[Cite as State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684.] 

THE STATE OF OHIO, APPELLEE, v. ROBERTS, APPELLANT. 

[Cite as State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684.] 

Criminal law—R.C. 2933.82—Retention of biological evidence—The obligation 

to preserve and catalog criminal-offense-related biological evidence 

imposed upon certain government entities by R.C. 2933.82 applies to 

evidence in the possession of those entities at the time of the statute’s 

effective date. 

(No. 2011-1882—Submitted September 25, 2011—Decided December 6, 2012.) 

APPEAL from the Court of Appeals for Guernsey County, No. 10CA000047, 

2011-Ohio-4969. 

__________________ 

SYLLABUS OF THE COURT

The obligation to preserve and catalog criminal offense-related biological 

evidence imposed upon certain government entities by R.C. 2933.82 

applies to evidence in the possession of those entities at the time of the 

statute’s effective date. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} In this appeal, we decide whether the obligation to preserve and 

catalog criminal-offense-related biological evidence imposed upon certain 

government entities by R.C. 2933.82 applies to evidence in the possession of 

those entities at the time of the statute’s effective date. We hold that R.C. 

2933.82 is not retroactive, but that it does apply to biological evidence in the 

possession of governmental evidence-retention entities at the time of its effective 

date. Accordingly, we reverse the judgment of the court of appeals and remand to 

the trial court for further proceedings consistent with this opinion. 
SUPREME COURT OF OHIO

2

RELEVANT BACKGROUND

{¶ 2} In September 1997, a jury found appellant, Clarence D. Roberts, 

guilty of aggravated murder, with a specification of aggravating circumstances, 

and aggravated robbery in connection with the death of Leo Stinnett. Following 

the jury’s recommendation, the trial court sentenced Roberts to life imprisonment 

without parole. Roberts’s convictions and sentence were affirmed on appeal. See

State v. Roberts, 5th Dist. No. 97CA29, 1999 WL 3956 (Nov. 24, 1998). 

{¶ 3} On September 30, 2010, Roberts filed a pro se motion in the trial 

court to order the preservation and listing of evidence. Roberts sought 

preservation of the physical evidence and a certified list of all evidence so that he 

could retain an expert to conduct “touch DNA” analysis. Roberts argued that 

because the prosecution’s theory had relied on the testimony of a John LaFollett, 

he wanted an expert to perform touch DNA analysis on the evidence, “specifically 

including the pocket of the victim which was turned out when the wallet was 

taken, to determine whether John LaFollett’s DNA can be found.” 

{¶ 4} On November 30, 2010, the trial court denied Roberts’s motion, 

finding that “even if John LaFollett’s DNA could be found on the clothing of the 

victim, specifically the pocket, the evidence would not disclose a strong 

probability that it would change the result if a new trial would be granted and 

merely would impeach and contradict the former evidence.” 

{¶ 5} Roberts appealed to the Fifth District Court of Appeals. In his 

single assignment of error, he argued that the trial court erred as a matter of law in 

denying his motion to order the preservation and listing of evidence, in violation 

of R.C. 2933.82. State v. Roberts, 5th Dist. No. 10CA000047, 2011-Ohio-4969, 

¶ 5. 

{¶ 6} R.C. 2933.82 provides: 
January Term, 2012 

3

(B)(2) This section applies to evidence likely to contain 

biological material that was in the possession of any governmental 

evidence-retention entity during the investigation and prosecution 

of a criminal case * * *. 

(3) A governmental evidence-retention entity that possesses 

biological evidence shall retain the biological evidence in the 

amount and manner sufficient to develop a DNA profile from the 

biological material contained in or included on the evidence. 

(4) Upon written request by the defendant in a criminal 

case or the alleged delinquent child in a delinquent child case 

involving a violation of section 2903.01, 2903.02, or 2903.03, a 

violation of section 2903.04 or 2903.06 that is a felony of the first 

or second degree, a violation of section 2907.02 or 2907.03 or of 

division (A)(4) or (B) of section 2907.05 of the Revised Code, or 

an attempt to commit a violation of section 2907.02 of the Revised 

Code, a governmental evidence-retention entity that possesses 

biological evidence shall prepare an inventory of the biological 

evidence that has been preserved in connection with the 

defendant’s criminal case or the alleged delinquent child’s 

delinquent child case. 

(5) Except as otherwise provided in division (B)(7) of this 

section, a governmental evidence-retention entity that possesses 

biological evidence that includes biological material may destroy 

the evidence before the expiration of the applicable period of time 

specified in division (B)(1) of this section * * *: 

* * * 

(7) A governmental evidence-retention entity that possesses 

biological evidence that includes biological material may destroy 
SUPREME COURT OF OHIO

4

the evidence five years after a person pleads guilty or no contest to 

a violation of section 2903.01, 2903.02, or 2903.03, a violation of 

2903.04 or 2903.06 that is a felony of the first or second degree, a 

violation of section 2907.02, 2907.03, division (A)(4) or (B) of 

section 2907.05, or an attempt to commit a violation of section 

2907.02 of the Revised Code and all appeals have been exhausted 

unless, upon a motion to the court by the person who pleaded 

guilty or no contest or the person’s attorney and notice to those 

persons described in division (B)(5)(b) of this section requesting 

that the evidence not be destroyed, the court finds good cause as to 

why that evidence must be retained. 

* * * 

(C)(1) The preservation of biological evidence task force 

established within the bureau of criminal identification and 

investigation under section 109.561 [109.56.1] of the Revised 

Code shall establish a system regarding the proper preservation of 

biological evidence in this state. In establishing the system, the 

task force shall do all of the following: 

(a) Devise standards regarding the proper collection, 

retention, and cataloguing of biological evidence for ongoing 

investigations and prosecutions; 

(b) Recommend practices, protocols, models, and resources 

for the cataloging and accessibility of preserved biological 

evidence already in the possession of governmental evidenceretention entities. 

{¶ 7} In overruling Roberts’s assignment of error, the appellate court 

maintained that because R.C. 2933.82 became effective on July 6, 2010, and 
January Term, 2012 

5

Roberts was convicted in 1997, the statute would have to be applied 

retrospectively if it were to apply at all in this case. Roberts, 2011-Ohio-4969, 

¶ 13. However, a statute is retrospective only if it contains an express, clear 

provision for retroactive application, and the appellate court noted that there was 

no such provision in R.C. 2933.82. Id. at ¶ 13. 

{¶ 8} The court of appeals rejected Roberts’s argument that the use of 

the verb “was” in R.C. 2933.82(B)(2) implied retroactive application. Id. at ¶ 14. 

The Fifth District stated that because the statute sets forth requirements involving 

the preservation of evidence after conviction, the word “was” refers to evidence in 

possession of any governmental evidence-retention entity during the investigation 

and prosecution of a criminal case after July 6, 2010. Id. at ¶ 14. Finally, it 

reasoned that the state could not do what it did not know it had to do, that is, meet 

the standards outlined in R.C. 2933.82 in cases that arose prior to its effective 

date. Id. at ¶ 14. 

{¶ 9} Furthermore, the court of appeals stated that the statute created 

new rights and imposed new duties upon the state to preserve biological evidence 

or to notify certain individuals in the event the evidence was to be destroyed. Id. 

at ¶ 15. For instance, a task force established within the state Bureau of Criminal 

Identification and Investigation, see R.C. 109.561, was directed to establish a 

system for the proper preservation of biological evidence in Ohio. In establishing 

that system, the task force was directed to (1) “[d]evise standards regarding the 

proper collection, retention, and cataloguing of biological evidence for ongoing 

investigations and prosecutions” and (2) “[r]ecommend practices, protocols, 

models, and resources for the cataloguing and accessibility of preserved 

biological evidence already in the possession of governmental evidence-retention 

entities.” R.C. 2933.82(C)(1)(a) and (b). 

{¶ 10} Because the victim’s clothing was not preserved pursuant to the 

practices and protocols created under the new task force, the court of appeals held 
SUPREME COURT OF OHIO

6

that Roberts could not benefit from retrospective application of the statute. Id. at 

¶ 18. Therefore, the court of appeals held that the provisions of R.C. 2933.82 

were to be applied prospectively only, id. at ¶ 19, and affirmed the judgment of 

the trial court, id. at ¶ 21. 

{¶ 11} We granted Roberts discretionary review, 131 Ohio St.3d 1437, 

2012-Ohio-331, 960 N.E.2d 986, and agreed to determine whether R.C. 2933.82 

applies to biological evidence already in the possession of governmental 

evidence-retention entities at the time of the statute’s effective date of July 6, 

2010. 

ANALYSIS

Historical Context of R.C. 2933.82 

{¶ 12} “[W]e must construe [statutes] in a manner that carries out the 

intent of the General Assembly.” Sheet Metal Workers’ Internatl. Assn., Local 

Union No. 33 v. Gene’s Refrigeration, Heating & Air Conditioning, Inc., 122 

Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 29, citing Harris v. Van 

Hoose, 49 Ohio St.3d 24, 26, 550 N.E.2d 461 (1990). In order to determine 

legislative intent, “[w]e look to the language of the statute, the circumstances 

under which the statute was enacted, legislative history, and the consequences of a 

particular construction.” Id. See R.C. 1.49; Cleveland Mobile Radio Sales, Inc. v. 

Verizon Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, 865 N.E.2d 1275, ¶ 12. 

{¶ 13} R.C. 2933.82 was enacted as a product of the “Innocence 

Movement,” which “refers to a related set of activities by lawyers, cognitive and 

social psychologists, other social scientists, legal scholars, government personnel, 

journalists, documentarians, freelance writers, and citizen-activists who, since the 

mid-1990s, have worked to free innocent prisoners and rectify perceived causes of 

miscarriages of justice in the United States.” Zalman, An Integrated Justice 

Model of Wrongful Convictions, 74 Alb.L.Rev. 1465, 1468 (2011). 
January Term, 2012 

7

{¶ 14} One mission of the movement was to create innocence projects at 

law schools “to investigate claims of wrongful convictions, especially in cases 

where DNA testing is not possible but there are serious doubts about the 

reliability of the conviction.” Id. at 1497. The innocence projects often rely on 

modern technology and scientific advancements, considering that one of the best 

tools modern science has to offer the criminal-justice system is the ability to 

conclusively and correctly identify a particular individual by the source of DNA 

found at a crime scene. The innocence projects not only shed light on the fact that 

biological evidence and DNA are critical components of the criminal-justice 

system, because they are often the link to solving crimes; they also highlight the 

need for the preservation and storage of the DNA and biological evidence as a 

way to exonerate wrongfully convicted individuals. 

{¶ 15} As a result of the movement, several law schools created 

innocence projects, including the Innocence Project affiliated with Benjamin N. 

Cardozo School of Law in 1992 and the Center on Wrongful Convictions at 

Northwestern Law School in 1998. Id. at 1489, 1518-1519. By 2000, there were 

more than 50 innocence projects throughout the country. Id. at 1499. Moreover, 

“[t]he average number of annual DNA exonerations * * * grew from 6 per year 

between 1989 and 1999, to 18.1 per year from 2000 to 2009.” Id., citing Know 

the Cases: Browse Profiles, Innocence Project, http://www.innocenceproject.org 

/know/Browse-Profiles.php. “Reforms, such as legislation establishing postappeal jurisdiction for DNA testing,” were also taking place throughout the 

country. Id., citing Rachel Steinback, Comment, The Fight for Post-Conviction 

DNA Testing Is Not Yet Over: An Analysis of the Eight Remaining “Holdout 

States” and Suggestions for Strategies to Bring Vital Relief to the Wrongfully 

Convicted, 98 J.Crim.L. & Criminology 329, 336 (2007). 

{¶ 16} By 2003, over 140 wrongfully convicted individuals across the 

nation had been exonerated by reexamining DNA evidence. Gross, Jacoby, 
SUPREME COURT OF OHIO

8

Matheson, Montgomery & Patil, Exonerations in the United States 1989 Through 

2003, 95 J.Crim.L. & Criminology 523, 524 (2005). 

{¶ 17} That same year, the Ohio Innocence Project was founded at the 

University of Cincinnati College of Law. Ohio Innocence Project, 

http://law.uc.edu/o-i-p (accessed Nov. 27, 2012); Godsey, False Justice and the 

“True” Prosecutor: A Memoir, Tribute, and Commentary, 9 Ohio St.J.Crim.L. 

789, 790 (2012). Also, the General Assembly passed an act to “establish a 

mechanism and procedures for the DNA testing of certain inmates serving a 

prison term for a felony or under a sentence of death.” Title, Sub.S.B. No. 11, 

150 Ohio Laws, Part IV, 6498, 6498. 

{¶ 18} Despite these changes, there were no statewide procedures for 

preserving or storing biological evidence, resulting in inconsistent storage 

techniques by governmental entities throughout the state. The lack of consistency 

in preserving and storing evidence allowed evidence to be compromised, lost, or 

prematurely destroyed. 

{¶ 19} Having recognized that proper preservation promotes justice and 

prevents injustice and that the lack of guidelines for the preservation and storage 

of evidence could lead to grave results, on March 24, 2010, the General Assembly 

enacted R.C. 2933.82, 2010 Sub.S.B. No. 77 (“S.B. 77”). S.B. 77 rectified the 

inconsistencies for preserving and storing biological evidence by establishing a 

task force charged with creating a uniform system and standards. At the time it 

was enacted, S.B. 77 was heralded as a national model for reforms to protect the 

innocent from wrongful conviction by imposing a duty upon law-enforcement 

agencies to store and maintain biological evidence. Innocence Project, March 16, 

2010 press release, http://www.innocenceproject.org/Content/Ohio_Passes_ 

Major_Package_of_Reforms_on_Wrongful_Convictions_Governor_Is_Expected

_to_Sign_Bill_Making_Ohio_a_National_Model.php (accessed Nov. 27, 2012); 
January Term, 2012 

9

S. Michael Lear, Ohio’s Senate Bill 77: A National Model of Reform, Vindicator 

(Spring 2011) 8. 

{¶ 20} With this historical backdrop of S.B. 77 in mind, we now address 

whether R.C. 2933.82 is a retroactive statute. 

The plain language of R.C. 2933.82

{¶ 21} “It is a cardinal rule that a court must first look to the language of 

the statute itself to determine the legislative intent. * * * If that inquiry reveals 

that the statute conveys a meaning which is clear, unequivocal and definite, at that 

point the interpretative effort is at an end, and the statute must be applied 

accordingly.” Provident Bank v. Wood, 36 Ohio St.2d 101, 105-106, 304 N.E.2d 

378 (1973). 

{¶ 22} The parties disagree over what R.C. 2933.82 requires. 

{¶ 23} Roberts’s argument is that the plain language of R.C. 2933.82 

indicates the General Assembly’s intent that the statute applies to evidence in the 

possession of governmental entities at the time the statute was enacted. Roberts’s 

primary support for this argument is that R.C. 2933.82(C)(1)(b) requires the 

newly created preservation-of-biological-evidence task force to “[r]ecommend 

practices, protocols, models, and resources for the cataloging and accessibility of 

preserved biological evidence already in the possession of governmental 

evidence-retention entities.” (Emphasis added.) 

{¶ 24} As additional support, Roberts cites R.C. 2933.82(A)(1)(a)(ii), 

which defines “biological evidence” as “[a]ny item that contains blood, semen, 

hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or any other 

identifiable biological material that was collected as part of a criminal 

investigation or delinquent child investigation and that reasonably may be used to 

incriminate or exculpate any person for an offense or delinquent act.” (Emphasis 

added.) R.C. 2933.82(B)(2) also states that the requirement to secure biological 

evidence applies to evidence that “was in the possession” of a governmental 
SUPREME COURT OF OHIO

10

evidence-retention entity during the investigation and prosecution of specified 

offenses. Also, Roberts argues that R.C. 2933.82(B)(4) provides that when a 

defendant, such as himself, requests that a government entity “that possesses 

biological evidence” prepare an inventory of that evidence, the government 

agency shall do so. (Emphasis added.) Thus, Roberts argues that R.C. 2933.82 

repeatedly states that governmental evidence-retention entities must retain 

biological evidence that was already in their possession at the time the statute was 

enacted. See, e.g., R.C. 2933.82(B)(3), (5), and (7). 

{¶ 25} We agree with Roberts that the language of R.C. 2933.82 is clear. 

The General Assembly repeatedly used the phrases “was in the possession” or 

“possesses,” which shows an unequivocal intent that the duty to preserve and 

catalog biological evidence applies to evidence that was in the government’s 

possession at the time of the statute’s enactment. The General Assembly did not 

specify that the statute was to apply only to evidence that would come into the 

possession of the governmental entities after its enactment. Moreover, the 

General Assembly did not qualify the word “possesses” based on when the 

evidence was gathered. 

{¶ 26} Our holding is supported by the historical context during which 

this statute was enacted. Because DNA and biological evidence play such 

significant roles in the judicial system, it is imperative that law-enforcement 

agencies handle all evidence with extreme care. We believe that it was in that 

spirit that the General Assembly enacted R.C. 2933.82. 

R.C. 2933.82 is not a retroactive statute

{¶ 27} The state argues that because Roberts was convicted in 1997, the 

statute is not applicable to evidence collected in his case unless it is applied 

retroactively. The state argues that because R.C. 2933.82 contains no express 

intent that it apply retroactively, it applies prospectively only. The state begins by 

citing the Ohio Constitution, Article II, Section 28, which provides that the 
January Term, 2012 

11

General Assembly “shall have no power to pass retroactive laws.” The state also 

relies on R.C. 1.48, which provides that “[a] statute is presumed to be prospective 

in its operation unless expressly made retrospective.” The state argues that it 

would be unfair to expect the state to have collected evidence in Roberts’s 1997 

case in accordance with procedures adopted in 2010. 

{¶ 28} Roberts counters that this case is not about retroactivity. Roberts 

asserts that the plain language of the statute requires that the obligation to 

preserve and catalog evidence applies to biological evidence collected after the 

statute was enacted as well as to biological evidence in the possession of lawenforcement agencies at the time of the statute’s enactment in July 2010. We 

agree. 

{¶ 29} The retroactivity analysis does not apply to this case and should 

not have been applied by the court of appeals. We have held that “ ‘[a] statute is 

not retroactive merely because it draws on antecedent facts for a criterion in its 

operation.’ ” Schoenrade v. Tracy, 74 Ohio St.3d 200, 204, 658 N.E.2d 247 

(1996), quoting United Eng. & Foundry Co. v. Bowers, 171 Ohio St. 279, 282, 

169 N.E.2d 697 (1960). Therefore, the use of prior facts, or material, does not 

make application of the statute retroactive. 

{¶ 30} Here, R.C. 2933.82 “draws upon antecedent facts” because it 

applies to biological evidence that is “already in the possession of” or “was in the 

possession of” governmental entities at the time it was enacted. These phrases do 

not make R.C. 2933.82 retroactive, especially considering that there is no 

showing that the General Assembly expressly intended for the statute to apply 

retroactively. Again, the historical setting in which R.C. 2933.82 was enacted 

supports our holding. 

Conclusion 

{¶ 31} We hold that the obligation to preserve and catalog criminaloffense-related biological evidence imposed upon certain government entities by 
SUPREME COURT OF OHIO

12

R.C. 2933.82 applies to evidence in the possession of those entities at the time of 

the statute’s effective date. Therefore, we reverse the judgment of the court of 

appeals and remand the cause to the trial court to order the preservation and 

cataloguing of the physical evidence from Roberts’s case, pursuant to his motion, 

and for any other proceedings that may become necessary. 

Judgment reversed 

and cause remanded. 

PFEIFER, LUNDBERG STRATTON, O’DONNELL, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

__________________ 

 Daniel G. Padden, Guernsey County Prosecuting Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Kristopher A. Haines and 

Craig M. Jacquith, Assistant Public Defenders, for appellant. 

Paul A. Dobson, Wood County Prosecuting Attorney, and David E. 

Romaker Jr., Assistant Prosecuting Attorney, urging affirmance on behalf of 

amicus curiae Ohio Prosecuting Attorneys Association. 

Davis Polk & Wardwell, L.L.P., and Sharon Katz, urging reversal on 

behalf of amicus curiae the Innocence Network. 

_______________________