State v. Lewis

[Cite as State v. Lewis, 2026-Ohio-1340.]


                         IN THE FIFTH DISTRICT COURT OF APPEALS
                                 DELAWARE COUNTY, OHIO


  STATE OF OHIO,                              Case No. 25 CAA 09 0085

         Plaintiff - Appellee                 Opinion And Judgment Entry

  -vs-                                        Appeal from the Delaware County Court of
                                              Common Pleas, Case No. 20 CR I 08 0555
  KENNETH LEWIS,
                                              Judgment: Affirmed
         Defendant - Appellant
                                              Date of Judgment Entry: April 10, 2026



BEFORE: Andrew J. King; Craig R. Baldwin; Kevin W. Popham, Judges

APPEARANCES: MELISSA A. SCHIFFEL, Prosecuting Attorney, KATHERYN L.
MUNGER, Assistant Prosecuting Attorney, for Plaintiff-Appellee; KENNETH LEWIS
#A785-946, Pro Se, for Defendant-Appellant.



Baldwin, J.

         {¶1} The appellant, Kenneth Lewis, appeals the trial court’s decision denying his

postconviction application for DNA testing. For the reasons that follow, we affirm the

decision of the trial court.

                          STATEMENT OF FACTS AND THE CASE

         {¶2} On or about August 28, 2020, the appellant entered Cashland, a retail

pawnshop, held two employees at gunpoint, and robbed the store. He was later indicted

on one count of aggravated robbery and two counts of kidnapping. He pleaded not guilty,

and the matter proceeded to a jury trial at which the following evidence was admitted.

         {¶3} The two Cashland employees testified regarding the robbery and the fact

that the perpetrator held them at gunpoint, noting that the perpetrator wore a grey long-
sleeved Carhartt shirt. Video footage from Cashland’s surveillance cameras was also

admitted. An employee from a nearby CVS store also testified regarding the authenticity

of video footage from CVS surveillance cameras showing the appellant entering the CVS

store following the robbery, taking off a dark long-sleeved shirt, placing it in a bag, and

then leaving the store. In addition, a nearby resident had surveillance cameras on his

property that captured the appellant, and testified regarding said surveillance video

footage. Further, a police detective who was parked nearby in an unmarked vehicle

testified that he observed the appellant discard the long-sleeved shirt after leaving CVS;

the detective retrieved the shirt, and observed the appellant get into a vehicle and leave

the scene. The detective recorded the vehicle’s license plate number, which was traced

back to the appellant. In addition, a BCI forensic analyst who conducted DNA testing on

the dark long-sleeved shirt recovered after the robbery testified regarding her findings,

and the fact that the appellant’s DNA was found on the long-sleeved shirt; in fact, she

testified that the appellant was a major contributor of the DNA found on the shirt.

Moreover, when the appellant was taken into custody he had several thousand dollars in

cash, gold chains in a bag, and clothing that was consistent with that worn by the

perpetrator. Finally, an inmate who had been in jail with the appellant testified that the

appellant described to him in detail how he robbed the Cashland pawnshop.

        {¶4} The jury convicted the appellant on all counts based upon said evidence.

The appellant appealed his conviction to this Court, which affirmed in State v. Lewis,

2022-Ohio-1850 (5th Dist.), motion for leave to file delayed appeal denied, 2023-Ohio-

3670.

        {¶5} The appellant thereafter filed numerous motions for postconviction relief.

In one such motion the appellant asked the trial court to vacate the judgment entry of
sentence; the trial court found that the claims raised by the appellant were raised or could

have been raised in his direct appeal, were therefore barred by res judicata, and denied

his motion. The appellant appealed that decision, raising eight assignments of error. This

Court affirmed that decision in State v. Lewis, 2024-Ohio-5271 (5th Dist.), discretionary

appeal not allowed, State v. Lewis, 2025-Ohio-481.           The appellant filed further

postconviction motions, all of which have been denied by the trial court, affirmed by this

Court on appeal, and not accepted for review by the Ohio Supreme Court.

         {¶6} The appellant’s most recent postconviction application was filed on June 17,

2025, in which the appellant requested DNA testing of the long-sleeved shirt, asserting

that “a DNA test with more accuracy or from an independent expert with a different

opinion and analysis would prove that it was not [the appellant’s] DNA on the shirt in

which would change [sic] the outcome of the case.” The trial court issued a Judgment

Entry on August 26, 2025, denying the appellant’s application for DNA testing. The

appellant filed a timely appeal in which he sets forth the following three assignments of

error:

         {¶7} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY

DENYING APPELLANT’S APPLICATION FOR POSTCONVICTION TESTING ON THE

GROUNDS THAT DNA EXCLUSION RESULTS WOULD NOT BE OUTCOME

DETERMINATIVE.”

         {¶8} “II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY

DENYING APPELLANT’S APPLICATION FOR POSTCONVICTION DNA TESTING ON

GROUNDS THAT APPPELLANT FAILED TO OFFER ANY EVIDENCE THAT THE

PRIOR DNA TEST WAS NOT DEFINITIVE.”
       {¶9} “III. WHETHER THE TRIAL COURT SHOULD HAVE CONSIDER [SIC]

THE POSSIBILITY THAT A COMPARISON OF POSTCONVICTION DNA TEST

RESULTS WILL IDENTIFY A PERSON OTHER THAN THAN [SIC] THE ALLEGED

OFFENDER.”

       {¶10} The appellant argues that the trial court erred in denying his application for

DNA testing. We disagree.

                              STANDARD OF REVIEW

       {¶11} The standard of review for cases involving the denial of applications for

postconviction DNA testing was addressed by this Court in State v. Jenkins, 2023-Ohio-

4758 (5th Dist.):

              R.C. 2953.74 governs prior tests and applications for postconviction

       DNA testing. Under subsection (A), a trial court has discretion to accept or

       reject an application for DNA testing. See State v. Buehler, 113 Ohio St.3d

       114, 2007-Ohio-1246, 863 N.E.2d 124, syllabus. Therefore, absent an abuse

       of discretion, we will not reverse the trial court's decision. An abuse of

       discretion occurs when the trial court's decision is unreasonable, arbitrary,

       or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 5 Ohio

       B. 481, 450 N.E.2d 1140 (1983).

Id. at ¶11.

                                       ANALYSIS

       {¶12} The appellant’s assignments of error are interrelated, and as such we shall

address them together.
      {¶13} A request for postconviction DNA testing is governed by R.C. 2953.71

through 2953.84. R.C. 2953.74 outlines the circumstances in which a trial court may

consider an application for postconviction DNA testing, and provides in pertinent part:

             (A)    If an eligible offender submits an application for DNA testing

      under section 2953.73 of the Revised Code and a prior definitive DNA test

      has been conducted regarding the same biological evidence that the

      offender seeks to have tested, the court shall reject the offender’s

      application. If an eligible offender files an application for DNA testing and

      a prior inconclusive DNA test has been conducted regarding the same

      biological evidence that the offender seeks to have tested, the court shall

      review the application and has the discretion, on a case-by-case basis, to

      either accept or reject the application. The court may direct a testing

      authority to provide the court with information that the court may use in

      determining whether prior DNA test results were definitive or inconclusive

      and whether to accept or reject an application in relation to which there

      were prior inconclusive DNA test results.

             (B)    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 one of the following applies:

             (1)    The offender did not have a DNA test taken 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 regarding

      the same biological evidence that the offender seeks to have tested, the

      offender shows that DNA exclusion when analyzed in the context of and
upon consideration of all available admissible evidence related to the

subject offender’s case as described in division (D) of this section would

have been outcome determinative at that trial stage in that case, and, at the

time of the trial stage in that case, DNA testing was not generally accepted,

the results of DNA testing were not generally admissible in evidence, or

DNA testing was not yet available.

       (2)    The offender had a DNA test taken 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 regarding the same

biological evidence that the offender seeks to have tested, the test was not a

prior definitive DNA test that is subject to division (A) of this section, and

the offender shows that DNA exclusion when analyzed in the context of and

upon consideration of all available admissible evidence related to the

subject offender’s case as described in division (D) of this section would

have been outcome determinative at the trial stage in that case.

       (C)    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.

             (D)    If an eligible offender submits an application for DNA testing

      under section 2953.73 of the Revised Code, the court, in determining

      whether the “outcome determinative” criterion described in divisions (B)(1)

      and (2) of this section has been satisfied, shall consider all available

      admissible evidence related to the subject offender’s case.

R.C. 2953.71(L) defines "outcome determinative" as follows:

             "Outcome determinative" means that had the results of DNA testing

      of the subject offender been presented at the trial of the subject offender

      requesting DNA testing and been found relevant and admissible with

      respect to the felony offense for which the offender is an eligible offender

      and is requesting the DNA testing, and had those results been analyzed in
       the context of and upon consideration of all available admissible evidence

       related to the offender's case as described in division (D) of section 2953.74

       of the Revised Code, there is a strong probability that no reasonable

       factfinder would have found the offender guilty of that offense ….

R.C. 2953.74(U) defines “definitive DNA test” as follows:

              “Definitive DNA test” means a DNA test that clearly establishes that

       biological material from the perpetrator of the crime was recovered from

       the crime scene and also clearly establishes whether or not the biological

       material is that of the eligible offender. A prior DNA test is not definitive if

       the eligible offender proves by a preponderance of the evidence that because

       of advances in DNA technology there is a possibility of discovering new

       biological material from the perpetrator that the prior DNA test may have

       failed to discover. Prior testing may have been a prior “definitive DNA test”

       as to some biological evidence but may not have been a prior “definitive

       DNA test” as to other biological evidence.

       {¶14} In its August 26, 2025, Judgment Entry Denying Defendant’s Application

for DNA Testing, the trial court analyzed each statutory condition. The court first

addressed the fact that a definitive DNA test had been previously conducted, and the

appellant had failed to provide evidence that the prior DNA test was not definitive. In fact,

the DNA test conducted by and testified to by the BCI analyst clearly established that

biological material from the shirt was that of the appellant and was therefore definitive.

The trial court thus determined that it was required by statute to reject the appellant’s

application. We find that the trial court did not act unreasonably, arbitrarily, or
unconscionably when it rejected the appellant’s application, and therefore did not abuse

its discretion.

       {¶15} Furthermore, the trial court determined that the appellant failed to show

that the results of a new DNA test would have been outcome determinative. That is, the

appellant failed to establish that if new results were presented at trial “there is a strong

probability that no reasonable factfinder would have found [the appellant] guilty.” The

testimony of the BCI analyst established that the appellant was the major contributor of

DNA on the shirt, and the presence of his DNA “corroborates the other strong evidence

presented in the case that [the appellant] was the perpetrator of the offense.”

       {¶16} The “other strong evidence” presented in the case that supports the

appellant’s conviction includes, but is not limited to, the following: (1) Cashland’s

surveillance camera video footage which captured the perpetrator wearing a dark long-

sleeved shirt, later identified as the appellant’s shirt and on which the appellant’s DNA

was discovered; (2) the testimony of the Cashland employees who were robbed at

gunpoint; (3) evidence that the appellant fled Cashland on foot and entered a nearby CVS

store located one block from Cashland, where the CVS surveillance camera captured video

footage of the appellant in his dark long-sleeved shirt carrying a dark shopping bag,

walking to the back of the store, removing his long-sleeved shirt, placing it in the dark

shopping bag, and leaving the store; and, (4) testimony of the appellant’s cellmate while

in jail, who testified that the appellant described to him in detail how he robbed the

Cashland pawn shop.

       {¶17} We find that the trial court did not act unreasonably, arbitrarily, or

unconscionably when it determined there was strong corroborative evidence vitiating the

appellant’s arguments. A law enforcement officer observed the appellant discarding the
shirt; the officer retrieved the shirt and recorded the appellant’s license plate as the

appellant left the scene, further corroborating the appellant’s guilt. The testimony of the

BCI analyst established that the appellant was the major contributor of the DNA found

on the shirt. Finally, the testimony from the appellant’s fellow jail inmate regarding how

the appellant gave the fellow inmate a detailed description of how the appellant

committed the robbery further corroborated the evidence submitted against the appellant

during trial. Consequently, the trial court did not act unreasonably, arbitrarily, or

unconscionably when it found that the appellant failed to prove that there was a strong

probability that the jury would not find him guilty if a new DNA test were permitted.

       {¶18} There was a prior definitive DNA test conducted herein regarding the DNA

evidence found on the long-sleeved shirt that the appellant seeks to have tested, and as

such the trial court properly rejected the appellant’s application for DNA testing.

Furthermore, the appellant failed to establish that a second DNA test would be outcome

determinative, or that it would result in a strong probability that no reasonable factfinder

would find the appellant guilty. Thus, the trial court did not abuse its discretion, and

properly denied the appellant’s application. Accordingly, the appellant’s assignments of

error are denied.
                                     CONCLUSION

         {¶19} Based upon the foregoing, we find the appellant’s assignments of error

numbers one, two, and three to be without merit. Accordingly, we overrule appellant’s

assignments of error and affirm the decision of the Delaware County Court of Common

Pleas.

         {¶20} Costs to appellant.


By: Baldwin, J.

King, P.J. and

Popham, J. concur.