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State v. Widmer
Citation: 2013 Ohio 62Docket: CA2012-02-008
Court: Ohio Court of Appeals; January 13, 2013; Ohio; State Appellate Court
Original Court Document: View Document
Ryan K. Widmer appeals the Warren County Court of Common Pleas' denial of his petition for postconviction relief, along with motions for a new trial, DNA testing, and an evidentiary hearing. Widmer was convicted on February 15, 2011, for the murder of his wife, Sarah, sentenced to 15 years to life, and filed a timely appeal on March 30, 2011. While his direct appeal was pending, he sought postconviction relief, which was denied on January 17, 2012. The appellate court later affirmed his conviction on September 24, 2012. In his appeal, Widmer argues that the state violated Brady v. Maryland by withholding evidence related to Detective Lieutenant Jeffrey A. Braley's alleged misconduct. He also raises issues regarding ineffective assistance of counsel, denial of DNA testing, and the refusal of an evidentiary hearing and new trial. Braley played a key role in the investigation, arriving at the scene shortly after Sarah's death and later testifying for the prosecution. His credentials were called into question when the defense obtained documents they believed contained inconsistencies, leading to subpoenas for Braley's personnel files, which were contested by both Braley and the state. A hearing on these motions occurred on May 5, 2010. The appellate court ultimately affirmed the trial court's decisions. Braley testified during the hearing that the June 25, 1996 date on his application was incorrect, as he only learned about Hamilton Township in 1997 when he took a volunteer chaplain position. He denied completing the application or signing it, despite the signature appearing similar to his own. He identified several inaccuracies in the application regarding his education and work history, including a false claim of a master's degree and misrepresentation of his employment with the U.S. Postal Service and General Electric. Following the hearing, the trial court granted motions to quash regarding the application, citing doubts about its authenticity and potential for undue prejudice to the jury. Consequently, Widmer was barred from using the application in a subsequent trial. After a mistrial, Widmer obtained a forensic analysis from the Ohio Bureau of Criminal Identification and Investigation (BCI), which indicated that the application and a related letter were filled out by the same individual but could not confirm whether alterations had occurred. Widmer then filed a motion to confront Braley with discrepancies in the application during the third trial, arguing this was necessary to impeach Braley’s credibility. However, the trial court denied this motion, stating that the authenticity of the application remained disputed and that introducing extrinsic evidence would violate Evid.R. 608(B) by turning the issue into a collateral matter. The court noted that Braley's testimony had already been established in previous trials and that his conduct during the investigation was known to the defense and verifiable. Following his conviction and appeal, Widmer sought postconviction relief, asserting he had discovered new evidence that the state had withheld, which indicated that Braley authored an employment application and committed perjury during a hearing by denying this. Widmer also claimed to have found further evidence of misconduct that was pertinent to his case. This new evidence included a report from the law firm Donnellon, Donnellon, Miller (DD&M report) and a supplementary affidavit from police practices expert Dennis Waller, highlighting the implications of Braley's alleged misconduct on the investigation. On February 16, 2011, the day after Widmer's conviction, the Hamilton Township Trustees engaged Douglas Miller from DD&M to investigate Braley's personnel files, including his 1996 employment application and resume, and to assess any additional misconduct throughout Braley's employment history. Miller's report, issued on June 1, 2011, concluded that there was no evidence the employment application and resume were fraudulent or created during the Widmer trials. Interviews with former police officials indicated that the township did not rely on the application for hiring Braley. Miller also investigated Braley's claims of military service, discovering that Braley falsely claimed to have been a member of a Special Forces unit, which had contributed to his leadership role in the township's tactical police unit, THOR. However, Miller found that Braley had no Special Forces experience and had initially served in THOR as a civilian before becoming a police officer. Although this situation posed some risk, it did not expose the township to liability. Braley denied having made any claims about his military background to his colleagues. Miller assessed the implications of Lt. Braley's earlier misconduct on his career, indicating that past incidents related to Braley's Application and Resume Letter, as well as his leadership of the THOR team, did not impact the Township's decisions or expose it to liability. However, Braley's current denials raise concerns about his honesty, suggesting a potential need for a pre-disciplinary hearing regarding his statements and the discrepancies in his claims about military service. Expert Dennis Waller's report characterized Braley as an "opportunist" whose false statements regarding his qualifications enabled him to gain undue influence in the department. Waller stated that Braley's misrepresentations could have compromised the integrity of the investigation into a homicide case, asserting that jurors must be aware of Braley's lack of qualifications to assess how this affected the trial's outcome. Two assignments of error were raised: the trial court allegedly abused its discretion by concluding the state had no knowledge of withheld material information and deemed such evidence collateral to Braley’s testimony; and it ignored established Supreme Court precedent regarding the state's failure to disclose critical information that could have affected the integrity of Widmer's trial and his ability to confront Braley effectively. Widmer contends that the trial court improperly denied his petition for postconviction relief, asserting that the state knowingly presented false testimony by Braley regarding the employment application, violating Napue v. Illinois. Additionally, he claims the state withheld exculpatory evidence and impeachment material in violation of Brady v. Maryland. The court applies an abuse of discretion standard when reviewing such appeals, meaning it will not overturn the trial court's findings if supported by credible evidence. The Brady doctrine mandates that the prosecution must provide the defense with favorable evidence material to guilt or punishment, including information that affects a witness's credibility. The Supreme Court has clarified that while the prosecutor is not obligated to disclose their entire file, they must reveal evidence that, if suppressed, would compromise the defendant's right to a fair trial. Furthermore, there is no constitutional right to discovery in criminal cases, and the Due Process Clause does not dictate the extent of discovery required. The Brady doctrine asserts that a conviction is unconstitutional if it results from perjured testimony or the withholding of evidence that clearly supports a claim of innocence, regardless of the government's knowledge of the suppression. However, a constitutional violation occurs only if the omission deprived the defendant of a fair trial, necessitating the verdict to be overturned only in such cases. Brady mandates that the government must disclose evidence favorable to the accused that is material to guilt or punishment. The Supreme Court clarified that material evidence under Brady should be assessed based on its relevance to guilt or innocence, rather than on the defendant's trial preparation. In the current appeal, Widmer alleges violations of both Brady and Napue, each with distinct materiality standards. Under Brady, undisclosed evidence is material only if its disclosure would create a reasonable probability of a different trial outcome. In contrast, under Napue, materiality is established if there is any reasonable likelihood that knowingly false testimony could influence the jury's decision. To prove a Napue claim, a defendant must demonstrate that the statement was false, material, and known to the prosecution as false. The burden lies with the defendant to prove perjury, as mere inconsistencies are insufficient. False testimony from law enforcement is attributed to the state, obligating the prosecution to be aware of favorable evidence known by their representatives. Widmer contends that the trial court erred by not attributing knowledge of false testimony to the prosecution, but the court focused on Widmer's failure to prove the testimony was false, which is necessary for a Napue claim. Even if knowledge were imputed, Widmer would still need to meet the other requirements for relief. Widmer asserts that new evidence, specifically the BCI and DD&M reports, indicates that Braley authored a 1996 employment application and perjured himself by denying this during a May 5, 2010 hearing. The court disagrees, stating that even if Braley did author the application, Widmer has not established that Braley's testimony was "actually false." Braley was inconsistent about recalling his completion of the application, which does not equate to perjury, especially considering the 14-year gap that likely affected his memory. Mere contradictions in testimony do not imply knowing falsehood. Additionally, Widmer fails to show that any potential perjury was material, as required by the Napue standard, which assesses whether false testimony could reasonably affect jury judgment. Widmer argues that Braley's alleged perjury impacted his trial strategy and led to the quashing of subpoenas for Braley's records and the denial of a confrontation motion. He draws a parallel to the Kyles v. Whitley case, where withheld evidence affected trial outcomes. However, the court clarifies that it did not rule that only perjury before a jury constitutes material perjury and found no evidence of perjury during the trial itself. Widmer contends that if Braley had acknowledged falsifying his employment application at the May 5, 2010 hearing, the defense could have leveraged this to prepare a Kyles defense focused on Braley's incompetence and dishonesty, potentially affecting the investigation's integrity. This argument is deemed speculative and primarily critiques the trial court's judgment rather than the jury's decision. The information in question is considered collateral and not critical to the trial's main issues, suggesting it would unlikely have influenced the court's decisions or strengthened Widmer's prior arguments. The document emphasizes that the Supreme Court has dismissed a materiality standard based solely on the accused's trial preparation capabilities. Disclosure of evidence is not deemed material simply because it could assist the defendant. Most of Widmer's brief centers on how the alleged perjury relates to his Kyles strategy rather than his actual guilt or innocence, which falls outside the protections of Napue and Brady. Nevertheless, the court will examine Widmer's Kyles claim as a materiality argument. To do this, it must identify the evidence Widmer argues was suppressed or affected by Braley's false testimony. Widmer asserts that Braley's false denial regarding filling out the 1996 employment application, coupled with new evidence from the BCI and DD&M reports, indicates that Braley did complete the application. He claims the state utilized Braley's false testimony to obscure other evidence of misconduct, which could have bolstered his Kyles defense. The analysis will separately address various aspects of Widmer's Kyles claim, including Braley's qualifications as a Lieutenant Detective and its potential impact on the jury's perception of the investigation's integrity and the overall verdict. Widmer asserts that the DD&M report indicates Braley lied to secure his position as lieutenant detective in the Hamilton Township Police Department, claiming this incompetence undermined the investigation into Sarah's death. He relies on the Waller affidavit, which suggests Braley's credibility was based on misrepresentations of his experience. However, the review concludes that Waller's claims merely reframe previously known information, failing to specify Braley's alleged incompetence or what an adequately trained officer would have done differently. The DD&M report found that Braley's superiors did not hire him based on any falsehoods, indicating that his alleged misconduct did not affect his qualifications or the integrity of the investigation. Consequently, Widmer's argument that new evidence discrediting Braley's qualifications is material to the investigation's integrity is dismissed. In a separate argument, Widmer claims the state knowingly allowed Braley to commit perjury, affecting evidence collection and processing. This claim is deemed unmeritorious, as there is no reasonable likelihood that the jury was misled by Braley's past misrepresentations. Any false credentials did not impact his role or evidence handling in the Widmer investigation, and ample testimony from other officers corroborated the evidence's integrity. Widmer had opportunities to cross-examine Braley and his colleagues regarding their investigative actions. Additionally, Widmer argues that the defense could not demonstrate Braley's untrustworthiness regarding the preservation of evidence in the bathtub. He posits that Braley may have altered or contaminated the evidence due to his alleged incompetence or tendency to fabricate facts. This argument is also rejected. Jurors were presented with testimony indicating that the condition of the tub changed while in police custody, leading them to potentially dismiss concerns about police contamination. Danny Harness, a fingerprint examiner, processed the tub shortly after Sarah's death in August 2008, finding no usable fingerprints despite using methods that would leave a semi-permanent residue. In contrast, William Hillard examined the tub three months later and discovered a detailed set of fingerprints, as well as additional dusting powder that was not present during his first examination. The defense could have questioned the plausibility of these changes but chose not to. Despite not being aware of alleged falsehoods by Officer Braley, the defense raised chain-of-custody concerns during the trial. The court concluded that the state's failure to disclose information from the DD&M report regarding Braley's past did not affect the jury's view of the evidence's reliability, as it was deemed non-material to the case. Although Widmer argued that this information could have been crucial for challenging Hillard's testimony, the court noted that this argument was not raised in his postconviction petition and thus could not be considered on appeal, following precedent that limits appellate review to arguments made in the original petition. Braley's alleged misconduct in falsifying his employment application and credentials does not impact the credibility of Hillard's testimony, as it is unrelated to Braley's role in the investigation or evidence handling. The Waller affidavit offers no substantial evidence to counter this, as the court previously deemed Waller's opinions disingenuous and lacking evidentiary value. Waller's suggestion that Braley could have altered evidence is mere conjecture and improperly questions Hillard's expert testimony regarding fingerprints on the bathtub. The trial court, as the fact-finder, is best suited to determine the credibility of witnesses. Widmer struggles to connect Braley's alleged misrepresentations to the reliability of the collected evidence. During oral arguments, Widmer's counsel cited the bathtub as evidence of potential tampering, referencing Hillard's testimony that its condition changed after being in police custody. However, the only noted change was the addition of black powder, with no evidence suggesting actual tampering. The court finds concern in Widmer's counsel's embellishments aimed at swaying public opinion rather than accurately representing the record. Concerns are raised regarding the boundaries of permissible appellate advocacy, noting that counsel's representations may verge on distortion of evidence. While the court offers counsel the benefit of the doubt, it warns against future exaggerations. The court stresses that any alleged nondisclosure by the state did not inhibit Widmer from questioning officers about evidence handling. It concludes that Braley's purportedly perjured testimony does not materially undermine the evidence against Widmer. Widmer's assertion that the state exploited Braley's alleged perjury to conceal his supposed incompetence is dismissed as meritless. The court points out that Braley's belief in a homicide from early in the investigation does not support the claim that he selectively collected evidence. The jury was presented with credible testimony from multiple officers, and Widmer had the opportunity to examine their decisions on evidence collection, undermining the argument's materiality under Napue. Additionally, Widmer argues that Braley's perceived lack of experience affected communication with the prosecution, leading to his charging with murder. This argument is also rejected, as the court reiterates that the undisclosed evidence was unrelated to Braley's role or interaction with the prosecutor. Lastly, Widmer contends that he was unable to challenge the coroner's homicide determination due to missing information from the DD&M report, suggesting that Braley misused his credibility to influence this conclusion. Widmer references the Waller affidavit, which asserts that Dr. Uptegrove was improperly influenced by Lt. Jeff Braley, deemed not credible, in declaring the manner of death as homicide. This determination could bias prosecutors and jurors. Waller argues that a coroner's opinion is only as reliable as the information provided, emphasizing the need for jurors to be aware of Braley's untruths and lack of qualifications, as these factors likely compromised the investigation's integrity. The trial court found Waller's opinions unhelpful for assessing materiality under the Napue standard, as they merely echoed Widmer's arguments, overstepped the jurors' role in determining guilt, and mischaracterized Uptegrove's medical assessments. During the trial, Uptegrove was questioned about the autopsy procedures and acknowledged that he did not review critical records before the autopsy and that Braley was present during part of the procedure. Uptegrove admitted to considering police and EMS statements in his conclusions, suggesting he leaned towards homicide due to Braley's input. However, Waller's conclusions extend Widmer's claims without acknowledging Uptegrove's testimony that he would not declare a homicide solely based on police input and that he considered multiple factors in his assessment. Additionally, Chief Investigator Doyle Burke testified that Braley's involvement in the autopsy was minimal. Uptegrove testified that neither Braley nor Burke assisted him in any way, leading to the rejection of Widmer's claim that the jury was improperly influenced by the absence of information in the DD&M report. Even if such information had been disclosed during the trial, Uptegrove's independent decision-making, devoid of Braley's influence, was evident. The court concluded that Widmer failed to show that Braley's alleged perjury materially affected his ability to prepare a Kyles defense, as there was no reasonable likelihood that the jury's knowledge of Braley's false credentials would have influenced their verdict regarding Widmer's guilt in the murder of Sarah. This assessment was supported by the substantial evidence of Widmer's guilt discussed in previous rulings. Regarding Widmer's Napue argument related to impeachment, the court acknowledged that even if false testimony does not directly impact guilt but affects witness credibility, it could still constitute a due process violation. However, the court dismissed Widmer's claim, noting that there was no reasonable likelihood that the impeachment evidence could have swayed the jury's judgment. Under Evid. R. 608(B), cross-examination regarding specific conduct must pertain directly to the witness's character for truthfulness, and extrinsic evidence cannot be used to contradict a witness's denial of collateral matters. In this case, questioning Braley about the employment application and details from the DD&M report would only lead to disputes over collateral issues, unrelated to the charges against Widmer. Braley was not on trial for fraud or misconduct; Widmer was on trial for murder, making the examination of Braley's past irrelevant and potentially confusing for the jury, which aligns with the rules against impeachment on collateral matters (Evid. R. 608; State v. Myers). Even if the information regarding Braley was not collateral, there was no reasonable likelihood that it would have influenced the jury's decision. This case is distinguishable from Napue, where a key witness provided false testimony that directly impacted the prosecution's case against the defendant. Unlike in Napue, Braley's testimony was not central or critical to the prosecution, as corroborative witnesses supported the important aspects of his testimony. Consequently, the impeachment value of new information regarding Braley was diminished by the existing evidence, failing to meet the material impeachment standard outlined in Napue. Furthermore, to establish a claim under Napue, it must be shown that the state knew the witness's testimony was false. Although a police officer's knowledge is typically attributed to the state, Widmer did not satisfy other prongs of the Napue standard, making further analysis unnecessary. There are also doubts regarding the imputability of Braley's knowledge of the new information to the state. Ultimately, applying the Napue standards, it was determined that there was no reasonable likelihood that Braley’s alleged perjury could have affected the jury's verdict, as his testimony was neither exculpatory nor substantially impeaching, and there was sufficient evidence of Widmer's guilt presented to the jury. Thus, the trial court did not err in denying Widmer's postconviction relief request, and there was no violation of his due process and confrontation rights. Widmer's first assignment of error was overruled, despite claims that others connected to the prosecution were aware of Braley's misconduct from an independent investigation in 2010. Widmer asserts a Brady v. Maryland violation due to the prosecution's failure to disclose evidence from the DD&M report and other favorable evidence prior to his third trial. Under Brady, a defendant's due process rights are violated if the prosecution suppresses material evidence, which includes both exculpatory and impeachment evidence, regardless of a formal request. To establish a Brady violation, Widmer must demonstrate that: 1) the suppressed evidence was favorable, 2) it was suppressed by the state, and 3) he suffered prejudice as a result. The trial court found that Widmer failed to identify any undisclosed information and expressed confidence in the verdict, thereby rejecting his Brady claims. Consequently, the court opted for an abuse of discretion review rather than a de novo review. Regarding the evidence's favorability, the court determined that the information on Braley was not exculpatory and had minimal impeachment value, but for argument's sake, it considered it favorable. On the suppression element, the court noted that the state did not receive the DD&M report until after the third trial, which negates the claim of suppression, as established in prior case law. Widmer contends that Braley's knowledge of the report should be imputed to the state, as Braley acted as a "state agent." The court concurred that the knowledge of investigative team members is imputed to the prosecutor, affirming that police are treated as an arm of the prosecution under Brady, thus encompassing evidence known only to them. Prosecutors are obligated to be aware of favorable evidence known to others working on a case, such as police officers. However, not all police knowledge is automatically attributed to the prosecution. In the case at hand, Widmer argues that the prosecution failed its constitutional duty by not disclosing evidence of misconduct by Officer Braley, who had knowledge of his own wrongdoing as detailed in the DD&M report. The court expresses caution regarding this argument, noting that requiring prosecutors to investigate every officer's conduct is unreasonable, particularly when the alleged misconduct is distant in time and not directly related to the case. Widmer also claims that the state concealed findings from a separate internal investigation of Braley by the Hamilton Township Trustees, asserting that the trustees' report echoed the DD&M report but was given under oath. Nonetheless, the court finds no Brady violation due to a failure to demonstrate materiality. Additionally, Widmer suggests that the government intentionally delayed obtaining the DD&M report to avoid discovering potentially exculpatory information. However, this issue is deemed unnecessary to resolve since Widmer cannot prove that the timing of the report would have changed the trial's outcome. Materiality in the context of Brady requires evidence to have a reasonable probability of affecting the trial's result, not merely that it could have led to a different verdict. The assessment of materiality is qualitative, focusing on whether the suppressed evidence casts doubt on the conviction and affects the confidence in the trial's fairness, rather than a mere quantitative analysis. Thus, the court maintains that the standard for establishing materiality in Brady claims is stringent. Widmer's arguments regarding the materiality of evidence under Brady parallel those made under Napue, asserting that the nondisclosure of facts from the DD&M report hindered his ability to prepare a defense and impacted the litigation's direction. The focus of the analysis under Brady is on whether the suppressed evidence was material to guilt or punishment, rather than its effect on trial strategy. The court rejected Widmer's claims that the disclosure would have influenced the trial court's decisions regarding subpoenas or his motion to confront the lead investigator. Despite acknowledging that the suppressed evidence could have raised doubts about the police investigation, the court concluded it did not meet the standard of materiality, as mere possibilities of affecting the trial outcome do not suffice. Widmer had opportunities to challenge the investigation through cross-examination, and the suppression was not the reason for his limited questioning. Furthermore, the withheld evidence was determined not to be material impeachment evidence as it did not relate directly to the key witness's credibility. Braley's testimony was deemed not crucial to the prosecution's case, and thus any nondisclosure regarding collateral matters did not constitute a Brady violation. Ultimately, Braley's credibility was not pivotal in determining Widmer's guilt or innocence. Braley's testimony was deemed cumulative to existing evidence regarding Widmer's guilt, and there is no reasonable probability that impeaching Braley would have altered the trial's outcome. Even assuming that Braley's information should have been disclosed, the overall record does not undermine confidence in the verdict, leading to the conclusion that the trial court did not err in denying Widmer's request for postconviction relief under the Brady ruling. Widmer's claim of ineffective assistance of counsel rests on the assertion that if Braley's alleged perjury had been disclosed, trial counsel failed to act on this evidence or develop a Kyles defense. To prove ineffective assistance, it must be shown that counsel's performance was unreasonable and that this led to prejudicial effects on the trial's outcome. The appellate court is not obliged to assess counsel's performance if the appellant cannot demonstrate prejudice. Widmer failed to show that the disclosure of evidence would have changed the trial result, so the alleged failure of trial counsel to pursue this evidence was not deemed prejudicial. Thus, the trial court's rejection of Widmer's ineffective assistance argument was upheld. In his third assignment of error, Widmer contends that the trial court improperly denied his request for genetic DNA testing of Sarah Widmer's remains, arguing that such testing is crucial to evaluating his claim of ineffective counsel. He believes that if testing shows Sarah had a genetic disorder, it would indicate trial counsel's failure to pursue evidence that could have been exculpatory. The trial court's refusal to grant this testing is argued to have unreasonably obstructed an evaluation of trial counsel's performance. The standard of review for a trial court's decision on postconviction DNA testing applications is to determine if there was an abuse of discretion, defined as an unreasonable, arbitrary, or unconscionable attitude from the court. Sarah Widmer's biological remains and crime scene evidence were preserved following a motion granted by the trial court. In a postconviction petition, Widmer sought access to these remains for DNA testing to investigate a potential congenital heart defect, Long QT Syndrome, which could explain Sarah's drowning. He also claimed that DNA testing could demonstrate ineffective assistance of his trial counsel for not seeking such tests during the trial. The trial court denied his request, finding the arguments unsupported by evidence. On appeal, Widmer contends that the trial court abused its discretion and challenges the constitutionality of Ohio's DNA testing laws under the Due Process and Equal Protection Clauses. An affidavit from medical expert Dr. Michael Gregory Balko describes Long QT Syndrome and its association with drowning. Ohio law, effective since 2003, outlines procedures for postconviction DNA testing under R.C. 2953.71 to .81, allowing eligible offenders to petition for state-funded testing on biological material from their cases. However, Widmer acknowledges he does not meet the eligibility criteria as he seeks to test Sarah's DNA rather than his own, primarily to diagnose a genetic defect instead of excluding himself as a contributor to the crime scene. He argues that he should still be allowed to pursue testing, offering to pay for it himself, and claims that the trial court’s refusal contradicts R.C. 2933.82, which mandates the preservation of biological evidence for developing DNA profiles. Widmer asserts that the trial court acted arbitrarily by denying him access to evidence already preserved for the same purpose. R.C. 2933.82 does not provide guidance on whether trial courts should grant applications for DNA testing, as the Ohio legislature established a separate framework in R.C. 2953.71 et seq. for such applications. Consequently, the trial court's denial of Widmer's request for DNA testing was not unreasonable. Widmer argues that although he is ineligible for state-funded DNA testing, privately funded testing could yield "outcome determinative evidence" under R.C. 2953.71(L). This term refers to evidence that could significantly affect the outcome of a trial, potentially leading to a finding of not guilty or altering the aggravating circumstances in a death penalty case. Widmer believes that testing the DNA of the victim, Sarah, could reveal she had Long QT Syndrome, suggesting she may have drowned due to natural causes rather than murder, and that this evidence could have changed the jury's verdict. While acknowledging Widmer's ability to fund the testing without burdening the state, the court emphasizes that Widmer's interpretation of "outcome determinative" is overly broad. The statute specifically limits testing to the "subject offender's" biological material and that of unidentified perpetrators, indicating that postconviction relief is a narrow remedy. The court concludes that expanding the statutory definition is a legislative matter, rejecting Widmer's argument. Additionally, Widmer asserts that Ohio's interpretation of SB 77 allows a court to order DNA testing if an inmate has timely filed a post-conviction motion and requires the results to assess the merits of the claim. He contends that without DNA testing, the trial court cannot properly evaluate his claim of ineffective assistance of counsel, arguing that a finding of Long QT Syndrome would highlight his counsel's failure to seek DNA testing, which could have influenced the jury's decision. Widmer cites an Attorney General's opinion indicating that R.C. 2953.71-.81 and R.C. 2953.82 are not the only means for obtaining post-conviction DNA testing. Sub. S.B. 11 allows inmates to obtain DNA testing in post-conviction proceedings if it aids the court in evaluating a motion or petition. Widmer claims the trial court abused its discretion by denying genetic testing for an ineffective assistance of counsel claim. However, the court disagrees, noting that Widmer misinterprets the Attorney General's advisory opinion, which pertains to former R.C. 2953.71-2953.82, not the current provisions of Sub.S.B. 77 and R.C. 2953.84. The latter clarifies that post-conviction DNA testing is not limited to the outlined provisions. The Attorney General's opinion does not endorse testing a victim's DNA or require courts to grant such requests, merely suggesting that there may be scenarios where a court could order DNA testing. Accepting Widmer's interpretation would expand the statutes beyond their intended scope, effectively altering the law rather than interpreting it. The court emphasizes that the statutes do not include victims as subjects for DNA testing and that any such inclusion would necessitate significant legislative changes. The court refuses to extend the DNA testing framework to encompass victims, asserting that it is not their role to speculate on legislative intent. Thus, Widmer's interpretation is rejected, and the court maintains that the current statutes do not support his position. No statutory authority exists to modify or expand the provisions of the DNA testing statutes to address situations not explicitly covered. The court finds no abuse of discretion in the trial court's decision regarding Widmer's ineffective assistance of counsel claim, even when considering his arguments. To succeed in a postconviction petition for ineffective assistance, a petitioner must demonstrate both that trial counsel's performance was deficient and that this deficiency prejudiced the defense, as established in Strickland v. Washington. The first prong requires showing that counsel's performance fell below an objective standard of reasonableness, while the second prong necessitates proof that the outcome would likely have been different but for the errors. A failure to prove either prong negates the need to consider the other. A trial court's ruling on such claims is upheld unless there is an abuse of discretion, supported by credible evidence. In Widmer's case, he did not establish that the trial court abused its discretion, especially since proving that the victim had Long QT Syndrome was not essential to assess whether he suffered prejudice from counsel's inaction regarding DNA testing. The trial court noted that the jury had already heard expert testimony about the potential for a sudden cardiac event. Widmer failed to show that, had DNA testing been pursued, the jury's verdict would have changed, as there was substantial evidence supporting his guilt and existing testimony regarding Long QT Syndrome. Lastly, while Widmer acknowledged the challenges his counsel faced in pursuing DNA testing due to technological limitations, the court assumed for analysis that appropriate testing was available at the relevant time. Widmer presented testimony regarding Long QT Syndrome from Dr. Russell Uptegrove, Dr. Michael Gregory Balko, and Dr. William Rogers. Dr. Balko confirmed that Sarah exhibited signs of Long QT Syndrome, specifically Anderson Tawil Syndrome, noting traits such as a cleft palate and headaches. Dr. Rogers explained that certain manifestations of sudden cardiac death might not be detectable during an autopsy, and asymptomatic patients could still possess undiagnosed cardiac conditions that could lead to drowning. Similar autopsy-related testimony was obtained from Dr. Uptegrove during cross-examination. Additionally, Widmer challenged the constitutionality of Ohio's DNA testing scheme, arguing violations of due process and equal protection. The document emphasized that all statutes are presumed constitutional, placing the burden on the challenger to prove otherwise. Widmer alleged that the trial court's denial of access to Sarah's biological remains for DNA testing violated his due process rights. However, it was noted that the U.S. Supreme Court has ruled there is no substantive due process right to access evidence for DNA testing in postconviction cases. For procedural due process, a two-step analysis is required: first, identifying any liberty or property interest deprived, and second, assessing the constitutionality of the procedures used. The analysis concluded that postconviction relief is a statutory, not constitutional, right, and Ohio law does not recognize a liberty interest in postconviction DNA testing of a victim's biological remains, as indicated by existing statutes and case law. Widmer lacks a recognized liberty interest in accessing the state's evidence to test DNA, thus he is not entitled to procedural due process. His claim of equal protection violation regarding R.C. 2953.71 et seq. fails as he is not similarly situated to the offenders that the statute addresses. The distinction between offenders seeking to compare their DNA against unidentified perpetrators and those testing a victim's DNA is substantial, negating any equal protection claims. Consequently, the court finds that Widmer's equal protection argument is without merit. Additionally, Widmer asserts that the trial court abused its discretion by denying access to the grand jury testimony of witnesses Braley and Uptegrove, which he claims he needs to investigate potential false statements and the extent of information provided regarding the determination of Sarah Widmer's death. He argues that this denial violated his procedural and substantive due process rights. Widmer filed a motion to compel access to this testimony or, alternatively, requested an in-camera inspection by the trial court. Widmer contends that Braley and Uptegrove likely provided additional pertinent testimony to the grand jury that could substantiate arguments in his postconviction petition. The rules governing the disclosure of grand jury testimony (Crim. R. 6(E)) stipulate that such disclosures can only occur under court direction in relation to judicial proceedings or upon the court's permission. Although the trial court did not explicitly deny Widmer's motion for disclosure, a pending motion at the time of case disposition is generally presumed denied, rendering the lack of a ruling harmless. In *State v. Greer*, the Ohio Supreme Court established that grand jury proceedings are secret, and defendants lack the right to access transcripts unless they demonstrate a particularized need that outweighs the importance of maintaining secrecy. The trial judge determines this need based on the circumstances and holds discretion in the decision. A denial of transcript release can be overturned only if the trial court abused its discretion, defined as acting unreasonably or arbitrarily. Widmer argues that reviewing Braley's grand jury testimony is vital to evaluate possible false statements that would support his claims under Brady, Kyles, and Napue. He suspects that Braley's testimony regarding his involvement in the autopsy is crucial to understanding any undue influence on Uptegrove’s homicide determination. Widmer’s claims rely on purported newly discovered evidence, including allegations of Braley’s perjury, fabrication of his background, a history of falsehoods for career advancement, and a lack of qualifications for his role, as stated by a police practices expert. However, the court finds that Widmer's basis for seeking disclosure is insufficient, as it is based on unsubstantiated assumptions regarding Braley's conduct in his grand jury testimony. Widmer failed to demonstrate how the nondisclosure of Braley's grand jury testimony compromised his fair adjudication, as established factors did not affect the investigation or evidence against him. Dr. Uptegrove's homicide determination was primarily based on medical factors, not Braley's input, and Widmer did not provide evidence suggesting the grand jury received different information. Consequently, Widmer did not establish a compelling need for the grand jury transcripts that outweighed the need for confidentiality, leading to the conclusion that the trial court did not abuse its discretion in denying his request. In his fifth assignment of error, Widmer argued that the trial court improperly denied his post-conviction petition without a hearing, claiming it demonstrated a prima facie case of constitutional violations, which he argued infringed upon his procedural and substantive due process rights. The standard of review for post-conviction relief appeals is based on whether the trial court abused its discretion, defined as acting unreasonably or arbitrarily. A petitioner is not entitled to a hearing unless they present substantive grounds for relief that warrant such a hearing, supported by affidavits and case files. Widmer asserted that he provided substantive facts indicating violations of his rights through the DD&M report, an affidavit from trial counsel, and the Waller affidavit regarding Braley's influence on the investigation; however, the court disagreed with his claims. The trial court's 18-page opinion was thorough and did not abuse its discretion in denying Widmer's postconviction petition without a hearing, as it found no substantive facts supporting his constitutional claims under Brady, Kyles, Napue, Strickland, and the Due Process Clause. The record supported the trial court's conclusions, and thus Widmer's argument regarding the denial of his petition was overruled. Additionally, although not formally raised as an error, Widmer sought a new trial based on newly discovered evidence from the DD&M report, governed by Crim.R. 33. Motions for new trials based on such evidence must be filed within 120 days of the verdict, unless the defendant can prove they were unavoidably prevented from doing so. The evidence must also meet several criteria, including a strong probability of changing the trial outcome and being discovered post-trial without due diligence. The court found no abuse of discretion in denying Widmer's motion for a new trial for two main reasons: it was filed 239 days after the verdict, and he did not provide clear and convincing proof of being unavoidably prevented from filing on time. Furthermore, the claimed "newly discovered" evidence was deemed immaterial and unlikely to affect the trial's outcome. Consequently, Widmer's fifth assignment of error was overruled, and the judgment was affirmed. Judge Ringland concurs with the majority's judgment but separately addresses the trial court's denial of Widmer's postconviction relief motion regarding genetic testing. He acknowledges that while the trial court did not abuse its discretion, it would be more appropriate to schedule an evidentiary hearing to clarify issues related to the genetic testing request. The current record does not clarify whether the test was available before the third trial or if a positive result would definitively indicate Long QT Syndrome. Ringland emphasizes that in cases involving new scientific inquiries, an evidentiary hearing could enhance understanding and assist in making a more informed decision. However, he notes that under R.C. 2953.21(C), a trial court can deny a postconviction relief petition without a hearing if the petitioner fails to provide sufficient facts for relief. Since Widmer did not meet this burden, Ringland concludes that the trial court's decision to deny the motion was not an abuse of discretion and reiterates his concurrence with the majority.