x999-2" type="dissent"> Michael J. Corrigan, Judge,

dissenting.

{¶ 21} I respectfully dissent from the majority’s decision to remand Buehler’s application for DNA testing. I believe that the majority’s very narrow reading of the DNA testing statutes fails to consider the impact of other statutory provisions that obviate the need for the state to determine whether DNA exists as a predicate for further proceedings by the court.

{¶ 22} While I agree that R.C. 2953.75 requires the prosecuting attorney to determine whether biological material exists upon the application for DNA testing, that section cannot be read in isolation from other aspects of the DNA testing statutes. R.C. 2953.74(B)(1) states:

{¶ 23} “(B) If an eligible inmate 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:

{¶ 24} “(1) The inmate did not have a DNA test taken at the trial stage in the case in which the inmate was convicted of the offense for which the inmate is an eligible inmate and is requesting the DNA testing regarding the same biological evidence that the inmate seeks to have tested, the inmate shows that DNA exclusion 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.”

{¶ 25} In State v. Wilkins, Summit App. No. 22493, 2005-Ohio-5193, 2005 WL 2401593, ¶ 18-19, the Ninth District very recently considered this precise question and, in disagreeing with the position taken by the majority, stated:

{¶ 26} “However, [in State v. Hightower, Cuyahoga App. Nos. 84248 & 84398, 2005-Ohio-3857] the Eighth District did not conduct an analysis of R.C. *217 2953.74(B), which we feel is essential in determining whether, and at what point, the trial court erred in rejecting an application. As we discussed above, Defendant did not meet the outcome determinative criteria of R.C. 2953.74(B)(1). In reading 2953.74 to 2953.81 in pari materia, we find that the trial court was not required to proceed further than 2953.74(B) since Defendant did not meet the requirements of B(l) or (2). If a petitioner meets the requirements of 2953.74(B)(1) or (2), then the trial court would proceed to 2953.74(C).

{¶ 27} “R.C. 2953.74(C) lists six separate factors, and the trial court may accept the application only if all six factors apply to the inmate. We believe that it is at this point in the statutory analysis that the trial court should require the prosecuting attorney to consult with the testing authority and prepare a report, under R.C. 2953.76, as it would be impossible for the trial court to consider whether or not a defendant meets the six factors without the state’s report. The second factor of R.C: 2953.74(C) even refers to the state’s report, required by R.C. 2953.76, as subsections (a), (b) and (c). We agree with defendant and the Eighth District that it would be procedural error if the trial court arrived at R.C. 2953.74(C) and denied a defendant’s DNA application without requiring the state to submit a report under R.C. 2953.76. In this case, however, defendant did not meet the requirements of R.C. 2953.74(B), and, reading the statute as a whole and sequentially, this court feels that a defendant would have to first meet either R.C. 2953.74(B)(1) or (B)(2) before a trial court would consider the six factors under R.C. 2953.74(C).”

{¶ 28} The approach taken in Wilkins is a sensible one, for like many other areas of criminal law, it requires a threshold showing as a predicate to the relief. For example, no defendant would be entitled to appointment of counsel without a predicate showing of indigency, nor would the court order a competency examination without a showing that the defendant lacked the necessary capacity.

{¶ 29} The court took the practical step of considering the substantive basis for Buehler’s application for DNA testing and concluded that even if it granted Buehler’s application, the results of DNA testing would not be outcome determinative. This methodology is in the best spirit of conserving judicial resources. If Buehler’s application was meritless on its face, why force the state to go to the time and expense of determining the existence of DNA? To permit any applicant to make the state scramble to assemble DNA evidence without first making a requisite showing is the judicial equivalent of the tail wagging the dog. 4

*218 {¶ 30} The state went forward on the theory that Hedrick beat the victim unconscious while Buehler held her from behind. Buehler then beat the unconscious victim until she died. There was evidence that the victim struggled, and it would be entirely consistent with the evidence if DNA results showed Hedrick’s genetic material and not that of Buehler, for we can assume that if Buehler held the victim from behind and she struggled, it is probable that she was struggling against Hedrick as he began to beat her. Since Buehler did not attack the victim until she was unconscious, she could not have come in contact with him. Moreover, the identity of Buehler as a perpetrator was not at issue, because he had been identified by his codefendant.

{¶ 31} In short, not only would it be no surprise to learn that the victim had Hedrick’s DNA under her fingernails, it would be rather surprising to learn that the genetic material did not belong to Hedrick. Thus, DNA testing would show nothing new and would most certainly not be outcome determinative. That being the case, the court did not err by not requiring the state to determine the existence of genetic material from the victim.

. Certainly, the majority’s decision is at odds with that of the Ninth District in Willems. I have no doubt that DNA cases of this type will become more and more frequent in the future as inmates learn of this new statutory right to obtain DNA testing, so we (or the state) should certify this conflict for resolution in order to facilitate the orderly disposition of these cases.

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