, it 

would not be outcome determinative because it is possible that others touched the shirts 

while they were on display in the store. The state also focused on the steps it took to find 

the evidence, including looking through the county evidence room, and contacting past 

evidence custodians and prosecutors. 
{¶11} The court denied Rawls’s request for an evidentiary hearing and further 

denied his motion for DNA testing. In its decision, the court stated that the application 

failed to meet two of the six statutory factors necessary for DNA testing under R.C. 

2953.74. Specifically, the court concluded that Rawls failed to show that the evidence he 

sought still existed, in light of the APA’s report that it could not be found. The decision 

went on to state that even if the T-shirts still existed, Rawls could not demonstrate that the 

results from any DNA testing would be outcome determinative under R.C. 2953.74(C)(5). 

{¶12} On appeal, Rawls raises two assignments of error for our review. The first 

argues that the trial court erred by declining to hold an evidentiary hearing. His second 

assignment of error argues that the trial court erred in finding that DNA testing of the 

T-shirts would not be outcome determinative in his case. 

{¶13} Appellate courts review a trial courts decision to accept or reject an eligible 

inmate’s application for DNA testing for an abuse of discretion. R.C. 2953.74(A); State 

v. Ayers, 185 Ohio App.3d 168, 2009-Ohio-6096, 923 N.E.2d 654 (8th Dist), ¶ 12. An 

abuse of discretion is “more than an error of law or of judgment; it implies that the court’s 

attitude is unreasonable, arbitrary or unconscionable.” State v. Adams, 62 Ohio St.2d 

151, 157, 404 N.E.2d 144 (1980). 
{¶14} Ohio’s statutory scheme set forth in R.C. 2953.71 et seq., for post conviction 

DNA testing, outlines certain factors that must be satisfied before a trial court “may 

accept” an eligible inmate’s application for DNA testing. The parties do not dispute that 

Rawls qualifies as an eligible offender for DNA testing under the statute. Accordingly, 

the court needed only to find the statutory factors under R.C. 2329.74(C) applied before 

granting the applications. 

{¶15} R.C. 2329.74(C) states: 

If an eligible offender submits an application for DNA testing under section 

2953.73 of the Revised Code, the court may accept the application only if 

all of the following apply: 

(1) The court determines pursuant to section 2953.75 of the Revised Code 

that biological material was collected from the crime scene or the victim of 

the offense for which the offender is an eligible offender and is requesting 

the DNA testing and that the parent sample of that biological material 

against which a sample from the offender can be compared still exists at 

that point in time. 

(2) The testing authority determines all of the following pursuant to 

section 2953.76 of the Revised Code regarding the parent sample of the 

biological material described in division (C)(1) of this section: 

(a) The parent sample of the biological material so collected 

contains scientifically sufficient material to extract a test 

sample. 

(b) The parent sample of the biological material so collected 

is not so minute or fragile as to risk destruction of the parent 

sample by the extraction described in division (C)(2)(a) of this 

section; provided that the court may determine in its 

discretion, on a case-by-case basis, that, even if the parent 

sample of the biological material so collected is so minute or 

fragile as to risk destruction of the parent sample by the 

extraction, the application should not be rejected solely on the 

basis of that risk. 
(c) The parent sample of the biological material so collected 

has not degraded or been contaminated to the extent that it has 

become scientifically unsuitable for testing, and the parent 

sample otherwise has been preserved, and remains, in a 

condition that is scientifically suitable for testing. 

(3) The court determines that, at the trial stage in the case in which the 

offender was convicted of the offense for which the offender is an eligible 

offender and is requesting the DNA testing, the identity of the person who 

committed the offense was an issue. 

(4) The court determines that one or more of the defense theories asserted 

by the offender at the trial stage in the case described in division (C)(3) of 

this section or in a retrial of that case in a court of this state was of such a 

nature that, if DNA testing is conducted and an exclusion result is obtained, 

the exclusion result will be outcome determinative. 

(5) The court determines that, if DNA testing is conducted and an 

exclusion result is obtained, the results of the testing will be outcome 

determinative regarding that offender. 

(6) The court determines pursuant to section 2953.76 of the Revised Code 

from the chain of custody of the parent sample of the biological material to 

be tested and of any test sample extracted from the parent sample, and from 

the totality of circumstances involved, that the parent sample and the 

extracted test sample are the same sample as collected and that there is no 

reason to believe that they have been out of state custody or have been 

tampered with or contaminated since they were collected. 
{¶16} In his first assignment of error, Rawls takes issue with the court’s 

conclusion that he failed to meet factor (C)(1) above, which requires that evidence subject 

to the request for DNA testing still be in existence at the time of the application. Rawls 

contends that the court should have held an evidentiary hearing before concluding that 

evidence did not exist. 

{¶17} Although a court must duly consider whether the eligible offender meets 

all of the statutory requirements for DNA testing, R.C. 2359.73(D) specifically provides 

that “[t]he court is not required to conduct an evidentiary hearing in conducting its review 

of, and in making its determination as to whether to accept or reject, the application.” 

Moreover, as a corollary to R.C. 2953.74(C)(1), the postconviction DNA testing statute 

requires that the state exercise reasonable diligence in determining whether the biological 

material subject to the offender’s request for testing was collected from the crime scene 

or victim of the offense, and whether the same biological material exists at the time of the 

application for testing. R.C. 2953.75(A). In conducting his/her search, the prosecuting 

attorney is instructed to investigate with reasonable diligence all relevant sources which 

includes but is not limited to: (1) all prosecuting authorities from the original case, (2) all 

law enforcement authorities involved in the original investigation, (3) all custodial 

authorities involved at any time with the biological material, (4) the custodian of all 

agencies, (5) all crime laboratories involved at any time with the biological material, and 

(6) all other reasonable resources. Id. The definition of “reasonable diligence” 

provided for in the statute states, 
“Reasonable diligence” means a degree of diligence that is comparable to 

the diligence a reasonable person would employ in searching for 

information regarding an important matter in the person’s own life. 

R.C. 2953.71(Q). The prosecutor must address in a report filed with the trial court the 

existence and availability of the evidence and, if necessary, outline the state’s efforts to 

locate the evidence if the evidence cannot be found. R.C. 2953.75(B). 

{¶18} In this case, the APA submitted a report of the state’s efforts to locate the 

T-shirts used to tie the victims. The report detailed how the state contacted the Euclid 

Police Department, including the department’s records office and property room. 

According to the report, the “[r]ecords [o]ffice stated that they [sic] switched computer 

systems approximately two years ago and do not still have anything in their [sic] 

possession from 1996.” The report further stated that “Thomas Yanacek with the 

[p]roperty room checked Euclid Police records pertaining to Rawls case * * * and was 

unable to locate any evidence currently in the possession of the Euclid Police 

Department.” Yanacek did find a copy of the initial, six-page, handwritten police report 

and Rawls’s personal history sheet; however, neither indicted whether T-shirts were 

collected as evidence from the crime scene. According to the APA’s report, 

Yanacek further indicated that Euclid’s computer records show no physical 

evidence associated with that report. Yanacek stated that he believed any 

evidence associated with Rawls’ case had probably been destroyed because 

the case had been adjudicated many years ago. 
The report also indicated that the state contacted the department’s police chief, Tom 

Brickman. Chief Brickman spoke to a law clerk at the prosecutor’s office and explained 

that the department did not have any evidence in its possession related to the Rawls case. 

Attached to the report were two email letters from Brickman to the Ohio Innocence 

Project that stated that the department did not have the evidence and that the inventory log 

of collected evidence could not be located. 

{¶19} The APA’s report also detailed how the state could not find an inventory 

log, chain of custody log, or any other documents relating to the existence or location of 

the T-shirts in its digital discovery database, and how a personal inspection of the 

Cuyahoga County property room revealed no items related the case. The report further 

related how the state contacted the prosecutor who tried the case in 1996, the criminal 

clerk of courts for the county, and the Eighth District Court of Appeals Clerk’s Office, 

but was unable to locate the evidence or any documentation indicating its possible 

whereabouts. 
{¶20} Notably, however, the APA’s investigation of the clerk’s office uncovered 

a Euclid police report attached to a motion Rawls filed in 2008. The police report stated 

that “[t]wo items of clothing used in the attempt to tie up the victims was held.” The 

APA admitted in his investigation report that the police report was not included among 

the information provided by the Euclid police department to the state in its initial 

inquiries. Moreover, the APA’s report also stated, that upon reviewing the docket and 

pleadings in a 2010 Section 1983 case filed by Rawls in federal court against the city of 

Euclid, the state discovered that the city of Euclid admitted that “two pieces of clothing 

were held for evidence[.]” At oral argument, the prosecutor defending the present appeal, 

conceded that the two pieces of clothing referred to in the pleadings were most likely the 

T-shirts. 

{¶21} Despite the many places searched and people contacted, the APA’s report 

does not reflect that the state met its burden of investigating, with reasonable diligence, 

all relevant sources that may have come into contact with evidence from this case. 

Indeed, we do not see how the court could have concluded, without a hearing, that the 

T-shirts do not exist. 
{¶22} Of particular concern is the limited nature in which the state investigated the 

Euclid police department’s records, custodians, and property room. Although the APA 

explains in his report that the state contacted the department’s records office, the report 

does not indicate with whom the APA spoke, that person’s job title and/or duties, or the 

person’s relationship to the records. The person’s responsibilities with respect to the 

department’s records is relevant to the quality and reliability of the information provided 

to the APA. Moreover, the APA’s report appears to take the spokesperson’s explanation 

that the office changed computer systems two years prior and no longer has anything from 

1996 at face value. The report offers no explanation regarding whether the APA asked 

any follow-up questions about the system change or what might have happened to the 

outdated records (e.g., were they destroyed, kept on an external hard drive, sent to the 

county clerk’s office, sent to a dead files location etc.). Nor does the report explain the 

department’s record retention policy or whether the APA ever inquired into whether the 

department had a retention policy. The APA’s report in this regard does not reflect 

reasonable diligence on the part of the state to locate the records of Rawls’s case that 

would lead to the whereabouts of the evidence in question. 
{¶23} Furthermore, the APA states that Thomas Yanacek with the Euclid property 

room checked the police records pertaining to Rawls’s case and was unable to locate any 

evidence. Nevertheless, Yanacek was able to find a copy of a handwritten police report 

authored by one of the detectives on the case, and was also able to check computer 

records for evidence associated with the police report. Although the APA in this 

instance provides the court with the contact person’s name, the APA offers no 

explanation of Yanacek’s job duties and responsibilities with regard to the property room. 

 Additionally, there is no indication in the APA’s report whether Yanacek physically 

searched the evidence room for the T-shirts, or simply ended his search once computer 

records showed no physical evidence associated with the case. The very fact that 

Yanacek was able to locate at least some electronic/computer records of the case further 

calls into question whether the spokesperson in the records office did a comprehensive 

search for information related to Rawls’s case or whether he stopped once the system 

indicated the records were not available. While we recognize that the separate offices 

might not have integrated computer systems, reasonable diligence requires that the APA 

at least ask and include this fact within the report. Further troubling is the fact that the 

APA’s report relies on Yanacek’s opinion that “any evidence associated with Rawls’s 

case had probably been destroyed,” without following-up on whether the department has 

an evidence destruction policy and, if so, what it entails. Again, this shows a lack of 

reasonable diligence on the part of the state. 
{¶24} Crucial to this court’s disposition on appeal is the fact that not a single 

person, custodian, or department can say what happened to the T-shirts that were 

indisputably collected as evidence in this case. This is troublesome in light of the fact 

that the APA’s report tends to show that the Euclid police department either had 

knowledge of, or possessed records pertaining to, the collection and storage of the 

T-shirts as recently as 2010 when Rawls filed his Section 1983 action against the city of 

Euclid in federal court. And in the six years since Rawls’s federal suit, the information 

regarding the collection and storage of the T-shirts cannot be located, without sufficient 

explanation or inquiry. Although the trial court must find that an eligible offender’s 

application for DNA testing satisfies the statutory mandates of R.C. 2953.74(C), which 

includes a finding that the evidence still exists, the burden of proving the evidence cannot 

be located despite reasonably diligent efforts rests squarely on the state. See State v. 

Ustaszewski, 6th Dist. Lucas No. L-05-1226, 2006-Ohio-329, ¶ 20. In its journal entry 

denying the application for DNA testing, the trial court relied solely on the APA’s report 

for its conclusion that the requested evidence does not exist. We find that the court acted 

unreasonably in reaching this conclusion without a hearing when the APA’s report 

establishes that the state conducted what could be viewed as a superficial investigation of 

the Euclid police department’s records and property offices. Accordingly, we remand to 

the trial court for a hearing. 
{¶25} Rawls’s second assignment of error is also well taken. In addition to 

denying Rawls’s application for failing to satisfy R.C. 2953.74(C)(1), the trial court 

stated, without further explanation, that even if the evidence were to exist, the results of 

DNA testing would not be outcome determinative under R.C. 2953.74(C)(5). This court 

has previously held that a trial court must state its reasons for reaching its conclusion that 

DNA testing would not be outcome determinative. State v. Richard, 8th Dist. Cuyahoga 

No. 99449, 2013-Ohio-3918, ¶ 8. 

{¶26} Judgment reversed and remanded. 

It is ordered that appellant recover of appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

MELODY J. STEWART, JUDGE 

MARY EILEEN KILBANE, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR