[Cite as State v. Jury,
2024-Ohio-6049.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-24-017
E-24-018
Appellee Trial Court No. 2013 CR 0472
v.
Brian Jury DECISION AND JUDGMENT
Appellant Decided: December 27, 2024
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Brian Jury, Pro se.
…
SULEK, J.
{¶ 1} Appellant, Brian Jury, pro se, appeals from two judgments of the Erie
County Court of Common Pleas which, respectively, denied his postconviction motions
for DNA testing, request for records, and motion for dismissal of his indictment. For the
reasons that follow, the judgments are affirmed.
I. Facts and Procedural History
{¶ 2} In August 2014, Jury was convicted and sentenced on two counts each of
rape and abduction and one count of felonious assault. Jury filed a direct appeal in this
court, raising six assignments of error relating to the weight of the evidence, hearsay,
improper expert testimony, lesser included jury instructions, and sentencing errors. In
April 2016, this court affirmed Jury’s conviction and sentence. State v. Jury, 2016-Ohio-
2663 (6th Dist.).
{¶ 3} In May 2015, while Jury’s direct appeal was pending, he filed a petition for
a writ of habeas corpus in the Seventh District Court of Appeals challenging the
sufficiency of the indictment. Dismissing the petition, the court found that Jury had an
adequate remedy at law. Jury v. Miller, 2015-Ohio-2998 (7th Dist.)
{¶ 4} In August 2015, Jury filed a postconviction petition for relief raising
multiple claims including: the trial court lacked subject matter jurisdiction over the case
because Jury’s warrantless arrest was without probable cause; his conviction was based
on illegally seized evidence; he was denied the effective assistance of counsel for a
variety of reasons including compelling Jury to testify and failing to investigate leads and
call witnesses; that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing
to provide e-mails which could have provided an alibi; the trial court’s imposition of
consecutive sentences relied on inaccurate information; and the trial court erred by failing
to, sua sponte, change the trial’s venue due to pretrial publicity. The trial court denied
the motion, finding Jury’s claims barred by res judicata.
2.
{¶ 5} In June 2016, Jury filed an App.R. 26(B) application to reopen his direct
appeal raising several assignments of error including: the trial court’s lack of jurisdiction
following his warrantless arrest; ineffective assistance of trial counsel in failing to
challenge the victim’s competency; failure to argue prosecutorial misconduct in that he
was “over-indicted” on trumped up charges, specifically, the number of rape charges in
relation to the time frame of the events; counsel’s ineffectiveness in “suggesting” that
Jury testify; counsel’s failure to investigate the origin of an unknown semen donor;
counsel’s failure to call or recall various witnesses; and prosecutorial misconduct in
failing to disclose unspecified exculpatory evidence. This court denied the application
and held that Jury failed to demonstrate ineffective assistance of appellate counsel.
{¶ 6} Beginning in July 2018, Jury filed multiple motions in the trial court relating
to Jury’s and the victim’s cell phone records. He claimed that the cell site location data
(CSLI) and text messages, which he did not have, was “newly discovered evidence” and
that the records would demonstrate inaccuracies in the victim’s testimony. On January
20, 2022, the court summarily denied the motions as successive petitions for
postconviction relief. Jury appealed.
{¶ 7} On December 9, 2022, this court affirmed the trial court’s judgment. State v.
Jury, 2022-Ohio-4419 (6th Dist.). As to Jury’s motion for relief from judgment, the court
found no Brady violation in the state’s failure to reveal its knowledge of the existence of
the CSLI and text messages records (there was no evidence that the State actually
possessed the records at issue). We found that Jury’s claims were purely speculative and
3.
that he was not unavoidably prevented from discovering the information. Id. at ¶14-15,
37. The court also upheld the trial court’s denial of Jury’s motion for leave to request a
new trial on the basis that under Crim.R. 33, Jury was not unavoidably prevented from
discovering the CSLI data and text messages. Id. at ¶ 47. Finally, the court rejected
Jury’s claim that the State’s failure to obtain the CSLI data and text information denied
him due process of law. Id. at ¶ 51. The court subsequently denied Jury’s App.R. 26(A)
motion for reconsideration.
{¶ 8} In March 2023, Jury filed a Crim.R. 33 motion for leave to file a delayed
motion for a new trial. He claimed he was unavoidably prevented from discovering
either the State’s or his trial counsel’s failure to provide him with over 150 text messages
between his and the victim’s cell phones. Jury also claimed that because of trial
counsel’s failure to investigate, he was prevented from discovering blood and DNA
evidence from the victim’s pants which would have shown that he and the victim had
consensual sexual contact prior to the alleged assault. Jury further claimed that trial
counsel failed to impeach a state’s witness. By separate motion, Jury requested that he be
appointed counsel, be granted an extension of time to produce evidence, and that the
court hold an evidentiary hearing. The trial court denied the motions based on res
judicata.
{¶ 9} On appeal, this court affirmed the trial court’s judgment. State v. Jury,
2024-Ohio-3342 (6th Dist.). We agreed that Jury’s arguments relating to the CSLI data
4.
and the text messages and the identity of the unknown semen donor, had already been
addressed and rejected by the courts and was therefore barred by res judicata. Id. at ¶ 24.
{¶ 10} The court then addressed Jury’s remaining claims that trial counsel failed
to:
(1) investigate or test blood taken from the victim; (2) investigate or test the
inner crotch area of the victim's pants for Jury’s semen or DNA; and (3)
investigate or impeach a state’s witness, could have been raised on direct
appeal or in his December 15, 2021, motion for leave to file a delayed
motion for a new trial. All three of these claims relate to alleged failures by
Jury’s trial counsel that occurred either before or during trial, and all three
of the claims could have been litigated based on the trial record. Because
Jury could have raised these claims during his direct appeal or in his
previous motion for leave, and because they could have been litigated based
on the record, they are also barred by res judicata.
Id. at ¶ 25.
{¶ 11} Relevant to this appeal, in November 2023, Jury filed four motions. Jury
filed an application for DNA testing, claiming that DNA testing of the interior of the
victim’s pants would reveal his DNA and would demonstrate that he and the victim had
consensual sex. The State’s opposition stated that Jury’s request did not meet the R.C.
2953.74(B)(1) criteria because Jury failed to demonstrate that the exclusion of the DNA
results would be outcome determinative and that he could have requested that the pants
be tested at the time of trial.
{¶ 12} Jury also filed a motion requesting records of all preliminary hearings, jury
voir dire transcripts, and any other transcripts to support his claims. Jury questioned his
counsel’s failure to have the voir dire proceedings transcribed. He also moved for a
5.
transcript of the grand jury proceedings. The State opposed the motions noting that Jury
had no pending appeal or comparable postconviction motion entitling him to the
transcripts at State expense.
{¶ 13} Jury filed a Crim.R. 48 motion to dismiss the indictment or, in lieu, to add
the claim to his Crim.R. 33 motion for leave to file a delayed appeal for a new trial. Jury
alleged that trial counsel ineffectively failed to request an in-camera inspection of the
grand jury proceedings, which would reveal inconsistencies in the victim’s statements to
police and medical personnel. Jury also claimed prosecutorial misconduct in the State’s
use of the victim’s perjured testimony and “selective prosecution.” Finally, Jury disputed
the five counts of rape charged within the condensed time frame and the victim’s
testimony that he ejaculated each of the five times. He posited that the State may have
misled the grand jury into believing that he was with the victim much longer than the
time frame presented at trial. In opposition, the State asserted that Crim.R. 48(B) is not
cognizable in a postjudgment proceeding, and that construing the motion as an untimely
and successive petition for postconviction relief, the claims were barred by res judicata.
{¶ 14} On November 28, 2023, the trial court denied Jury’s application for DNA
testing. It found that under R.C. 2953.74(B)(1), Jury failed to demonstrate the exclusion
requirement, or that the DNA testing would prove the DNA found was not his, and the
requirement that DNA was not admissible as evidence because since the 1990s, Ohio
courts have admitted DNA evidence at trial.
6.
{¶ 15} On November 29, 2023, the trial court denied Jury’s records request
finding that no pending appeal or appropriate postconviction proceeding entitled Jury to
the records. The court also denied his Crim.R. 48 motion construing it as an untimely,
successive postconviction relief filing and finding it barred by res judicata.
{¶ 16} Jury timely appealed the judgments.
II. Assignments of Error
{¶ 17} Jury raises three assignments of error on appeal:1
1. The Trial Court erred, abused its discretion, when it prematurely
denied Defendant’s/Appellant’s “Application for DNA Testing” without
giving consideration to construe his “Application …” as a motion to gain
evidence to support his Crim.R. 33(B) filing (now pending appeal); or, to
allow him to find the financial means to pay for it.
2. The Trial Court erred, abused its discretion, when it prematurely
denied Defendant’s / Appellant’s “Motion for Leave to File a Delayed
Motion for a New Trial,” “Motion for Dismissal of Indictment; or in lieu
of, Motion to Supplement Crim.R. 33 Filing (construed as a “‘successive’
post-conviction petition”), etc., without giving consideration to other
various supporting motion requests, specifically to this appeal, “Motion
Request for Records,” that were filed before the Trial Court’s Judgment
Entry and was in support of his Crim.R. 33(B) / Crim.R. 48 (construed as a
“‘successive’ post-conviction petition”) filing(s).
3. The Trial Court erred, abused its discretion, when it improperly
applied res judicata and/or denied Appellant’s “Motion for Dismissal of
Indictment pursuant to Crim.R. 48; or in lieu of, Motion to Supplement
Crim.R. 33(B) Filing” as a successive petition without first giving
consideration to his “Motion for Grand Jury Transcripts pursuant to
Crim.R. 6(E),” (and “Motion Request for Records”), or making the
prerequisite findings of Defendant/Appellant being “unavoidably
prevented.”
1
The assignments of error have been renumbered to reflect the court’s consolidation of
case Nos. E-24-017 and E-24-018.
7.
III. Analysis
A. Application for DNA Testing
{¶ 18} In Jury’s first assignment of error, he contends that, even assuming the
request for DNA testing was filed under the wrong statute, the trial court should have
interpreted the motion “as a request for evidence, or some other appropriately construed
motion.” Jury asserts that DNA testing would aid in proving his ineffective assistance of
trial counsel claim.
{¶ 19} A trial court’s decision to grant or deny an application for DNA testing is
reviewed under an abuse of discretion standard. State v. Quinn, 2018-Ohio-4536, ¶ 10
(6th Dist.), citing R.C. 2953.74(A). An abuse of discretion implies that the trial court’s
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio
St.3d 217, 219 (1983).
{¶ 20} R.C. 2953.71 et seq. governs the procedure for an inmate’s request for
postconviction DNA testing. Jury’s application for DNA testing falls under R.C.
2953.74(B)(1), which provides:
(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,
8.
the results of DNA testing were not generally admissible in evidence, or
DNA testing was not yet available. (Emphasis added.)
R.C. 2953.74(B)(1) lists the requirements conjunctively; thus, the section is interpreted to
mean that a defendant must meet all three criteria. State v. Jordan, 2024-Ohio-2462, ¶ 13
(10th Dist.), citing State v. Daniels,
2020-Ohio-3810, ¶ 35 (5th Dist.); see also State v.
Wilkins,
2005-Ohio-5193, ¶ 10 (9th Dist.).
{¶ 21} The state does not dispute that Jury satisfied the first requirement because
the victim’s pants were not tested at trial.
{¶ 22} As to the second requirement, Jury’s application provided that DNA testing
would not exclude his DNA, but would prove that the two had consensual sex. His
application stated that the testing would have changed the outcome of Jury’s case by
showing that they had consensual sex opposed to her perjured testimony that she was
raped. This court previously commented on Jury’s claim that he and the victim had a
sex-for-hire relationship and that based on their history the sexual acts on the day in
question were consensual. We concluded that considering “the other testimony presented
at trial—which included sources other than the victim, who had a host of credibility
issues—this is insufficient to exonerate Jury.” Jury, 2022-Ohio-4419, at ¶ 35, citing
Jury,
2016-Ohio-2663. Jury, thus, fails to meet the second requirement.
{¶ 23} Finally, Jury’s application fails to satisfy the third requirement. It is
undisputed that in 2014, DNA testing was generally accepted and admissible in evidence.
State v. Roberts, 2006-Ohio-5018. ¶ 30 (5th Dist.); State v. Madden,
2008-Ohio-2653, ¶
10 (10th Dist.). Additionally, even assuming the trial court had construed the application
9.
as a postconviction motion, it would have been denied as barred by res judicata because
the issue could have been raised previously.
{¶ 24} Accordingly, the trial court did not abuse its discretion by denying Jury’s
application because it failed to meet all three R.C. 2953.74(B)(1) requirements. Jury’s
first assignment of error is not well-taken.
B. Crim.R. 33 and Records Request
{¶ 25} In his second assignment of error, Jury asserts that the trial court abused its
discretion by denying his Crim.R. 33 motion for leave to file a delayed motion for a new
trial without first considering his “Motion Request for Records.” He states that the
requested documents were necessary to gather evidence supporting his claims.
{¶ 26} Jury previously appealed the trial court’s November 15, 2023 judgment
denying his Crim.R. 33 motion. Rejecting his claims as barred by res judicata, this court
observed:
Jury contends that the trial court nonetheless abused its discretion by
denying his motion for leave without first allowing “the development of
facts necessary to support Appellant’s claims within his Crim.R. 33(B)
filing.” He asks this court to remand the case “so the facts/record can be
developed, allowing Appellant to gather the supporting material evidence
necessary to support his claims.” But this argument ignores the fact that
Jury's claims are barred by the doctrines of res judicata and the law of the
case because each of Jury’s claims were previously raised and rejected or
could have been raised on direct appeal or in his first motion for leave to
file a delayed motion for a new trial. To allow Jury to search for materials
in support of claims that he is barred from raising would be pointless.
10.
Jury, 2024-Ohio-3342, at ¶ 26. For the reasons enumerated in our August 2024 decision,
Jury’s near-identical arguments in this appeal are meritless. Jury’s second assignment of
error, therefore, is not well-taken.
C. Crim.R. 48
{¶ 27} Jury’s third assignment of error contends that the court erred by denying
his motion to dismiss the indictment as barred by res judicata without first considering his
motion for grand jury transcripts and records request.
{¶ 28} A Crim.R. 48 motion seeks dismissal of the indictment by the court and is
not cognizable in a postjudgment proceeding. State v. Golden, 2023-Ohio-2780, ¶ 7
(10th Dist.), citing State v. Ramsey,
2023-Ohio-2389, ¶ 13 (8th Dist.). Courts may recast
such motions in order to properly categorize the criteria under which it is to be judged.
Id. at ¶ 8, quoting State v. Schlee,
2008-Ohio-545, ¶ 12. R.C. 2953.21 provides a
mechanism for any person convicted of a criminal offense and who claims that there was
such a denial or infringement of the person’s rights as to “render the judgment void or
voidable under the Ohio Constitution or the Constitution of the United States.” Here,
Jury’s claims fall under the postconviction relief statute.
{¶ 29} Jury’s Crim.R. 48 motion claimed that he was tried on an indictment based
“partially on perjured testimony,” with the State’s knowledge. Jury disputed the number
of rape charges in the indictment as compared with the alleged time frame of the crime.
Jury also claims that his trial court was ineffective because he failed to subpoena the cell
phone records and request an in-camera inspection of the grand jury proceedings.
11.
{¶ 30} Construing the motion as an application for postconviction relief, the
claims are barred by res judicata as they have been previously raised and rejected or
could have been raised. See R.C. 2953.23(A)(1). Jury’s third assignment of error is not
well-taken.
IV. Conclusion
{¶ 31} For the foregoing reasons, the judgments of the Erie County Court of
Common Pleas are affirmed. Jury is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
12.
