-.R^ ^ INAL

IN THE SUPREME COURT OF OHIO

STATE OF OHIO : Appeal from the Allen CountyCourt of Appeals, Third Appellate District

Plaintiff-Appellee,Court of Appeals

V. : Case No. 1-11-18

^ -0 8 11 3 uMARK A. WANGLER

Defendant-Appellant.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT, MARK A. WANGLER

Christopher R. McDowell (Counsel of Record)Dinsmore & Shohl LLP255 East 5th Steet, Suite 1900Cincinnati, Ohio 45202513.977-8588513.977-8566 (fax)cmcdowel@dinslaw.com

COUNSEL FOR APPELLANT, MARK A. WANGLER

Jana E. EmerickAssistant Prosecuting AttorneyA11Pn C:nnntv_ Ohio- ------ _ -- -----., - --- -Court of Appeals Bldg., Suite 302204 North Main StreetLima, Ohio 45801

COUNSEL FOR APPELLEE, STATE OF OHIO

JAN 15 ?013

CLERK OF COURTSUPREME COURT OF 0H10

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .................................................................................................................i

EXPLANATION OF WHY THIS FELONY CASE IS ONE OF PUBLIC ORGREAT GENERAL INTEREST INVOLVING SUBSTANTIALCONSTITUTIONAL QUESTIONS ... ............................................................................................1

1. STATEMENT OF THE CASE AND FACTS .......................................................................2

II. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ..............................................4

Proposition of Law No. I: Where evidence has been improperlyadmitted, a court may determine that it is harmless because it iscumulative of other property introduced evidence only if there is adetermination that the guilty verdict act-ually rendered in the case wasunattributable to the error. The mere fact that there is other evidencethat covers the same subject matter is not, in and of itself, sufficient todetermine that the error is harmless beyond a reasonable doubt ...................................4

A. The Journals Are Not Cumulative Of Other Evidence .........................................4

B. The Journals Compared To The Witness Testimony ...........................................6

Proposition of Law No. II: A trial court fails in its Daubertgatekeeper role when it admits scientific testimony that is notgenerally accepted or where there is an analytical gap betweenthe accepted scientific premise and the conclusions of the ..................................9

- -- III:of Law No. 11I: A trial court abuses its discretion when itimproperly limits qualified expert testimony .......................:......................................13

CONCLUSION ..............................................................................................................................15

PROOF OF SERV ICE ...................................................................................................................16

APPENDIX:

State v. Wangler, 3d Dist. No. 1-11-18, 2012-Ohio-4878 (October22, 2012 Judgment Entry and Opinion) .............................................................. A-1

State v. Wangler, 3d Dist. No. 1-11-18, 2012-Ohio-4878(December 5, 2012 Judgment Entry Denying 26(A) Motion) ........................... A-2

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EXPLANATION OF WHY THIS FELONY CASE IS ONE OF PUBLIC OR GREATGENERAL INTEREST INVOLVING SUBSTANTIAL CONSTITUTIONAL QUESTIONS

This case presents critical issues of public importance and substantial questions of

constitutional law. Left uncorrected, the appellate court's decision countenances convictions

secured upon unlawfully seized evidence and establishes dangerous precedent nullifying the trial

court's federal and state constitutional gate keeping responsibilities under Daubert v. Merrell

Dow, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 46 (1993).

Dr. Mark Wangler was wrongfully convicted of murdering his wife, Kathy, years after

she died from carbon monoxide poisoning. The appellate court determined that Dr. Wangler's

Journals were unconstitutionally seized from his home and improperly admitted. Nevertheless,

the court found the constitutional error was harmless beyond a reasonable doubt. The harmless

error finding was not based on overwhelming evidence of guilt, but only on a determination that

the information contained in the Journals was: (1) "cumulative in nature," and (2) "contained

many entries that were favorable to [Dr. Wangler]." State v. Wangler, 3d Dist. No. 1-11-18,

2012-Ohio-4878, ¶ 51-52. The court conducted no further analysis of the Journals' impact on

the jury's verdict. The court's holding is in conflict with accepted constitutional case law.

In reality, the court did not conduct a harmless error analysis at all. Once it determined

that the tainted evidence was duplicative in some way of properly admitted or arguably helpful

evidence, the court held that the constitutional error was ipso facto harmless. The court's

holding ignores the overall object of harmless error analysis - to determine if there is a

reasonable possibility that the tainted evidence may have contributed to the conviction. See State

v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph seven of the syllabus.

In addition to the above dangerous precedent, the court disregarded proper Daubert

analysis. The court's opinion permits litigants to submit "scientific" evidence that unjustifiably

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extrapolates from an accepted premise to an unfounded conclusion. As it stands, the court's

holding has negative implications for the fairness of civil and criminal cases throughout Ohio.

Here, the State was permitted to introduce expert testimony based on samples taken from the

home years after Mrs. Wangler's death and assert that they showed that vehicle exhaust was

introduced into the home at the time of her death. The "science" upon which this testimony was

based has never been introduced in any court of law before or since. This federal and state

constitutional error was compounded when the trial court excluded Dr. Wangler's expert's

testimony that would have contradicted the State's expert's findings.

I. STATEMENT OF THE CASE AND FACTS

Mrs. Wangler died in her home on September 4, 2006 as a result of CO poisoning. Dr.

Wangler was sleeping when he was awakened by the sound of a CO detector. He searched the

home for the source of the alarm and found his wife on the floor having a seizure. He quickly

called 911 and performed CPR until help arrived. None of the first responders smelled vehicle

exhaust in the house or garage. Immediately after the Wanglers were taken to the hospital, the

gas company inspected the home and "red tagged" the water heater. In the gas company's

opinion, the water heater presented a dangerous CO hazard because it was improperly ventilated.

Seven months later, police searched the home and exceeded the scope of the search

warrant when they seized Dr. Wangler's private Journals and other evidence not outlined in the

warrant. Over a year after Mrs. Wangler's death, the police conducted a second search in which

they seized ducts from the residence. The ducts were later submitted for testing in the hope that

they would show the presence of "biomarkers" allegedly relating to vehicle exhaust.

Dr. Wangler was indicted three years after his wife's death on one charge of aggravated

murder. A jury trial was held between February 28 and March 16, 2011. Prior to trial, Dr.

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Wangler filed motions to suppress evidence seized from the searches of his home. The trial

court denied the motions and permitted the State to introduce the Journals seized from the home.

The State's purported expert, Dr. Schauer, opined that the ducts from the home had

biomarkers that allegedly showed that vehicle exhaust traveled through them at the time of Mrs.

Wangler's death. Dr. Wangler moved to exclude this testimony, but the motion was denied.

At the Daubert hearing, Schauer testified concerning the tests performed on the ducts.

He testified that: (1) he knew of no case, "anywhere, anytime in which the techniques and

methods" used in this case were admitted; (2) he knew of no peer-reviewed article that used the

presence of these biomarkers to show the presence of CO; (3) he never personally inspected the

home and did not know the date when Mrs. Wangler died or the date when the samples were

collected; (4) prior to examining the ducts, he had never before performed any analysis on duct

work and had no experience testing such samples; (5) he had not published any articles on soot

deposits inside homes; (6) he had never conducted any peer-reviewed experiments working with

wipe samples; and (7) his overall estimated error rate was 10 to 20%.

Schauer further testified that: (8) he conducted no tests of other homes in the area to

compare to his data and such a comparison would have been useful in validating his opinions; (9)

a vent cover was purchased from a hardware store in Lima and used as a control; however, it

tested positive for the same "trace amount(s) of the mobile source fingerprint" found in the

Wangler home; (10) he used no controls for some of the samples he took; (11) the only control

he used for the ductwork was the outside of the same piece of ductwork but he knew of no peer-

reviewed literature that states this is a valid control; (12) he was not aware of any peer-reviewed

literature where someone had taken wipe samples and then attempted to go back in time and

show what an event looked like years before; (13) the chemical compounds that, in his opinion,

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evidence vehicle exhaust are in the air everywhere and can be found "in most places on the face

of the earth," including inside homes; he was not aware of the concentration of these compounds

in the air in Lima; (14) no EPA or federal standards govern the methodology used by the Lab in

this case; (15) he created the methodology used to conduct the testing himself; and (16) he

considered data below the report limit set by the Lab in reaching his conclusions.

While the trial court permitted Schauer to testify, it excluded defense expert, Fred

Teeters, on Daubert grounds. Teeters would have testified that candles, not vehicle exhaust,

were the source of the alleged biomarkers and soot inside the home.

On March 16, 2011, the jury found Dr. Wangler guilty of aggravated murder, and

sentenced him to life with parole eligibility after 25 years. Dr. Wangler moved for Judgment of

Acquittal on March 29, 2011. On April 8, 2011, the trial court denied that motion. (Doc. 443)

A notice of appeal was filed on April 12, 2011. The court issued its opinion on October 22,

2012. Dr. Wangler filed a timely request for reconsideration pursuant to App.R. 26(a), which

was denied on December 5, 2012.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I: Where evidence has been improperly admitted, a court maydetermine that it is harmless because it is cumulative of other properly introduced evidence onlyif there is a determination that the guilty verdict actually rendered in the case was unattributableto the error. The mere fact that there is other evidence that covers the same subject matter is not,in and of itself, sufficient to determine that the error is harmless beyond a reasonable doubt.

A. The Journals Are Not Cumulative Of Other Evidence.

Contrary to the finding of the court, the Journals are not cumulative of other evidence.

The court found that the Journals were cumulative of other evidence concerning the "ruinous

state of Mark and Kathy's marriage." Wangler at ¶ 51. However, the State's use of the Journals

went well beyond an account of the "ruinous" state of the marriage. The State used the Journals

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to show Dr. Wangler's state of mind both before and after his wife's death. Dr. Wangler did not

testify at trial and the Journals were the only evidence that showed his state of mind.

Exhibit 46(a) is one of the unlawfully seized Journals that were introduced at trial. The

State was permitted to highlight in yellow certain parts of this journal for the jury to read. The

State highlighted information in the journal concerning (1) Dr. Wangler's suicidal thoughts and

actions - "I thought about suicide;" "It would be best if I would just die;" "I went to my bed

room, took my shotgun and attempted suicide;" (2) Dr. Wangler's extra-marital affair - "I did

have an affair with her for about two months;" (3) Dr. Wangler's wife's previous affair - "I

found Kathy and Brian with their arms around each other in a passionate kiss;" (4) Dr. Wangler's

belief that his wife was having a new affair shortly before her death - "Two lady's came up to

me... and asked if I thought Kathy was having an affair.... each of these ladies pointed out

several things that made me suspicious;" (5) information concerning Dr. Wangler's feelings of

anger: "I am sometimes like a Doberman. A Doberman is really a sensitive dog but it is easy to

make them mean by mistreating them.... I see that I am sensitive and that I tend to keep anger

inside until I explode;" (6) detailed information on Dr. Wangler's innermost thoughts - "I am not

satisfied with my sex life," "Sometimes I feel rage," "Our marriage is not what 1 dreamed it

would be," "I do not feel loved." "I feel trapped with no escape," "I do not feel assured that

Kathy will never leave me," "People have no idea what our relationship is really like," "I am

suspicious of Kathy," "Kathy has only had sex with me one time in the past year."

The State argued in closing argument that:

those journals . . . depict a man who was depressed beyond belief, who wasincreasingly angry and obsessed about his wife and his wife's whereabouts andwhat was going on with her. And a man who had suffered repeated humiliationsthrough the years and more specifically at that time by the constant and completerejection of him by his wife. Those words that you heard in those journals...they describe a man who is so depressed and so miserable and so trapped that by

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July of 2006, just weeks before his wife has died, he's thinking about killinghimself and he writes that he's thinking about using carbon monoxide....

(Tr. Vol. 12, p. 2743-44)(emphasis added). The last quote comes from an entry that has nothing

to: do with the Wanglers' alleged "ruinous" marriage, but rather a quote from one of the Journals

wherein Dr. Wangler writes, "thoughts of suicide are a little strong again. Satan is attacking in

new way this time, using car exhaust. This time I have been tempted through the internet. Please

Lord, block these thoughts from me." (Tr. Vol. 8, p. 2056) The fact that Dr. Wangler was

considering suicide by carbon monoxide just weeks before he allegedly murdered his wife with

carbon monoxide is neither cumulative of other evidence, nor is it favorable to the defense.

The primary use to which the State put the Journals was not, as the court found, to show

the "ruinous" state of the Wangler marriage. Instead, they were used to depict Dr. Wangler's

state of mind. The Journals were used to characterize Dr. Wangler as a "trapped," suicidal, and

"desperate" man who saw no alternative out of his situation but to murder his wife. The State

argued that the Journals, not witness testimony, contradicted the defense theory that Dr. Wangler

was a kind and compassionate person. The State asserted that the Journals presented evidence of

Dr. Wangler's true thoughts and motive, and that the Journals contained evidence that Dr.

Wangler planned to kill his wife using carbon monoxide. As such, the Journals are not

cumulative of any other testimony or evidence, nor were they helpful to the defense.

B. The Journals Compared To The Witness Testimony

The court asserts that the State called "several witnesses who testified in some degree

about the difficulties Mark and Kathy were experiencing in their marriage***." Wangler at ¶ 51.

Five witnesses testified concerning the relationship. The first, Joanne Zacharias, asserted that the

Wanglers did not go places together, that the marriage was "strained," and that Dr. Wangler

criticized his wife and did not want to be buried near her. The second witness, Brenda Keller,

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testified that Dr. Wangler asked her to pray for the marriage because they were having problems.

Next, Sherri Miller testified that Dr. Wangler was critical of his wife's appearance. The fourth

witness, Diana Boedicker, stated that Mrs. Wangler was considering divorce, purchased

expensive jewelry, and that Dr. Wangler expressed no sadness at his wife's funeral. Finally,

Joseph Schlarman testified that the Wanglers did not act like a couple, Mrs. Wangler wanted out

of the marriage, and Dr. Wangler was faking sorrow after his wife's death.

The testimony of these witnesses was contradicted by several defense witnesses. Aaron

Wangler, Dr. and Mrs. Wangler's son, testified that Dr. Wangler was "very, very upset. Very

upset. Very sad," and that he was at his father's side throughout the funeral and graveside

service and that Dr. Wangler appeared "devastated" and was "crying." He testified that Dr.

Wangler was not faking sorrow. He further testified that Dr. Wangler expressed a desire to be

buried next to Mrs. Wangler, but that those plans changed because other family members wanted

her buried in a different city. The Wanglers' other son, Nathan, echoed his brother's testimony

concerning his father's grief. Nathan also testified that his parents loved one another. P.J.

Minor; who was at the hospital with Dr. Wangler after Mrs. Wangler passed, testified that he was

crying and upset and was not faking sorrow. Diane Stuber testified that she was Mrs. Wangler's

best friend, and that, although the Wanglers "struggled like anybody else through their

marriage," they loved each other. She also testified that she was with Dr. Wangler when he was

told his wife died and that he was "bawling like a baby."

Based on the witnesses' testimony, the state of the Wanglers' marriage was, at best, an

open question. Although some witnesses testified Dr. Wangler was not sad after his wife's

death, others testified that he was genuinely sorrowful. While there were clearly issues in the

marriage, the problems, based on the witness testimony, could not be characterized as out of the

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ordinary, much less "ruinous." The Journals, however, are a different form of evidence. They

are a direct firsthand account of the marriage and provide undispiu.table detail of an awful marital

situation. The Journals go beyond any witness testimony and do describe a "ruinous" marriage.

The fact that the Journals contain information that is, in part, duplicative of some witness

testimony does not automatically render them "cumulative" of other evidence as that term is used

for harmless error analysis. The cumulative evidence rule is based on the premise that reversal is

not required where there is evidence in the record that "neutralizes" the prejudice resulting from

the improper admission of evidence on the same subject. Gibbs, Prejudicial Error: Admissions

and Exclusions of Evidence in the Federal Courts, 3 Vil.L.Rev. 48, 55 (1957). However, the

error is not harmless in a cumulative sense unless the neutralizing evidence has the same

probative effect as the evidence improperly admitted and is of the same degree of persuasiveness

as the evidence in the record. See Housman v. Fiddyment, 421 S.W.2d 284, 291 (Mo. 1967).

"To be truly cumulative, the evidence must be of the same kind tending to prove the same point."

Dudley, The Cumulative Evidence Rule and Harmless Error, 40 Mo.L.Rev. 79, 82 (1975).

The contested testimony of witnesses is not the same kind of evidence as journals kept by

an accused, nor, in this case, was the witness testimony as persuasive as the words written in Dr.

Wangler's own hand. Therefore, the Journals are not "cumulative" of the witnesses' testimony.

Even if the Journals were cumulative of other evidence, this would not be the end of the

harmless error analysis. The Supreme Court has stated that: "[w]e do not suggest that, if

evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence,

though tainted, is harmless error." Harrington v. California, 395 U.S. 250, 254 (1969). For a

court to conclude that tainted evidence is cumulative of other evidence and, thereafter, end its

analysis creates a substantial likelihood of injustice. In fact, it ignores the overall object of the

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analysis, which is to determine if there is a reasonable possibility that the evidence may have

contributed to the conviction. See Bayless, 48 Ohio St.2d at paragraph seven of the syllabus.

Instead of merely determining that unconstitutionally seized evidence is cumulative of

other evidence and ending the analysis, the United States and Ohio Constitutions require that an

appellate court analyze the character and quality of the illegally obtained evidence bearing on the

same issue and appraise the possible impact upon the jury of the wrongfully obtained evidence.

See State v. Brown, 65 Ohio St.3d 483,491, 605 N.E.2d 46 (1992) (Wright, J., dissenting). That

was not done here. Had the court performed the required analysis, it would have determined that

it is impossible to say beyond a reasonable doubt that the Journals did not contribute to the

conviction. Thus Dr. Wangler's state and federal due process rights were violated when the

Journals were published to the jury. The Court should hear this case to clarify that a finding that

evidence is cumulative does not automatically result in a finding that the error is harmless.

Proposition of Law No. II: A trial court fails in its Daubert gatekeeper role when itadmits scientific testimony that is not generally accepted or where there is an analytical gapbetween the accepted scientific premise and the conclusions of the expert.

Pursuant to well-established Daubert analysis, the testimony of Schauer should have been

excluded as unreliable. Dr. Wangler's federal and state constitutional rights were violated when

untested scientific evidence was introduced. In addition to failing to meet the four-prong test set

by this Court in State v. Nemeth, 82 Ohio St.3d 202, 211, 694 N.E.2d 1332 (1998), the testimony

included conclusions that were unsupported by the underlying data. Expert conclusions must be

supported by the underlying data and unwarranted extrapolations must be excluded. See

Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, at ¶18.

In Valentine, this Court considered whether "Evid.R. 702(C) requires a scientifically

valid connection between the opinion of an expert witness and the resources relied upon by the

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expert." Id. at ¶1. To be "scientifically or technically reliable, expert testimony *** must `fit'

the case at hand." Id. at ¶30. "[A]n expert's opinion would not fit if sources relied upon by the

expert did not actually support the expert's opinion." Id. at ¶32; see also In re: Welding Fume

Prod. Liab. Litigation (N.D.Ohio 2005), No. 1:03-CV-17000, 2005 U.S. Dist. LEXIS 46164, at

*29 (a court "must not admit expert testimony if the expert `has unjustifiably extrapolated from

an accepted premise to an unfounded conclusion. "').

Schauer proffered two primary opinions. First, Schauer testified that wipe samples taken

from the duct work seized from the Wangler home over a year after Mrs. Wangler's death

showed the presence of certain chemicals that, based upon his research, are derived only from

exposure to an internal combustion engine. Second, Schauer opined that the chemicals in

question were quickly introduced into the duct work at the time of Mrs. Wangler's death and that

there was an unnaturally high concentration of the chemicals deposited at that time.

Both the trial and appellate court focused their Daubert analysis on the first part of

Schauer's opinion. The court found that "Schauer testified that the chemical fingerprint was

similar to the known chemical fingerprint associated with soot found in exhaust emitted from an

engine***" and that the "opinion as to the origin of the soot is reasonably drawn from the

underlying data." Wangler at ¶ 78. While Dr. Wangler takes issue with this conclusion, and

argues that Schauer failed to account for a potential false positive from candle soot and that the

presence of the biomarkers, even if they are from vehicle exhaust, is meaningless because the

biomarkers can be found everywhere on Earth, the real Daubert issue in this case is with the

second portion of Schauer's opinion.

As to the second part of Schauer's opinion, the appellate court concluded that Schauer's

opinion that the soot sampl_es were deposited over a short period of time was permissible based

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on deposition velocity data (the rate at which particles deposit on a surface), as well as the

photographs depicting a V-shaped soot mark in the bedroom where Mrs. Wangler died. Id. at ¶

79. Thus, the court found that Schauer was able to determine "that a high concentration of soot

traveled through the ventilation system." Id.

Schauer's opinions, however, went further than the court recognized. Schauer opined not

only that there was a high concentration of soot in the home, but also that vehicle exhaust was

introduced directly into the ducts at the time of Mrs. Wangler's death. This opinion constitutes

an unjustifiable extrapolation from an accepted premise (the testing of air samples to determine

pollutants) to an unfounded conclusion (the testing showed in this case that the Wangler home

was previously subjected to an unnatural and sudden accumulation of vehicle exhaust at the time

of Mrs. Wangler's death). In other words, Schauer's data did not "fit" his conclusions, and his

conclusions presented "too great an analytical gap between the data and the opinion proffered."

See Valentine at ¶18. As such, the trial court incorrectly admitted the testimony.

The deposition velocity numbers mentioned in the court's opinion and upon which

Schauer relied to reach his conclusions were not disclosed to the defense because the trial court

ruled that Schauer's mathematical formulas were privileged "work product." (Doc. 267). As a

result, neither the trial court nor the defense was able to fully explore the methodology used by

Schauer to arrive at his conclusions. Schauer admitted that he did not use standard deposition

velocity equations, but instead compiled his deposition velocity numbers from "different

sources" and "estimated" what the concentration would be for different periods of time. Schauer

further admitted that there was disagreement between the various sources used to create his data,

and that he was uncertain what the actual error rate of his deposition velocity analysis was.

Because Schauer would not disclose how he arrived at his deposition velocity numbers or even

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what the numbers were, Schauer's work could not be replicated, confirmed, or rebutted by Dr.

Wangler's expert. Pursuant to Daubert, courts should not admit scientific conclusions that are

based on secret novel methodology or that represent an unsupported leap from accepted science.

The methodology used by Schauer to reach his conclusions is different from anything he

or anyone else has used before. The methodology used in this case is not used or accepted by

other well respected labs in America. Indeed, prior to paying Schauer to perform this work, the

police contacted the Ohio State Crime Lab, the Ohio State Arson Lab, the FBI crime lab in

Washington D.C., the EPA lab in Washington D.C. and the EPA laboratory in Ann Arbor,

Michigan, all of which stated that they could not perform the tests. (Tr. Vol. 7, p. 1620-23)

The determination by the court that Schauer's opinion is bolstered by the photographic

evidence of the V-shaped soot stain on the bedroom wall where Mrs. Wangler died is not well

founded. The court's opinion ignores Aaron and Nathan Wangler's testimony, and the fact that

Schauer is not an expert in forensic photographic analysis and has not published any peer-

reviewed articles relating to his special ability to look at photographs of soot stains and divine

from such photographs the source and age of a stain. The room in question was previously

Aaron's bedroom. Aaron testified that the stain was there four to five years before his mother's

death and that when he moved to go to college that he "absolutely" recalls seeing the V-shaped

soot stain on the wall. Aaron further testified that his mother burned candles "all the time."

Nathan Wangler also testified that the V-shaped stain was not new and that the mark was on the

wall when he left for college in 2001. Nathan could not say for sure what made the soot stain on

the wall, but he did note that his mother burned "lots of candles in the home."

Finally, Dr. Schauer's opinions are not on an area in which he is an expert. The State

obfuscated Schauer's area of expertise throughout this case. Schauer was qualified as an expert

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in "environmental chemistry and aerosol science." (Tr. Vol. 8, p. 1862). Aerosol science

investigates the physical and chemical properties of airborne particles. While Schauer may be an

expert in that area, this case does not deal with an analysis of airborne particles. Instead, in this

case, Schauer tested wipe samples from a home to show that someone was murdered there years

before the samples were ever taken. Schauer is not an expert in this area - no one is.

The problem in this case is not so much the testing of the wipe samples - although there

are many issues with those tests. The major Daubert issue in this case is the application of the

testing to a new area of "science." Because no one has previously looked at wipe samples from

homes in an effort to go back in time and determine what happened in the residence years before

the samples were taken, there is insufficient data from which to draw accurate conclusions.

There is no baseline for what wipe samples from a home should look like. No one has

established how much of the biomarkers could be expected to be found in an average 5, 10, or 15

year-old home. There are no established controls or recognized averages. There are no peer

reviewed articles on the subject. Schauer's only effort to establish an accurate comparison to the

Wangler home failed. That is, when data was collected from a home in the same subdivision as

the Wanglers' home, the tests actually showed more of the alleged biomarkers for vehicle

exhaust than were found in the Wangler home.

In sum, Schauer essentially took the known science of testing air samples to determine

pollutants and extrapolated from that accepted premise that Mrs. Wangler was murdered in her

home by vehicle exhaust based upon his analysis of wipe samples taken years after her death and

his observation of a photo of a stain on a wall. There was no "fit" between the technically

reliable science and Schauer's conclusions. If left uncorrected, the court's published opinion

establishes damaging precedent that will cause mischief for years to come.

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Proposition of Law No. III: A trial court abuses its discretion when it improperly limits

qualified expert testimony.

The appellate court erroneously concluded that, although it may have come to a different

conclusion, the trial court did not abuse its discretion in excluding Teeters's testimony. Wangler

at ¶ 91. The court also erred in finding that, even if the limitation of Teeters's testimony was

improper, the error was harmless because another defense expert testified to the fact that burning

candles can produce soot that would contain hopanes, steranes, and PAH's.l Wangler at ¶ 92.

The trial court abused its discretion and violated Dr. Wangler's federal and state

constitutional rights when it permitted the State to object to Teeters minutes before he was to

testify, compounding the error by only allowing Dr. Wangler ten minutes to overcome the

challenge, and ultimately in severely limiting Teeters' testimony to the jury. The trial court ruled

that Teeters had "no qualifications to be an expert relative to candle soot in the house." (Tr. Vol

11, p. 2636) However, the court found that Teeters had "sufficient background in tracing of

biomarkers and emissions such to at least, at this point, present evidence* * * relative thereto."

(Id.) The court's ruling is not logical and demonstrates the trial and appellate courts'

misunderstanding of the science in this case.

The trial court's ruling precluded Teeters, who was qualified in the area of "forensic

chemical analysis" and has over 30 years' experience in determining the source, cause, and

origin of chemical contaminants, from testifying as to candle soot in the Wangler home, but

permitted him to testify concerning tracing of biomarkers and emissions. As a result, Teeters

testified that the chemical compounds in the ducts were not from vehicle exhaust, but he was

prohibited from testifying that the same chemicals in the ducts and from the stain on the bedroom

' These are the chemicals that make up the alleged biomarkers for vehicle exhaust. The court'sopinion also erroneously states that the defense did not proffer Teeter's testimony. Wangler at

¶ 91. However, the defense did proffer Teeters's testimony. (Tr. Vol 11, p. 2659-60).

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wall where Mrs. Wangler died were from candles, or that candles, in this case, created a false

positive for vehicle exhaust in Schauer's tests.

Teeters, pursuant to the Daubert standard discussed in the previous section, was

eminently more qualified than Schauer to testify on these subjects. Yet, the trial court permitted

Schauer, who had not previously performed studies on candles or published articles on soot

stains inside homes (Daubert Tr. p. 235), to testify that the soot in the home was not from

candles. Schauer even admitted on cross-examination that candles are a potential source of soot

and PAHs in homes.

Had Teeters been permitted to fully testify, he would have opined that the compounds

emitted from burning candles created a false positive for the alleged vehicle exhaust biomarkers

inside the Wangler home and that the soot stain on the wall of the bedroom originated from

candle soot and not vehicle exhaust. (Tr. Vol. 11, p. 2659-60). Even the court recognized that

Wangler's other expert "did not go so far as to conclude that [these chemicals] may result in a

false-positive for [vehicle exhaust]," Wangler at ¶ 92, which demonstrates the harm. He further

would have tied all the other testimony together with the ultimate conclusion that candle soot

created a false-positive in the home for vehicle exhaust. Because this ultimate conclusion was

what all the other testimony was leading up to and the jury was not permitted to hear the opinion

from the expert, Dr. Wangler was harmed by the exclusion of the testimony.

CONCLUSION

For the reasons discussed above, this felony case involves matters of public and great

general interest and substantial constitutional questions. Dr. Wangler respectfully requests that

the Honorable Court accept jurisdiction in this case so that the important issues presented will be

reviewed on the merits.

15

Respectfully submitted,

Christop er R. McDowell (0072218)DINSMORE & SHOHL LLP255 East Fifth Street, Suite 1900Cincinnati, Ohio 45202Phone: 513.977-8588Fax: 513.977-8566Christopher.mcdowell (,dinslaw. com

Counsel for Defendant-Appellant,Dr. Mark A. Wangler

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief was sent via U.S. mail, postageprepaid, on this 15th day of January, 2013 to Juergen A. Waldick, counsel for the State of Ohio,Allen Cty. Prosecutor, Court of Appeals Building, Suite 302, 204 N. Main St., Lima, Ohio

45801.

Christopher R. McDowell

16

APPENDIX 1

It

IN THE COURT OF APPEALS OF OHIOTHIRD APPELLATE DISTRICT

ALLEN COUNTY

STATE OF OHIO9

PLAINTIFF-APPELLEE,

V.

MARK A. WANGLER,

CASE NO. 1-11-18

JUDGMENTENTRY

DEFENDANT-APPELLANT.

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of

the trial court is affirmed with costs assessed to Appellant for which judgment is

hereby rendered. The cause is hereby remanded to the trial court for execution of

the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this

Court's judgment entry and opinion to the trial court as the mandate prescribed by

App.R. 27; and serve a copy of this Court's judgment entry and opinion on each

party to the proceedings and note the date of service in the docket. See App.R. 30.

DATED: October 22 ® 2012

,^ 1.

f ^JUDGES

IN THE COURT OF APPEALS OF OHIOTHIRD APPELLATE DISTRICT r -

ALLEN COUNTY ' 4

^=-r

STATE OF OHIO, CD^`^ y £^

PLAINTIFF-APPELLEE,

V.

MARK A. WANGLER,

CASE NO. 1-11-18

OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas CourtTrial Court No. CR2009 0298

v uQa..^"n^°::t A ffir mn rl

Date of Decision: October 22, 2012

APPEARANCES:

Christopher R. McDowell, Sarah Sparks Herron and

Roxanne L. Ingles for Appellant

^-.._..^^.

Juergen A. Waldick and Jana E. Emerick for Appellee

Case No. 1-11-18

ROGERS, J.

{¶1} Defendant-Appellant, Mark Wangler ("Mark"), appeals from the

judgment of the Court of. Common Pleas of Allen County convicting him of one

count of aggravated murder and sentencing him to life imprisonment with parole

eligibility after twenty-five years. On appeal, Mark contends that the trial court

erred in denying his motions to suppress; that the trial court erred in refusing to

exclude the testing performed by the Wisconsin State Laboratory of Hygiene ("the

Lab") and the testimony of the Lab's employees; that the trial court erred in

excluding testimony of his expert witness, Frederick Teeters; and, that he was

denied a fair trial as a result of discovery violations that denied him access to

material evidence. Given the alleged errors, Mark contends that his conviction

should be vacated and that he be granted a new trial. Based on the following, we

affinn the judgment of the trial court.

{¶2} On the night of September 4, 2006, Mark and his wife, Kathy Wangler

("Kathy"), were asleep in their residence. That night, Kathy slept in a bedroom

located on the second floor, while Mark slept in the master bedroom located on the

first floor. At 5:18 a.m., the Allen County Sheriffs Office ("the Sheriffs Office")

received a 911 call from Mark exclaiming that the carbon monoxide ("CO") alarm

in his residence was sounding and that Kathy, a diagnosed epileptic, was having a

seizure. During the 911 call, but prior to the arrival of emergency services, Mark

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Case No. 1-11-18

informed the dispatcher that he had opened the windows in Kathy's bedroom and

began performing CPR on Kathy.

{¶31 At approximately 5:22 a.m., Chief Joseph Kitchen ("Chief Kitchen"),

Bath Township's Fire Chief, was the first of the emergency services personnel to

arrive at the residence. Upon entering the residence, Chief Kitchen heard the CO

alarm sounding. Mark escorted Chief Kitchen to Kathy's bedroom where he

found Kathy lying with her torso on an air mattress and her legs on -the floor.

Upon checking Kathy's vital signs Chief Kitchen discovered that Kathy was not

breathing and had no pulse. As a result, Chief Kitchen proceeded to slide Kathy

off the air mattress and began CPR.' At approximately 5:23 a.m., the Bath

Township EMS arrived on scene and began advanced life support procedures.

During this time, Kathy was placed on a cardiac monitor, which revealed that

Kathy was in asystole, which is colloquially -known as flatline, i.e., there was no

electrical activity in her heart. Because of her condition and failure to respond to

advanced life support procedures, Kathy was transported to Lima Memorial

Hospital ("the hospital"), where she arrived at 5:45 a.m. Shortly after Kathy was

transported to the hospital, a sheriffs deputy transported Mark to the hospital for

treatment.

1 At trial, Kitchen, as well as other medical professionals, testified that in order to properly administer CPRthe victim must be lying on a solid surface.

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Case No. 1-11-18

{¶4} Upon arrival at the hospital, Dr. Rina Stein, the attending emergency

physician, examined Kathy noting that her jaw was stiff and difficult to open, her

neck was stiff, her skin was pale and cool to the touch, her internal body

temperature was 95.5 degrees Fahrenheit, and her body was exhibiting signs of

posterior lividity. Despite continued efforts to resuscitate Kathy, she was

officially declared dead at 5:54 a.m. Based on the condition of Kathy's body, it

was Dr. Stein's opinion that Kathy had died before she arrived at the hospital.

{¶5} Mark arrived at the hospital shortly after Kathy, and was treated for

CO poisoning. At the hospital, Mark was found to have a carboxyhemoglobin

level of 13%.2 Mark was released from the hospital at 10:54 a.m.

{¶6} After Kathy was transported to the hospital, at approximately 5:40

a.m., Cledus Hawk II ("Hawk"), a firefighter with the Bath Township Fire

Department, entered the residence to measure CO levels. Initially, Hawk

proceeded to the basement where his measuring instrument, a four gas analyzer

("analyzer"), measured a CO level of 50 parts per million ("ppm"). As a result of

the reading, Hawk exited the residence and equipped himself with a self-contained

breathing apparatus ("SCBA"). Several minutes after Hawk exited the residence,

he reentered the residence and again proceeded to the basement. This time the

2 Carboxyhemoglobin is defined as "a very stable combination of hemoglobin and carbon monoxideformed in the blood when carbon monoxide is inhaled with resulting loss of ability of the blood to combinewith oxygen." Merriam-Webster (2012), http://www.merriam-webster.com/medical/carboxyhemoglobin

(accessed October 15, 2012).

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Case No. 1-11-18

analyzer measured a CO level of 35-30 ppm. At 6:00 a.m., Hawk closed all of the

windows in the residence and waited approximately an hour before he reentered

the residence. At 7:10 a.m., Hawk reentered the residence and proceeded to the

basement where the analyzer measured a CO level of 20-15 ppm. After taking a

reading in the basement, Hawk proceeded to Kathy's bedroom. There, the

analyzer measured a CO level of 25-20 ppm. Shortly thereafter, Hawk returned to

the basement and held the analyzer near the natural. gas-fired water heater and

furnace for several minutes and found that the CO levels near those appliances

were the same as those measured throughout the basement.

{¶7} After the residence was deemed safe for entry without a SCBA,

Sergeant Philip Sherrick ("Sergeant Sherrick"), a deputy with the Sheriff's Office,

conducted a walkthrough of the residence. Upon inspecting Kathy's bedroom,

Sergeant Sherrick observed soot-like markings on the wall directly above a

register located in the floor. Sergeant Sherrick then continued to the master

bedroom. Upon entering the master bedroom, Sergeant Sherrick noticed a

pungent sulfur-like order emanating from the en-suite master bathroom. Upon

entering the master bathroom, Sergeant Sherrick observed that the carpet around

the toilet was wet, a floor fan was running, and the bathroom window was open.

Thereafter, Sergeant Sherrick continued to the basement. The basement had two

staircases, one leading into the residence and one leading into the garage. After

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Case No. 1-11-18

examining the basement, Sergeant Sherrick continued to the garage where he

observed two vehicles parked inside the garage, as well as a lawn mower, snow

blower, and gas powered generator. Outside the garage, Sergeant Sherrick

observed an RV and another vehicle parked in the driveway.

{¶8} After conducting a walkthrough of the residence, Sergeant Sherrick

drove to the hospital. Sergeant Sherrick arrived at the hospital at approximately

8:15 a.m. and spoke with Mark. During their conversation, Mark explained that

he awoke to the CO alarm sounding, that he went upstairs to check on Kathy and

found her having what he perceived to be a seizure, that he went back downstairs

to call 911, and that he conducted CPR until emergency services personnel

arrived. Mark also explained that the furnace and water heater had been replaced

two years prior, and that the wind would periodically blowout the water heater's

pilot light.

{¶9} On the morning of Kathy's death, Jan Zuber ("Zuber"), a customer

service representative for Old Dominion Gas Company, arrived at the residence to

determine the source of the CO. Zuber sealed the residence (i.e., closed the

windows and doors) and ran the furnace and water heater one at a time. As each

appliance was running, Zuber walked throughout the residence measuring the CO

levels. During the testing, the highest measurement of CO detected in the

residence was 3 ppm. Zuber also inspected the furnace and water heater and

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Case No. 1-11-18

determined that each appliance was properly operating. Despite this

determination, Zuber placed a red tag on the water heater because of a code

violation concerning the height of the water heater's flue outside the residence.

{¶10} On September 5, 2006, Dr. Diana Barnett ("Dr. Barnett"), a forensic

pathologist and deputy coroner with the Lucas County Coroner's Office,

performed Kathy's autopsy. As part of the autopsy, Dr. Bamett sent samples of

Kathy's blood to Dr. Robert Fomey, chief toxicologist with the Lucas County

Coroner's Office. Kathy's blood had a carboxyhemoglobin level of 69.6%. Based

on Kathy's carboxyhemoglobin level, Dr. Barnett concluded that Kathy died of

acute CO poisoning: Upon review of Kathy's emergency room records, it was Dr.

Barnett's opinion that Kathy died one to two hours before arriving at the hospital.

{¶11} On the morning of September 6, 2006, Steve Erlenbach

(66Erlenbach"). an enizineer with SEA Limited, a forensic investigation firm, was

contacted by the Sheriff's Office and asked to investigate Mark and Kathy's CO

poisoning. Erlenbach arrived at the residence at approximately noon the same day

and began his investigation. First, Erlenbach conducted a walkthrough of the

residence. During his walkthrough, Erlenbach observed and photographed soot

stains on the wall above the register in Kathy's bedroom, as well as soot-stained

carpet underneath the same register. Erlenbach noted that the residence contained

three natural gas-fired appliances, to wit: a furnace; a water heater; and gas

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Case No. 1-11-18

fireplace. All three natural gas-fired appliances were located in the basement.

During his investigation, Erlenbach operated the furnace, water heater, and gas

fireplace one at a time under different conditions (i.e., basement door open and

closed, bathroom exhaust fans on and off, windows open and closed). After

testing each appliance, Erlenbach determined that each appliance was properly

operating and detected no abnormal or unsafe levels of CO emanating from the

appliances. Though Erlenbach determined that the water heater was properly

operating, he did find that the flue from the water heater extending outside the

residence was in violation of the National Fuel Gas Code, because it did not

extend high enough in the air.

{¶12} Following his investigation, in October 2006, Erlenbach sent the

Sheriff's Office a report detailing his investigation, analysis, and conclusions.

Erlenbach's report contained the following conclusions:

SEA testing of the gas appliances within the Wangler home showedno source of fugitive carbon monoxide (outside of a small amount ofcarbon monoxide emitted from a vent-free fireplace).

The levels of carbon monoxide emitted from the vent-free fireplacefall well within acceptable exposure limits set by OSHA andASHRAE (American Society of Heating, Refrigeration, and Air-Conditioning Engineers) and were not causal to the incident.

The vent for the water heater was not of sufficient height accordingto the National Fuel Gas Code (NFPA 54).

If Mr. Wangler's story about the water heater pilot light is true, thenthe water heater has a venting problem that occurs under certain

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Case No. 1-11-18

conditions. This problem could be allowing products of combustion(including CO) to backdraft through the water-heater vent and intothe home. According to Mr. Wangler, there was hot water use thenight preceding the incident.

Additional testing would be required to test venting performanceunder different outdoor conditions.

If it is true that Mrs. Wangler had a carboxyheinoglobin (COHb)level of 69%, she would had to have been exposed to CO levels inexcess of 1200 ppm. The fact that Mr. Wangler was in a room withthe windows open and a fan running could explain why his COHblevels were so much lower than his wife's.

Additional testing would be required to determine the cause of thestaining near the supply-air registers.

SEA cannot eliminate the possibility of a car running in the attachedgarage as a potential source of carbon monoxide in the home.October 2, 2006 SEA Report, p. 2.

{¶13} In April 2007, then Sergeant Clyde Breitigan ("Sergeant Breitigan"),

a deputy with the Sheriffs Office, filed an affidavit ("April affidavit") in support

of a warrant to search the Wangler residence. In the April affidavit, Sergeant

Breitigan made clear that the Sheriff's Office sought the requested items in

relation to the offense of aggravated murder.3 The warrant ("April search

warrant") was granted and executed on April 24, 2007. During the execution of

the April search warrant, law enforcement, including Sergeant Breitigan, seized

various items, including but not limited to, a personal computer, a laptop, various

computer accessories, various data storage devices, a portable GPS unit,

3 The requested items will be discussed in further detail below.

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Case No. 1-11-18

iniscellaneous papers, three handwritten journals, cash, credit cards, jewelry, and

books.

{¶14} In October 2007, Sergeant Fred Depalma ("Sergeant Depalma"), a

deputy with the Sheriff's Office, contacted the Lab and spoke with the Lab's

program director, Dr. Jamie Schauer ("Dr. Sehauer"). Sergeant Depalma asked

Dr. Schauer whether the Lab was capable of testing for and detecting particles

emitted from an internal combustion engine ("engine"), to which Dr. Schauer

responded in the affirmative:

{¶15} In November 2007, Sergeant Breitigan, based on the items seized

under the April search warrant and the testing capabilities of the Lab, filed an

affidavit ("November affidavit") in support of a second warrant to search the

Wangler residence. The warrant ("November search warrant") was granted and

executed on November 15, 2007. During the execution of the November search

warrant, law enforcement, including Sergeant Breitigan, seized various items,

including but not limited to, ductwork, the register from Kathy's bedroom, and a

swatch of carpet surrounding the same register. These items were sealed and

stored in the Sheriff's Office's evidence room, where they remained until they

were transported to the Lab.

{¶16} On January 29, 2008, Sergeant Depalma transported the items seized

under the November search warrant, as well as several control samples, to the Lab.

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Case No. 1-11-18

On September 11, 2009, the Lab sent the Sheriff's Office a report ("the Report")

authored by Dr. Schauer detailing the Lab's analysis and his conclusions. In the

Report, Dr. Schauer concluded that molecular tracers found in the soot collected

from the duct work were commonly found in soot emitted from an engine.4

{¶17} On September 17, 2009, the Allen County Grand Jury indicted Mark

on one count of aggravated murder in violation of R.C. 2903.01(A), an

unclassified felony. In response, Mark entered a plea of not guilty.

{¶18} In November 2009, Mark filed motions to suppress property seized

under the April and Noveinber search warrants. In December 2009, the matter

proceeded to a suppression hearing. During the hearing, the trial court requested

that the parties file supplemental briefs in support of their respective positions,

and, based on the parties agreement, that the briefs be filed on the same day. On

January 12, 2010, the Darties filed their supDlemental briefs. Later that same

month, the trial court filed its order overruling Mark's motions to suppress.

{1119} In August 2010, Mark filed a motion in limine requesting the trial

court to exclude the testing performed by the Lab and the testimony of the Lab's

employees. Mark argued, in relevant part, that the testing performed by the Lab,

as well as expert testimony concerning the same, was not admissible because the

methodology employed by the Lab was neither scientifically reliable nor relevant

4 We note that in addition to the Report issued by the Lab in September 2009, Dr. Schauer authored arevised version of the Report in February 2011, in which he explained the Lab's analysis and hisconclusions in further detail. The State admitted the revised Report at trial.

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Case No. 1-11-18

to the facts at issue in the case. In September 2010, the matter proceeded to a

Daubert hearing. Later that month, the trial court filed its order overruling Mark's

motion in limine.

}¶20} On February 28, 2011, the matter proceeded to a jury trial. On

March 16, 2011, the jury returned a guilty verdict on the sole count of aggravated

murder. Thereafter, the trial court sentenced Mark to life imprisonment with

parole eligibility after twenty-five years.

{¶21} It is from this judgment Mark appeals, presenting the following

assignments of error for our review.

Assignment of ENroN No. I

THE TRIAL COURT ERRED BY REFUSING TO SUPPRESSTHE EVIDENCE OBTAINED PURSUANT TOUNCONSTITUTIONAL SEARCH WARRANTS.

Assignment ofError No. II

THE TRIAL COURT ERRED BY REFUSING TO EXCLUDETHE STATE'S EXPERT TESTIMONY.

Assignment of ErroN No. III

THE TRIAL COURT ERRED BY EXCLUDING THETESTIMONY OF DR. WANGLER'S EXPERT WITNESS,FREDERICK A. TEETERS.

Assignment of Error No. IV

DR. WANGLER WAS DENIED A FAIR TRIAL AS ARESULT OF NUMEROUS DISCOVERY VIOLATIONSTHAT DENIED HIM MATERIAL EVIDENCE.

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Case No. 1-11-18

Assignment of Error No. I

{¶22} In his first assignment of error, Mark contends that the trial court

erred by refusing to suppress the evidence obtained under the April and November

search warrants. Specifically, Mark contends that the April affidavit lacked

probable cause to seize handwritten materials from his residence; that the April

and November affidavits contained stale information; -that the April search warrant

did not describe with particularity the items to be seized; that law enforcement

exceeded the scope of the April and November search warrants; that the trial court

erred in applying the good.faith exception to the items seized urider the April and

November search warrants; and, that the November affidavit contained knowingly

false information.

{1123} Before we address the merits of the foregoing contentions, we must

first address the issue of waiver as raised by the State.

1. Waiver

{1[24} In its response to Mark's first assignment of error, the State argues

that three of Mark's foregoing contentions were not raised below, to wit: the April

and November affidavits contained stale information; the April search warrant did

not describe with particularity the items to be seized; and, law enforcement

exceeded the scope of the November search warrant. As a result, the State argues

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Case No. 1-11-18

that Mark has waived appellate review of these contentions. Based on the

following, we agree.

}¶25} Crim.R. 47, which governs motions in criminal proceedings,

provides, in relevant part:

An application to the court for an order shall be by motion. Amotion, other than one made during trial or hearing, shall be inwriting unless the court permits it to be made orally. It shall state

with particularity the grounds upon which it is made and shall setforth the relief or order sought. It shall be supported by amemorandum containing citations of authority, and may also besupported by an affidavit. (Emphasis added.).

In City of Xenia v. Wallace, 37 Ohio St.3d 216 (1988), the court explained that

"[Crim.R. 47], *** when applied to a motion to suppress evidence obtained by

search and seizure, requires that the prosecution be given notice of the specific

legal and factual grounds upon which the validity of the search and seizure is

challenged." Id. at 219. "The prosecutor must know the grounds of the challenge

in order to prepare his case, and the court must know the grounds of the challenge

in order to rule on evidentiary issues at the hearing and properly dispose of the

merits." Id. at 218. "Failure on the part of the defendant to adequately raise the

basis of his challenge constitutes waiver of that issue on appeal:" Id.; see also

State v. Shindler, 70 Ohio St.3d 54, 58 (1994) ("[b]y requiring the defendant to

state with particularity the legal and factual issues to be resolved, the prosecutor

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Case No. 1-11-18

and court are placed on notice of those issues to be heard and decided by the court

and, by omission, those issues which are otherwise being waived").

{¶26} Review of the record, specifically Mark's motions to suppress,

suppression hearing transcript, and Mark's supplemental brief in support of his

motions to suppress, reveal that Mark never argued before the trial court that the

April and November affidavits contained stale information or that the April search

warrant did not describe with particularity the items to be seized.5 Accordingly,

Mark's contentions concerning staleness and particularity are waived on appeal.

{¶27} In addition, review of the record reveals that Mark has waived his

contention that the November affidavit contained knowingly false information.

While Mark did argue below that the November affidavit contained knowingly

false information, the basis of that contention was materially different from the

basis of his assertion on anpeal. Below, Mark argued that Sergeant Breitigan's

discussion of Kathy's condition upon her arrival at the hospital (i.e. Kathy's core

temperature, stiffness of her jaw) and conclusion that her condition indicated she

died sometime before Mark called 911 was false and made in reckless disregard

for the truth. (Docket No. 28, p. 3-5; Docket No. 43, p. 16-22). On appeal,

however, Mark contends that Sergeant Breitigan's statements that Mark tracked

Kathy's movements via GPS and conducted internet searches relating to CO were

5 Notably, Mark, in his reply brief, does not deny that he failed to raise these contentions before the trial

court.

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Case No. 1-11-18

false and made in reckless disregard for the truth. Clearly, the argument raised

below concerning the inclusion of knowingly false information in the November

affidavit was materially different from Mark's contention on appeal. Accordingly,

Mark's newly raised contention' concerning the inclusion of knowingly false

information in the November affidavit is waived on appeal.

{¶28} Unlike Mark's contentions concerning staleness, particularity, and

the inclusion of knowingly false information, Mark did argue before the trial court

that law enforcement exceeded the scope of the November search warrant.

(Docket No. 43, p. 10-11). In fact, the trial court considered and overruled that

argument in its decision on Mark's motions to suppress. (Docket No. 45, p. 6).

Despite having raised that argument below and the trial court's ruling thereon, we

find that Mark has waived the issue on appeal. Review of the record reveals that

Mark first raised the contention in a supplemental brief filed after the suppression

hearing. (Docket No. 43, p. 10-11). We find the timing of Mark's contention runs

afoul of Crim.R. 47.

{¶29} As previously mentioned, Crim.R. 47, as it pertains to motions to

suppress, is designed to place the state on notice of the specific legal and factual

grounds upon which the validity Qf the search and seizure is challenged. Xenia at

219. This notice affords the state an opportunity to rebut the grounds upon which

the defendant is challenging the search and seizure. Here, due to the timing of

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Case No. 1-11-18

Mark's contention and the fact that the supplemental briefs were filed on the same

day, the State was not given an opportunity to present arguments and evidence to

rebut the same: Indeed, an officer's testimony concerning the seizure of an item

allegedly not covered under the search warrant would be relevant in determining

whether the item at issue was covered under the search warrant or was otherwise

properly seized pursuant to a warrant exception, such as the plain view doctrine.

Furthermore, the fact that the trial court ruled on Mark's contention, albeit in the

State's favor, does not preclude the application of the waiver doctrine. The State

did not have the opportunity to present rebuttal arguments or evidence, which

consequently places the State at a severe disadvantage if this court were to

consider the merits of Mark's contention. Accordingly, Mark's contention that

law enforcement exceeded the scope of the November search warrant is waived on

aalrtPa 1r.$, _.._.

}¶30} Having determined that Mark has waived his contentions concerning

staleness, particularity, inclusion of knowingly false information, and the scope of

the search under the November search warrant, we turn our attention to Mark's

remaining contentions, to wit: the April affidavit lacked probable cause to seize

handwritten materials; law enforcement exceeded the scope of the April search

warrant; and, the trial court erred in applying the good faith exception.

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Case No. 1-11-18

Considering the nature of Mark's remaining contentions, we will first address his

contention that law enforcement exceeded the scope of the April search warrant.

II. Scope of the April Search Warrant

{¶31} Mark contends that law enforcement exceeded the scope of the April

search warrant when it seized iniscellaneous papers, handwritten journals, cash,

jewelry, credit cards, a briefcase, a safe, a disposable camera, and headphones.

Based on the following, we agree.

{¶32} "Appellate review of a motion to suppress presents a mixed question

of law and fact." State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

The trial court serves as the trier of fact and is the primary judge of the credibility

of the witnesses and the weight to be given to the evidence presented. State v.

Johnson, 137 Ohio App.3d 847, 850 (12th Dist. 2000). Therefore, when an

annPllate court reviews a trial court's ruliniz on a motion to suppress, it must,^r.r..__.-_- ------ -- -- - -- ---- - " _ _

accept the trial court's findings of fact when supported by competent, credible

evidence. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ^ 100, citing

State v. Fanning, 1 Ohio St.3d 19, 20 (1982). The appellate court must then

review the application of the law to the facts de novo. Roberts, citing Burnside at

T 8.

{¶33} The Fourth Amendment of the United States Constitution, as applied

to the states through the Fourteenth Amendment, commands in relevant part, that

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Case No. 1-11-18

no warrants shall issue. except those particularly describing the things to be

seized.6 Consequently, the permissible scope of a search is governed by the terms

set forth in the search warrant. See Walter v. United States, 447 U.S. 649, 656,

100 S.Ct. 2395 (1980). "If the scope of the search exceeds that permitted by the

terms of a validly issued warrant or the character of the relevant exception from

the warrant requirement, the subsequent seizure is unconstitutional without more."

Horton v. Califonnia, 496 U.S. 128, 140, 110 S.Ct. 2301 (1990). "While this does

not mean that every police action while inside a home must be explicitly

authorized by the text of the warrant, the Fourth Amendment does require that

police actions in execution of a warrant be related to the objectives of the

authorized intrusion." (Citation omitted.) Wilson v. Layne, 526 U.S. 603, 611,

119 S.Ct. 1692 (1999).

F^i^dl C;ncP thP nerm;csihle scnne of a sea.rch is governed bv the terms set

forth in the search warrant, we begin with the terms of the April search warrant.

Affidavit having been made before me by Sergeant C.W. Breitiganthat he has reason to believe that on the premises located at 860Yorkshire Drive Lima, Allen County, Ohio * * *

***

[T]here is now being concealed certain property, namely

(1) Computers, computer components, computer peripherals, wordprocessing equipment, modems, monitors, printers, keyboards,

6 Article I, Section 14 of the Ohio Constitution contains a nearly identical provision. State v. Jones, 124

Ohio St.3d 1203, 2009-Ohio-6188, ¶ 29.

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Case No. 1-11-18

cables, scanning equipment, information storage devices, includingbut not limited to hard disc drives, remote disc drives, computercompact disks, 3'/2 inch computer discs, zip disks, removable diskcartridges, smart cards, computer tapes; (2) Any and all electronicaccounting records, in the form of computer generated logs ofcriminal activity, including but not limited to diaries, journals,calendars or computer system audit records; electronic mailmessages, opened and unopened, to or from co-conspirators,associates or victims; computer account information, including butnot limited to computer host names and internet addresses, accountnames, passwords, access telephone numbers, password files andother information about computer systems, users, accounts andrelated topics and documents that show ownership and control; (3)any and all electronic communications including but not limited toopened and unopened e-mail messages, instant messages (IM),letters and other electronic records, documents, correspondence,notes, memoranda, address lists, telephone directories, screen namelists, buddy lists, advertisemeints, calendars, diaries, journals, telexes,faxes, audio and visual tape recordings, any global positioningsystems, any computer(s), hardware, software and items used todownload information off a GPS tracking device(s)

[W]hich are ***[E]vidence of the crime of Aggravated Murder,O.R.C. 2903.01(A)

{¶35} A plain reading of the April search warrant's terms reveals that law

enforcement could search and seize three different categories of items. The

parties' do not dispute that the first category authorized the search and seizure of

computers and devices associated with the operation of computers (i.e., printers,

keyboards, information storage devices, etc.).7 The parties, however, disagree as

to the scope of items that could be searched for and seized pursuant to the second

7 The first category is delineated in the April search warrant by the number one in parentheses.

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Case No. 1-11-18

and third categories.8 Accordingly, we will consider the second and third

categories.

{¶36} A plain reading of the second and third categories in the April search

warrant authorizes the search and seizure of electronic records, communications,

and documents. The second category reads, in relevant part, "[a]ny and all

electronic accounting records, in the form of computer generated logs of criminal

activity, including but not limited to diaries, journals, calendars or computer

system audit records." (Emphasis added.). The third category reads, "any and all

electronic communications including but not limited to opened and unopened e-

mail messages, instant messages (IM), letters and other electronic records,

documents, correspondence, notes, memoranda, address lists, telephone

directories, screen name lists, buddy lists, advertisements, calendars, diaries,

inr,rnnlc tPlexec faxec *f l" (F.m-nhacic nclded_1_ An ohiectivelv reasonable^..,...___w_^, °___-__.,, _...__^ ^•^ ^-----r--^___ ^^^_^.i- ---- --^---- --^

reading of these categories requires each category to be read in its entirety. See

United States v. Young, 263 Fed.Appx. 710, 714 (10th Cir.2008) (reading warrant

in its entirety to determine scope of the warrant). When the second and third

categories are read in their entirety, it is apparent that the terms "electronic" and

"computer generated" modify the terms that follow, which happen to include

"records," "documents," "diaries," and "journals." Accordingly, the second and

8 The second and third categories are delineated in the April search warrant by the numbers two and threein parentheses, respectively.

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Case No. 1-11-18

third categories authorized the search and seizure of electronic records,

communications, and documents.

{¶37} Our reading of the second and third categories is strengthened by

reference to the April affidavit prepared by Sergeant Breitigan. In particular, the

following language from the April affidavit supports the fact that law enforcement

primarily sought computer(s), computer related devices, and information stored in

computers and computer related devices (e.g., electronic records, communications,

and documents).

Based on the evidence summarized earlier in this affidavit, there isreason to. believe that Dr. Mark Wangler used coinputer(s) andcomputer diskettes to store, maintain, retrieve and use electronic datain the form of electronic records, documents and materials and thathe used the following data types

A. computer software used for criminal purposes;

B. account information (site names, internet addresses, accountnames, screen names, passwords, telephone numbers and similaritems) of entities who were contacted by individual(s) at 860Yorkshire Rd., Bath Township, Allen County, Ohio on the intern.etfor the purpose of furthering criminal activity; and

C. system accounting and audit logs which record the operationsoccurring on that computer (including criminal activities)

D. GPS tracking systems[.] April Affidavit, p. 12.

Notwithstanding the foregoing language, the State maintains that the April

affidavit did not limit the form of the information being sought to electronic

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Case No. 1-11-18

records, communications, and documents, citing the following language, which

appears in the April affidavit.

These tenns records, documents and materials as used above includeall of the foregoing items of evidence in whatever form and bywhatever means such records, documents or materials, their drafts,or their modifications may have been created or stored[.] AprilAffidavit, p. 12.

While it is arguable that law enforcement sought information in electronic and

non-electronic forms, we note that this language was not included in the April

search warrant. We believe that the absence of this language in the April search

warrant reveals that the issuing magistrate intentionally limited the form of

information to be searched for and seized to electronic information.

{¶38} Accordingly, we find that the April search warrant was limited to

searching and seizing computers, computer related devices, and information stored

in cmmnuterc and cemnuter related devices (e.^"., electronic records,___ _^---r------- --- ---r- ---

communications, and documents). Bearing this in mind, we turn our attention to

those items which Mark contends were seized outside the scope of the April

search warrant.

{¶39} Upon executing the April search warrant law enforcement seized

numerous computer related items, as well as miscellaneous papers, j ournals, cash,

jewelry, credit cards, a briefcase, a safe, a disposable camera, and headphones. At

trial, the State offered several of the miscellaneous papers and journals seized

-23-

Case No. 1-11-18

during the April search warrant, which were ultimately adinitted into evidence.

Those miscellaneous papers and journals consisted of the following: a,single piece

of paper, purportedly created by Mark, which contains a crude computer-generated

diagram of the death scene and typewritten notes concerning the possibility that

Kathy was trying to murder Mark (State's Exhibit 43); a printed email dated April

19, 2005 from Dave Warren to Mark regarding the effect of divorce for someone

who is or wants to become a deacon in the church, and several printed resources

concerning same issue (State's Exhibit 44); a bound journal book entitled "It's Not

About Me Journal" which contains Mark's handwritten responses to prompts

throughout the journal (State's Exhibit 45); a large blue binder with the phrase

"Cosmetic Training Kit" on the outside and numerous pages of Mark's

handwritten autobiographical notes and impressions of his relationship with Kathy

^r,eirlP (State's F,xhibit 461: and. a bound iournal book entitled "Revolve My___..___

Journal On Life, Faith & Other Stuff' which contains approximately two hundred

pages filled with Mark's handwritten journal entries dated between December 31,

2005 and December 31, 2006 (State's Exhibit 47).9 Because the aforementioned

items were offered by the State at trial, and subsequently admitted into evidence,

9 For ease of discussion, we will refer to the paper with a diagram of the death scene and the email betweenMark and Dave Warren by the exhibit numbers assigned to each at trial (i.e., State's Exhibit 43 and 44,respectively). As for the remaining items, we will refer to those items as "the Journals."

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Case No. 1-11-18

we will consider whether these items were seized outside the scope of the April

search warrant.' o

{^40} We find that the seizure of State's Exhibit 43 and 44 was within the

scope of the April search warrant. While the scope of the warrant is limited to

electronic records, communications, and documents, we find that an objective

reading of these categories also encompasses papers and documents that were

created on and printed from a computer; as such 'items are simply hardcopy forms

of an electronic record, communication, or document. Based on our prior

descriptions of State's Exhibits 43 and 44, it is clear that each was created on and

printed from a computer. Consequently, each of these items, though in a hardcopy

form, is derived from an electronic document and electronic communication,

respectively, and therefore falls within the scope of the April search warrant.

f41d11 A.-, for the _Tnurna.ls_ we find that thev do not fall within the scope of^ ^^ . _, _ _-- ---- ---- - - -------- ^ ^ -

the April search warrant. As previously mentioned, the Journals are handwritten

and contain nothing that would lead law enforcement to believe that they were

created on and printed from a computer like State's Exhibits 43 and 44.

Consequently, the Journals do not constitute electronic records, communications,

10 Mark also contends that law enforcement exceeded the scope of the April search warrant when theyseized cash, jewelry, credit cards, a briefcase, a safe, a disposable camera, and headphones. While seizureof the aforementioned items undoubtedly exceeded the scope of the April search warrant, these items wereneither offered by the State in order to prove Mark's guilt, nor is there evidence that the items resulted inthe discovery of evidence offered by the State to prove Mark's guilt. Consequently, Mark was notprejudiced by the improper seizure of the aforementioned items.

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Case No. 1-11-18

or documents, and therefore were seized outside the scope of the April search

warrant.

{¶42} Given the foregoing, we find that the search and seizure of the

Journals was outside the scope of the April search warrant.

{¶43} The State argues that even if the Journals were outside the scope of

the April search warrant, law enforcement properly seized the Journals because

they were closely related to the crime being investigated. In support, the State

relies on a prior decision of this court, State v. Fields, 29 Ohio App.2d 154 (3d

Dist. 1971).

{¶44} In Fields, defendant and an accomplice snatched a woman's purse

from her person. A passerby witnessed the robbery and attempted to apprehend

defendant and his accomplice. In doing so, the defendant shot and killed the

passerby with a .38 caliber revolver. A search warrant was later issued for the

seizure of a .38 caliber revolver and a purse. Law enforcement . executed the

warrant on the accomplice's residence, but was unable to locate a .38 caliber

revolver or a purse. Law enforcement did, however, locate and seize a spent .38

caliber shell. Before trial, defendant moved to suppress the shell arguing that it

was not specifically described in the warrant, but the trial court overruled

defendant's motion and the defendant was later convicted of the passerby's

murder. Defendant appealed the trial court's decision denying his motion to

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Case No. 1-11-18

suppress. On appeal, this court affirmed, finding that items not explicitly listed in

a search warrant, like the shell, may be lawfully seized during the execution of a

search warrant if: (1) based upon evidence known to law enforcement the articles

seized were closely related to the crime being investigated; or, (2) law

enforcement had reasonable cause to believe the items seized were

instrumentalities of the crime. Fields at 160-61.

{¶45} Having considered Fields, we note that this court's holding in Fields

as it pertains to the seizure of items outside the scope of the search warrant is

merely an early variation of the plain view doctrine. Several years after this

court's opinion in Fields, this court implicitly recognized that its holding in Fields

had been superseded by the Ohio Supreme Court's decision in State v. Williams,

55 Ohio St.2d 82 (1978). State v. Bika, 3d Dist. No. 9-78-06 (Oct. 19, 1978).

Arrnrrlinalv izTa uAll a-n-nlv thP nlain view rlnctrine aq cet forth in Williams.

{¶46} In order for evidence to be seized under the plain view doctrine the

prosecution must demonstrate that ( 1) the initial intrusion which afforded the

authorities the plain view was lawful; (2) the discovery of the evidence was

inadvertent; and (3) the incriminating nature of the evidence was immediately

apparent to the seizing authorities. Williams at paragraph one of the syllabus. In

State v. Halczyszak, 25 Ohio St.3d 301 (1986), a divided court modified the

second and third elements of the plain view doctrine set forth in Williams. The

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Case No. 1-11-18

"inadvertent discovery" requirement can be satisfied when law enforcement "lack

antecedent probable cause, i.e., an advance particularized knowledge of, or intent

to seize, those objects ultimately seized." Id. at paragraph two of the syllabus.

The "immediately apparent" requirement can be satisfied when law enforcement

has "probable cause to associate an object with criminal activity." Id. at paragraph

three of the syllabus. Additionally, law enforcement may rely on their specialized

knowledge, training and experience when determining whether an object is

associated with criminal activity. Id. at paragraph four of the syllabus.

{¶47} The State contends that the Journals were properly seized under the

plain view doctrine because the Journals contained infonnation establishing

motive, i.e., the state of Mark and Kathy's marriage. While the Journals may have

been relevant in establishing motive, the allegedly incriminating nature of the

Journals, wa:c not immediatelv annarent to law enforcement cluring the execution of- - -------- ^ --- --- - ------- °------^ --rr --- ---- -- -^ .. ------ - -------- -------o ---- ---- - ------- - -

the April search warrant, as evidenced by the following colloquy during the

suppression hearing:

[Defense Counsel:] So, you're saying that you knowingly tookfinancial paperwork from the house knowing that it wasn't relevant?

[Sergeant Breitigan:] I took everything together as one as they weretogether so that they could be reviewed, sorted, separated.

[Defense Counsel:] So, you just grabbed every piece of paper, tookit back to your office so you could look at it later, is that correct?

[Sergeant Breitigan:] Not every piece of paper, no.

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Case No. 1-11-18

[Defense Counsel:] All right. But you took all the pieces of paperthat were set forth in items 31, 32, 33, 34, 25 [of the inventorysheet], corre.ct?11

[Sergeant Breitigan:] Did take those, yes.

[Defense Counsel:] All right. But you didn't look through them todetermine whether they were within the scope of the search warrantat the time you took them, did you?

[Sergeant Breitigan:] No, they're included with other paperworkthat was included in the scope of this warrant. Suppression HearingTr., p. 53-54.

Clearly, law enforcement was unaware of the content at the time the Journals were

seized. The allegedly incriminating nature of the Journals only became apparent

sometime after the search had been completed, and consequently was not

immediately apparent to law enforcement at the time they discovered the Journals.

Therefore, the Journals were not properly seized under the plain view doctrine.

{¶48} Given the foregoing, we find that the Journals were improperly

seized under the April search warrant, and therefore erroneously admitted during

trial. In so finding, Mark's remaining contentions concerning a lack of probable

cause to seize handwritten materials (i.e., the Journals) and the application of the

good faith exception are moot and we decline to address them. See App.R.

12(A)(1)(c).

11 Items 31, 32, and 33 in the inventory sheet correspond to the Journals.

-29-

Case No. 1-11-18

{¶49} Though we have deterlnined that the Journals should have been

suppressed, Mark contends that all of the items seized under the April search

warrant should have been suppressed because law enforcement flagrantly

disregarded its terms. In support, Mark relies on a case from the Tenth Circuit

Court of Appeals, United States v. Medlin, 842 F.2d 1194 (10th Cir.1988),

wherein the court held that blanket suppression was warranted where law

enforcement flagrantly disregarded the terms of the search warrant by seizing 667

items which were not identified in the warrant. The holding in Medlin, however,

is not binding upon this court, and even if it were, we do not find law enforcement

actions in this instance to be so flagrant as to warrant blanket suppression.

{¶50} Finally, having determined that the Journals were improperly seized,

and consequently erroneously admitted at trial, we must determine whether the

error was harmless or nreiudicia1.12 "Error in the admission of evidence is---__

harmless if there is no reasonable possibility that the evidence may have

contributed to the accused's conviction. In order to hold the error harmless, the

court must be able to declare a belief that the error was harmless beyond a

reasonable doubt." State v. Bayless, 48 Ohio St.2d 73 (1978), paragraph seven of

the syllabus, vacated in part on other grounds, 438 U.S. 911, 98 S.Ct. 3135

(1978). "[C]ases where imposition of harmless error is appropriate must involve

12 Notably, Mark advances no arguments that admission of the Journals was prejudicial. Despite theabsence of such arguments, we are nevertheless compelled to determine whether admission of the Journals

at trial resulted in harmless or prejudicial error.

-30-

Case No. 1-11-18.

either overwhelming evidence of guilt or some other indicia that the error did not

contribute to the conviction." State v. Rahman, 23 Ohio St.3d 146, 151 (1986),

quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5. When considering

whether error is harmless, the reviewing court's judgment should be based on its

own reading of the record and on what it determines is the probable impact the

evidence had on an average jury. State v. Kidder, 32 Ohio St.3d 279, 284 (1987),

citing Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726 (1969). For the

following reasons, we conclude that the admission of the Journals was harmless

beyond a reasonable doubt.

}¶51} Throughout its case-in-chief the State drew the jury's attention to the

ruinous state of Mark and Kathy's marriage, arguing that it was a motivating

factor for Kathy's murder. At the beginning of its case-in-chief, the State called

0^1 Aro1 wit1naoc+ae Xx iln ^PQf1T7P^ tn cnme (i?tail ahnnt the diffic»ltiec Mark and0WVlIlU.l VV11.11V00V0 VY11v

Kathy were experiencing in their marriage prior to Kathy's death. At the end of

the State's case-in-chief, the State revisited Mark and Kathy's marital difficulties.

This time, however, the State had Sergeant Breitigan read aloud select entries from

the Journals. Though the entries read aloud provided a more detailed insight into

Mark and Kathy's marital difficulties, we find that those entries and the Journals

as a whole were cumulative in nature, and therefore harmless, since the jury had

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Case No. 1-11-18

already heard testimony from several witnesses concerning the ruinous state of the

marriage.

{¶52} In addition to the Journals being cumulative, the Journals contained

many entries that were favorable to Mark. While the State selected entries that

captured the ruinous state of Mark and Kathy's marriage, many other entries

revealed that Mark remained hopeful about his marriage and made great efforts to

improve his marriage. The existence of these favorable entries was brought to

light during Sergeant Breitigan's cross-examination.

[Defense Counsel:] And throughout [the Journals] Mark prays for agood relationship with his wife, correct?

[Sergeant Breitigan:] Yes, he does.

[Defense Counsel:] And he prays for strength from the Lord to helphim work on the relationship?

fCaraaant Rreitivan•^ YeC_^^,...fj.JU.^... Y^..^ _b...._ .J - -"-

[Defense Counsel:] And he prays that his wife will also sort of seethe way and work on the relationship too, doesn't he?

[Sergeant Breitigan:] Yes. Trial Tr., 2064.

In addition to the entries alluded to in the foregoing colloquy, there were

numerous entries from the days, weeks, and months following Kathy's death in

which Mark repeatedly discusses his grief and how much he misses Kathy.

Because the Journals contained many entries favorable to Mark and the jury was

made aware of such entries during Sergeant Breitigan's cross-examination, we do

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Case No. 1-1.1-18

not believe that there was a reasonable possibility that the Joumals contributed to

Mark's conviction.

{^53} Given the foregoing, we conclude that the admission of the Journals

was harrnless beyond a reasonable doubt.

{¶54} Accordingly, we overrule Mark's first assignment of error.

Assignment of ErroN No. II

{¶55} In his second assignment of error, Mark contends that the trial court

erred when it determined that the tests performed by the Lab and the testimony of

its employees were admissible. Specifically, Mark contends that the tests

performed by the Lab were unreliable, and therefore inadmissible under Evid.R.

702(C). In the alternative, Mark contends that even if the tests performed by the

Lab and the testimony of its employees are admissible, such evidence should have

1;een : xctuded p,rsmant tn E«ird,R, 40^(A)'c halaneing test,

following, we disagree.

Rased on the

A. Admissibility of the Lab's Testing and Expert Testimony

{¶56} The admissibility of expert testimony is a matter cominitted to the

sound discretion of the trial court, and the trial court's ruling will not be

overtumed absent an abuse of that discretion. Valentine v. Conrad, 110 Ohio

St.3d 42, 2006-Ohio-3561, ¶ 9. A trial courtwill be found to have abused its

discretion when its decision is contrary to law, unreasonable, not supported by the

-33-

Case No. 1-11-18

evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-

278, ¶ 16-18, citing Black's Law Dictionary 11 (8 Ed.Rev.2004). When applying

the abuse of discretion standard, a reviewing court may not simply substitute its

judgment for that of the trial court. State v. Nagle, 1 lth Dist. No. 99-L-089, (June

16, 2000), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶57} Generally, "courts should favor the admissibility of expert testimony

whenever it is relevant and the criteria of Evid.R. 702 are met." State v. Nemeth,

82 Ohio St.3d 202, 207 (1998). Evid.R. 702, which governs the admissibility of

expert testimony, provides:

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond theknowledge or experience possessed by lay persons or dispels amisconception common among lay persons;

lRl ThP witnPCC i.c nnalifierl ac an exnert bv snecialized knowledae.

skill, experience, training, or education regarding the subject matterof the testimony;

(C) The witness' testimony is based on reliable scientific, technical,or other specialized information. To the extent that the testimonyreports the result of a procedure, test, or experiment, the testimony isreliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment isbased is objectively verifiable or is validly derived from widelyaccepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliablyimplements the theory;

-34-

Case No. 1-11-18

(3) The particular procedure, test, or experiment was conducted ina way that will yield an accurate result.

{¶58} Here, there is no question or dispute that the subject about which Dr.

Schauer testified is beyond the knowledge or experience of lay persons and that

Dr. Schauer's credentials and experience qualify him to testify as an expert:

Evid.R. 702(A), (B). Accordingly, the sole issue is whether the testing performed

by the Lab is reliable under Evid.R. 702(C).

{¶59} In determining whether the opinion of an expert is reliable under

Evid.R. 702(C), a trial court, acting as a gatekeeper, examines whether the

expert's conclusion is based on scientifically valid principles and methods.

Valentine at ¶ 16, citing Miller v. Bike Athletic Co., 80 Ohio St.3d 607 (1998).

"In evaluating the reliability of scientific evidence, several factors are to be

considered: (1) whether the theory or technique has been tested, (2) whether it has

been subjected to peer review, (3) whether there is a known or potential rate of

error, and (4) whether the methodology has gained general acceptance." Miller at

611, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94,

113 S.Ct. 2786 (1993). Although these factors may aid in determining reliability,

none of the factors are dispositive as the inquiry is flexible. Id., citing Daubert at

594. Ultimately, the focus is "solely on principles and methodology, not on the

conclusions that they generate." Id., quoting Daubert at 595.

-35-

Case No. 1-11-18

{¶60} In the case sub judice, the trial court held a Daubert hearing to

determine whether the testing performed by the Lab and Dr. Schauer's testimony

concerning the same was reliable. In determining the reliability of the testing

performed by the Lab, the trial court considered the factors set forth in Daubert.

See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153, 119 S.Ct. 1167 (1999)

("[W]hether Daubert's specific factors are, or are not, reasonable measures of

reliability in a particular case is a matter that the law grants the trial judge broad

latitude to determine."). As to the first factor, whether the theory or technique had

been tested, the trial court found that "the testing was done subject to standard

protocol and has been objectively tested[,]" and that "[t]he type of testing has been

done all over the world and accepted." (Docket No. 204, p. 3). As to the second

factor, whether the theory or technique has been subjected to peer review, the trial

cnnrt fnnncl that "nther research g rouns have used the same and similar testing ando --. -

the same has been subject to much peer review." (Id.). As to the third factor,

whether there is a known or potential rate of error, the trial court found that the

error rate did "not affect the reliability of the testing and the conclusions." (Id.).

As to the fourth factor, whether the methodology has gained general acceptance,

the trial court found that "[t]he methodology has been generally accepted in the

scientific community, as well as the [United States] E.P.A.[,] National

-36-

Case No. 1-11-18

Organizations[,] and world wide (sic) organizations."13 (Id. at p. 4). Based on its

consideration of the factors set forth in Daubert, the trial court concluded that

"[t]he State * * * presented sufficient evidence to support the reliability of its

expert's theory/testing under Evid.R. 702." (Id.).

{1161} Despite the trial court's determination concerning the reliability of

the testing performed by the Lab, Mark contends that the testing and testimony of

the Lab's employees do not meet any of the factors set forth in Daubert.

{¶62} First, Mark contends that the methodology underlying the testing

performed by the Lab ("the methodology") has never been tested. Contrary to

Mark's contention, Dr. Schauer's testimony establishes that the methodology has

been tested. Generally, the methodology involves chemical analysis of a soot

sample to determine the soot's origin, i.e., whether the soot originated from things

^anL^ ^c^ e^n^J r^nnlrinrr fnnr (`1(TAt'P'f'^'P CTYIll1IP hY anPn41nP Ar.rnrrlinu tn11 R^7 vU.111111s vvvvu, vvviuii^ ivvu, vaswava.a.v .^aiivv, v^ w^^ ..^^b^s^... ^^.......-'"`---a •.•-3u

Dr. Schauer, when an item or substance is burned the resulting soot contains

specific chemical compounds known as molecular tracers, which, when viewed

together, form a chemical fingerprint that is used to trace the soot to its origin. On

direct examination, Dr. Schauer testified that the methodology is born from

decades of research performed by him and other scientists throughout the world.

Dr. Schauer testified that the methodology has been tested and replicated by other

13 "EPA" as used throughout this opinion refers to the United States Environmental Protection Agency.

-37-

Case No. 1-11-18

laboratories around the world. Later, during cross-examination, Dr. Schauer was

asked whether he created the methodology used in this case. In response, Dr.

Schauer denied that he created the methodology explaining that it "is built upon

knowledge that exists in the community" and that it "[has] been approved by a

quality assurance officer at the U.S. EPA." Daubert Tr., p. 79-80. Given the

foregoing, we find that ' the trial court did not err when it found that the

methodology was tested.

{1[63} Although the record contains ample evidence that the methodology

has been tested, Mark, nevertheless, maintains that Dr. Schauer's lack of

experience in using wipe samples and testing samples taken from duct work is

evidence that the methodology has never been tested. While Dr. Schauer testified

that he had never tested wipe samples taken from duct work, we are not persuaded

+1nn+ 1nia lonv ^f PvV14]ri4]ll^P 1»a anxr haarinrr nn rlatarininincr [xrI1PtI'1?r tf1PL11SA.L 1110 1G.V11 Vl l`t/Vl"VV 1140 C411,' VV(.Lllll5 Vll uvl,vlllalaalals ♦111v411vi 1aav

methodology has been tested. First, Mark does not explain how Dr. Schauer's

experience (or lack thereof) relates to determining whether the methodology has

been tested. Second, Mark cites no authority in support of his position. Simply

because Dr. Schauer had not personally analyzed soot collected from duct work

using a wipe sample does not mean the methodology employed by the Lab in the

case sub judice has not been tested.

-38-

Case No. 1-11-18

{¶64} Moreover, while Mark contends that use of wipe samples has not

been tested, review of the record reveals otherwise. A chemist employed with the

Lab, Mark Mieritz ("Mieritz"), collected all of the wipe samples.14 When

questioned whether he developed the wipe method Mieritz responded "I applied it.

I didn't really develop it. It's used all the time in PCB analysis under EPA

protocol. That uses a gauze and measures a specific area."15 Trial Tr., p. 1841.

While the Lab used quartz fiber wipes as opposed to gauze, there is no evidence

that this seemingly minor difference materially altered the methodology's

reliability. In addition to the EPA's use of wipe samples, one of the Mark's

experts, Frederick Teeters, testified that he had used wipe samples to determine

the origin of chemical compounds found in pollutants. Trial Tr., p. 2640.

{¶65} Next, Mark contends that the testing performed by the Lab has not

^..is^^v. ^.^^^o^^- ^^ v^o01' YLIx)iPAiT Tn cilY^Ylllr^' Marlr Yl[1tP.C t^lat nt CeveralnointsUGGll JLLL/JGI^L LV t1vC1 1vvl%, vv. r-

throughout the course of the Daubert hearing Dr. Schauer testified that he was not

aware of publications concerning the following: whether molecular tracers can be

used to establish the presence of CO; whether testing the outside of the duct work

was a valid control to compare against the presence of molecular tracers inside of

14 There is no evidence that Dr. Schauer collected any of the wipe samples.ts Polychlorinated Biphenyl, which is colloquially known as PCB, is defmed as "any of several compoundsthat are produced by replacing hydrogen atoms in biphenyl with chlorine, have various industrialapplications, and are toxic environmental pollutants which tend to accumulate in animal tissues." Merriam-Webster (2012), http://www.merriam-webster.com/dictionary/polychlorinated+biphenyl?show=0&t=13463

37023 (accessed October 15, 2012).

-39-

Case No. 1-11-18

the duct work; and, whether a wipe could be used to determine the presence of

molecular tracers a year or more before the wipe was taken. Though Dr. Schauer

was unable to cite any publications concerning the foregoing, we are not

persuaded that Dr. Schauer's inability to cite to such publications establishes that

the methodology has not been subject to peer review.

{¶66} First, the existence of publications concerning whether molecular

tracers can show the presence of CO is immaterial in determining the reliability of

the methodology. Dr. Schauer never testified that the testing was capable of

showing the presence of CO. Instead, the presence of CO was established though

the Lab's determination that the soot found throughout the duct work originated

from an engine, the exhaust of which contains CO.

{¶67} Similarly, the existence of publications concerning whether a wipe

nnv,lrl ha ,oarl +n rlalarr,,;na tba -nracanrP nf mnlarn,lar trarPrc a vear nr mnre before0./OIUl\A V</ 1.LJV^.L LV ^.LVLV1111111V Lllv t/1vvv11vv va aa.avivv...+w+ u+wvv+.+ .... J...+- ^.- ------- -------

the wipe was taken is immaterial in determining the reliability of the methodology.

Although Dr. Schauer testified that he was 'aware of individuals who had used

wipe samples to determine the presence of molecular tracers a year or more before

the samples were taken, he never testified that the methodology employed by the

Lab could determine such information. In fact, Dr. Schauer testified to the

contrary. See Daubert Tr., p. 42. Given Dr. Schauer's testimony, we fail to see

the significance in Dr. Schauer's inability to cite publications establishing that

-40-

Case No. 1-11-18

wipe samples could be used to detennine the presence of molecular tracers a year

or more before the sample was taken.

{¶68} As for publications concerning the use of the outside of the duct

work as a control to compare against the presence of molecular tracers inside of

the duct work, Mark contends that Dr. Schauer knew of no such publications.

Mark's contention misconstrues Dr. Schauer's testimony. When questioned about

publications concerning the use of the outside of the duct work as a control to

compare against the presence of molecular tracers inside of the duct work Dr.

Schauer responded, "I'm sure I could find one for you, but I can't recall one off

the top of my head right now." Daubert Tr., p. 92. Considering Dr. Schauer's

response, it appears that he was aware of publications covering the requested

subject matter, but merely could not remember the title or author(s) of those

i_1.__^'CIl.._ tzn.:i- r ^,^f r„^1^ r.,,l-,lijatinne mav h^.av

^9 a.^ ......bPPn^uviivc^iviiv .--UU11C%1Vlls. VV1111G 1JrVUUlJL1V11 0l UG7%.11^1^1VU Vl ouvii i.i..^)

beneficial to determining the reliability of the methodology, we do not believe that

Dr. Schauer's inability to specifically recall the publications rendered the

methodology unreliable. Furthermore, even if Dr. Schauer testified that he was

not aware of any publications concerning the requested subject matter, the

existence of publications (or lack thereof) is not dispositive when assessing the

reliability of a scientific method. Daubert, 509 U.S. at 594, 113 S.Ct. 2786.

-41-

11

Case No. 1-11-18

{¶69} Notwithstanding Dr. Schauer's inability to present peer-reviewed

literature on every detail of the methodology, the record contains ample evidence

that the testing conducted by the Lab has been subject to peer review. While

Mark's contention focuses on Dr. Schauer's inability to cite publications

supporting the methodology, we note that publication is not a sine qua non of

admissibility, but one element of peer review. Daubert at 593. During the

D,aubert hearing, Dr. Schauer testified that he has authored and coauthored

numerous publications concerning the use of molecular tracers to trace soot to its

origin. Indeed, review of Dr. Schauer's curriculum vitae, which was admitted

during the Daubert hearing, corroborates Dr. Schauer's testimony. In addition,

Dr. Schauer testified that the methodology has been adopted by other laboratories,

as well as being used to verify other methods designed to detect and use molecular

trararc tn traoa cnnt anrl n1'hPr 71Ar1'1[`.il1a1'P. tYlAttP.t' t(1 1tC nt'lgln_ Tiven the foreaoina.

we find that the trial court did not err when it found that the methodology has been

subject to peer review.

{¶70} Next, Mark contends that Dr. Schauer could not identify a known

error rate. Indeed, review of the record reveals that Dr. Schauer was unable to

testify to a known error rate. However, the lack of a known error rate is not fatal

to the methodology's reliability. Daubert instructs that the court may also

consider the potential rate of error. Daubert at 594. During the Daubert hearing,

-42-

Case No. 1-11-18

Dr. Schauer testified that when testing for the existence of molecular tracers there

is an uncertainty (which appears to be a synonym for error rate) associated with

accurately identifying each individual molecular tracer. Although Dr. Schauer

was unable to recall the exact uncertainty for each molecular marker he did testify

that the uncertainties for the molecular tracers detected in the soot analyzed by the

Lab were in the range of 10 to 20 percent. Given this testimony, we cannot

conclude that the uncertainties testified to by Dr. Schauer render the methodology

unreliable. Consequently, we find that the trial court did not err when it found that

the uncertainties did "not affect the reliability of the testing and the conclusions."

(Docket No. 204, p. 3).

{¶71} Last, Mark contends that the methodology has not gained general

acceptance. Contrary to Mark's contention, the record reveals that the

^.1,.^a^,^ i.,,, o,a o,^0,-^ 1 onnar^tanrP Prinr tn onntactinu the T,ah_ law11G611VUV1V8y 110.^ gaiil%.u 6V11V1G1 aa ^ ^Y^cuavv. i .- - -s .- ---p -___ --_7 __. ..

enforcement contacted several laboratories inquiring about their ability to test for

and detect particles emitted from an engine. Mark argues that the difficulty in

finding a laboratory to perfonn the desired testing indicates that the testing, and

consequently the methodology, has not gained general acceptance. We disagree.

{¶72} First, difficulty experienced by law enforcement in locating a

laboratory capable of performing the requested testing is not indicative of whether

a particular methodology is generally accepted. There are other more reasonable

-43-

Case No. 1-11-18

explanations as to why law enforcement had difficulty locating a laboratory

capable of performing the requested testing, reasons which have no bearing on

whether the methodology is generally accepted. For instance, law enforcement

was unaware whether the testing they requested could be done, let alone whether a

particular laboratory could perform the requested testing. Consequently, it is not

at all surprising that law enforcement experienced difficulty in finding a laboratory

that could perform the requested testing.

{¶73} Notwithstanding the difficulty of finding a laboratory capable of

performing the requested testing, the record reveals that the methodology has been

generally accepted. Dr. Schauer testified that many research groups use the

methodology, as well as government agencies such as the United States EPA.

Given the foregoing, we find that the trial court did not err when it found that the

methodology haC been aPnerallv neented_bJ b"` ^ ^ ^ r -- ---

{¶74} Having found no error with regard to the trial court's findings under

the Daubert factors, we find that the trial court did not abuse its discretion when it

concluded that the methodology was reliable.

{¶75} Though we have found no error with regard to the trial court's

determination that the methodology is reliable, Mark contends the analytical gap

between the data derived from the testing and Dr. Schauer's conclusions is too

great, and therefore should have been excluded.

-44-

Case No. 1-11-18

{¶76} In addition to being reliable, Evid.R. 702(C) requires that the data

generated by the methodology at issue support the expert's opinion. Valentine,

110 Ohio St.3d 42, 2006-Ohio-3561, at ¶ 18. "A court may conclude that there is

simply too great an analytical gap between the data and the opinion proffered."

Id., quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512 (1997).

While scientists may certainly draw inferences from a body of work, a trial court

must ensure that any extrapolation accords with scientific principles and methods.

Valentine at ¶ 18.

{1177} Based on the testing performed by the Lab, it was Dr. Schauer's

opinion that exhaust from an engine had been directly introduced into the duct

work. The trial court concluded that Dr. Schauer's "opinions are not speculative

and his opinions are based upon sufficient facts and data and the product of

_YPliahle nrincinles and methods." (Docket No. 204, p. 4). We agree..-__.,.^-- r------r--- ----- -- . - -

{¶78} Dr. Schauer's opinion concerning the origin of the soot does not

present too great an analytical leap from the underlying data. Dr. Schauer testified

that analysis of the wipe samples taken from the items submitted for analysis,

particularly the duct work, revealed the existence of hopanes, steranes, and

polycyclic aromatic hydrocarbons ("PAHs"). Dr. Schauer testified that alone

these molecular tracers provide little or no guidance concerni.ng the origin of the

soot in which they were found. Rather, Dr. Schauer testified that the molecular

-45-

Case No. 1-11-18

tracers detected in a soot sample must be viewed together to determine the

chemical fingerprint. Once the chemical fingerprint has been identified it can be

matched to known chemical fingerprints which have been discovered through

decades of research. Here, the Lab was able to identify the chemical fingerprint of

the soot found in the duct work from the combination of molecular tracers. Dr.

Schauer testified that the chemical fingerprint was similar to the known chemical

fingerprint associated with soot found in exhaust emitted from an engine. Given

the foregoing, we find that the Dr. Schauer's opinion as to the origin of the soot is

reasonably drawn from the underlying data.

{¶79} Additionally, Dr. Schauer's opinion concerning the exhaust having

been directly introduced into the duct work does not present too great an analytical

leap from the underlying data. 'In reaching this opinion, Dr. Schauer appears to

have relied on several nieces of data. First, Dr. Schauer, having measured the---- - - --- - -- - -- -

concentration of soot found on the inside surface the duct work, considered how

long it would have taken that soot to accumulate using depositional velocities.

Based on the testimony adduced during the Daubert hearing and trial, it appears

that depositional velocities, which vary depending on the environment and

location, are the rate at which particles suspended in the air deposit on a surface.

Upon consideration of the appropriate depositional velocities, Dr. Schauer

determined that the soot samples collected from the inside surface were deposited

-46-

Case No. 1-11-18

over a short period of time. In addition to this data, Dr. Schauer also considered

photographs depicting a V-shaped soot mark above the register in Kathy's

bedroom, soot stained carpet which surrounded the vent in Kathy's bedroom, and

soot marks around openings where two sections of duct work were joined.

Although Mark challenges Dr. Schauer's ability to view photographs. and

determine whether something was directly introduced into the duct work, the

record reveals that Dr.. Schauer's experience qualifies him to reach such a

conclusion. In particular, Dr. Schauer testified that he has conducted several field

studies wherein he has become familiar with soot deposition within a building, as

well as the means by which soot enters and circulates throughout a building (i.e.,

via the ventilation system or via the intrusion of ambient air from outside a

building). Based on the soot patterns depicted in the photographs, Dr. Schauer

3 e«.:. . 7 41. .4 l.: rl^v^nor^tro4i^n ^f cnnt travPlPr, tl'1rn71ah tllP ventilationUGLG1111111GU 1.11Q.L a luEll cV11V1^11L1CA.L1V11 vi ^vv^ ^=wvv=.^.+ ^_.=^.-.b== ^__-^ •^--_^----•--_^__

system. Given the foregoing, we find that Dr. Schauer's opinion as to the how the

soot was introduced into the duct work is reasonably drawn from the underlying

data.

{¶80} Accordingly, we find that the trial court did not err when it found

that Dr. Schauer's opinions were reasonably drawn from the underlying data.

-47-

Case No. 1-11-18

}¶81} In light of the foregoing, we find that the trial court did not abuse its

discretion by allowing the jury to consider the testing performed by the Lab and

the testimony of the Lab's employees.

B. Evid.R. 403(A)

{¶82} Mark contends that even if the Lab's testing and the testimony of the

Lab's employees is relevant and reliable, the evidence should have been excluded

pursuant to Evid.R. 403(A). Based on the following, we disagree.

{¶83} An appellate court reviews the trial court's decision on the admission

of evidence for an abuse of discretion. State v. Heft, 3d Dist. No. 8-09-08, 2009-

Ohio-5908, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). As previously

mentioned, a trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grosslv unsound. See Boles. 2d Dist. No. 23037, 2010-Ohio-278, ¶ 16-18, citing

Black's at 11. When applying the abuse of discretion standard, a reviewing court

may not simply substitute its judgment for that of the trial court. Nagle, 1 lth Dist.

No. 99-L-089, (June 16, 2000), citing Blakemore, 5 Ohio St.3d at 219 (1983).

{¶84} Evid.R. 402 provides that relevant evidence is generally admissible

except as otherwise provided by the rules of evidence and other laws or statutes.

Evid.R. 401 defines relevant evidence as "evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

-48-

Case No. 1-11-18

more probable or less probable than it would be without the evidence." Evid.R.

403(A) provides that relevant evidence is not admissible "if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the

issues, or of misleading the jury."

{1185} Mark contends that the unfair prejudice resulting from the admission

of the Lab's testing and testimony of the Lab's employees stems from the strong

risk that the jury considered the Lab's results as conclusive evidence that exhaust

from an engine was introduced into the duct work. In particular, Mark contends

that finding hopanes, steranes, and PAHs in the duct work is irrelevant and

unreliable in proving causation because those molecular tracers are found

everywhere in the environment and therefore their existence in the duct work in no

way establishes that a crime was committed. As previously discussed, the Lab's

A .. : 1; ., .4 +l,o ^ -4^n ^ri^rin .^ oe nnt v^rar^iratPl^ nn AQ1Y1S7lP. 111[IlP,C11lA1 tldCEr_l&G6G11111112LL1V11 Vl 611G 3vvb a viiEiu vvuo uv.. N..J - » ^---p=- __ ,

but a collection of specific molecular tracers which form a chemical fingerprint,

which, in turn, is used to determine the soot's origin. Accordingly, while it may

be common to find individual hopanes, steranes, and PAHs throughout the

environment, it is less common to find them together in the same soot sample

forming a chemical fingerprint which research has shown to be associated with

exhaust from an engine. Furthermore, the Lab's results revealed that there was an

abnormally high amount of hopanes, steranes, and PAHs found in the soot samples

-49-

Case No. 1-11-18

taken from the duct work, as well as visual evidence that a high concentration of

soot traveled through the duct work. This evidence tends to support the

conclusion that the exhaust was directly introduced into the duct work. Given the

foregoing, we do not find that the probative value of the Lab's testing and the

testimony of the Lab's employees is outweighed by the "danger of unfair

prejudice, of confusion of the issues, or of misleading the jury." Evid.R. 403(A).

{T86{ Accordingly, we overrule Mark's second assignment of error.

Assignment of Error No. III

{¶87} In his third assignment of error, Mark contends that the trial court

erred when it prohibited his expert, Frederick Teeters ("Teeters"), from testifying

about candle soot in the Wangler residence. Mark contends that Teeters was

qualified to testify about whether the soot found in the Wangler residence

.,4 o.4 f,-.,,^, ronlllae Qrrnrrlina tn Mark Teeters wnuld have testifiedVll6 111QLL+U 11V111 Vl•Fillllls VU.+1^.L1VV. t ivvv+K+++t, uv +.+w^^^, +.^^.•^-^ •• ----_^ ____. _ ___ -. .

that the chemical fingerprint associated with soot emitted from burning candles is

similar to the chemical fingerprint associated with soot emitted from an engine,

and that the soot found in the Wangler residence, while seemingly from an engine,

was, in fact, from burning candles. Based on the following, we disagree.

{¶88} Under Evid.R. 702(B), a witness may qualify as an expert by reason

of his or her knowledge, experience, skill, training, or education. "Neither special

education nor certification is necessary to confer expert status upon a witness. The

-50-

Case No. 1-11-18

individual offered as an expert need not have complete knowledge of the field in

question, as long as the knowledge she possesses will aid the trier-of-fact in

performing its fact-finding function. Pursuant to Evid.R. 104(A), the trial court

determines whether an individual qualifies as an expert, and that determination

will be overturned only for an abuse of discretion." (Citations omitted.) State v.

Baston, 85 Ohio St.3d 418, 423 (1999)

{¶89} At trial, prior to Teeters' testimony, the State moved the trial court to

exclude his testimony arguing that he did not qualify as an expert in the subject

matter at issue. In response to the State's motion, the trial court held a Daubert

hearing outside the presence of the jury.

{¶90} During the Daubert hearing, Teeters testified that he has over forty

years of experience in solving fluid flow problems and porous media. Teeters

4mc.t;fiAA +1,a4 m„rl't nf his AxYIAriAnne involved analvzinLy chemicals in fluids and1.6+a1.ilil^u l.llu.l. llluvia vi iiiv -r...i--.... --- • " - . - -- --- ---J V

using molecular tracers, which included hopanes and steranes, to determine the

chemicals' origin. Prior to trial, Teeters apparently analyzed the data generated

from the testing performed by the Lab in an effort to independently determine the

origin of the soot tested by the Lab.'6 Teeters testified that the analysis he

16 Upon review of the record, it appears that Teeters authored two reports. See Trial Tr., p. 2617, 2625.One report apparently dealt with candle soot in residential buildings and whether the soot found in the

Wangler residence originated from burning candles. Id. at p. 2617. The other report apparently dealt with

a comparison of soot found in the exhaust emitted from a RV parked in the Wangler driveway on the night

of Kathy's death with soot found in a blue flex hose. Id. The reports, however, were neither admitted into

evidence nor proffered by Mark. Consequently, our knowledge of the reports' content is limited to the

testimony adduced during the Daubert hearing.

-51-

Case No. 1-11-18

conducted in the case sub judice did not significantly differ from work he has done

in the past. According to the testimony, it appears that Teeters devoted a sizeable

portion of one of his reports to discussing candle soot in residential buildings and

whether the soot found in the Wangler residence originated from burning candles.

Teeters, however, testified that he does not consider himself to be an expert in

candle soot. Teeters also testified that he has never conducted experiments or

worked with candle soot. Rather, Teeters testified that his knowledge about

candle soot was derived from articles he found on the internet and at libraries.

Based on the foregoing testimony, the trial court found that Teeters "has no

qualifications to be *** an expert relative to candle soot in the house[,]" but

found that Teeters was qualified to testify about "tracing biomarkers and

emissions." Trial Tr., p. 2636.

rQn, l Tho„rs1, ,:ra mav have come to a clifferent conclusion, we find that the11I71 J 1 11V l.l6ll Vv v

trial court did not abuse its discretion when it precluded Teeters from testifying

about candle soot. Indeed, Teeters' testimony established that he had extensive

experience in tracing chemicals, particularly those found in fluids, to their origin.

However, Teeters lacked experience working with candle soot, a fact he conceded

during the Daubert hearing. Lack of personal knowledge concerning candle soot,

while seemingly insignificant considering Teeters' experience with tracing

chemicals to their origin, is nevertheless a reasonable ground to exclude testimony

-52-

Case No. 1-11-18

concerning candle soot. As previously discussed, soot contains a chemical

fingerprint (i.e., a collection of specific molecular tracers) which is used to

determine the soot's origin. Since Teeters had no experience working with candle

soot it is reasonable for the trial court to infer that Teeters would not be aware of

the chemical fingerprint or fingerprints associated with candle soot. Moreover,

there is no indication that the internet and library resources that Teeters relied on

contained information concerning the chemical fingerprint or fingerprints

associated with candle soot, as such information was not adduced during the

Daubert hearing nor did Mark proffer the same.l7 Given the foregoing, we find

that the trial court did not abuse its discretion.

{¶92} Moreover, in light of other testimony presented during the defense's

case-in-chief, we find that the trial court's ruling concerning the scope of Teeters'

4PCt;mnnv rl;rl nnt rirP;,,[iir.e Mark_ Prior to Teeters' testimonv, the defense called

Robert Wabeke ("Wabeke"). Wabeke testified that most candles are made of

paraffin wax, which is a derivative of crude oil. As a result, Wabeke explained

that one would expect to find similar molecular tracers in soot from a burning

candle and soot from an engine. To demonstrate the similarity, Wabeke

performed a test to determine the chemical composition of eight different types of

17 In his reply brief, Mark states that Teeters compared the chemical signature from candles removed fromthe Wangler residence to the chemical fingerprint which Dr. Schauer interpreted as being associated withsoot found in exhaust emitted from an engine. Mark, however, fails to support this statement with a

citation to the record. App.R. 16(A)(7).

-53-

Case No. 1-11-18

candles.18 Focusing on hopanes, steranes, and PAHs, Wabeke testified that the

chemical fingerprints from soot samples collected from each candle were not

homogeneous. For example, the soot from one candle contained hopanes and

steranes but no PAHs, while the soot from another candle contained PAHs but no

hopanes or steranes. Wabeke testified that if the aforementioned candles were

burned together the analysis of the resulting soot may reveal the presence of

hopanes, steranes, and PAHs. Though Wabeke did not go so far as to conclude

that the foregoing scenario may result in a false-positive for exhaust from an

engine, the jury, via Dr. Schauer's testimony, was already aware that those same

molecular tracers make up the chemical fingerprint associated with soot from an

engine, and therefore could have concluded, without further testimony, that the

soot analyzed by the Lab could have originated from burning candles instead of an

^: . 41..,. f-,Y,.;,-..r o f;,,rl tl,ot A/Tartr ^xTac nnt YIrF?711(J1(:p.(J hv tlleeligllie. 111vG11 l.i1G 1V1G6V1116, wV 1111u LuuL .r- ----

exclusion of Teeters' testimony concerning candle soot.

{¶93} Accordingly, we overrule Mark's third assignment of error.

Assignment of Error No. IV

{¶94} In his fourth assignment of error, Mark contends that the trial court

erred when it refused to order the State to provide all information from Elemental

Carbon - Organic Carbon analysis ("ECOC, analysis") conducted by the Lab and

18 Upon review of the record, the origin of the candles Wabeke tested is not clear. See Trial Tr., p. 2248-

2252, 2324-2326.

-54-

Case No. 1-11-18

data considered by Dr. Schauer to calculate depositional velocity ("depositional

velocity data" or "data"), thus denying him a fair trial. Specifically, Mark

contends that the State was required to provide all infonnation associated with the

ECOC analysis and depositional velocity data pursuant to Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194 (1963) and Crim.R. 16. Based on the following, we

disagree.

1. ECOC Results

}¶95} During the Daubert hearing, it was discovered that the Lab

conducted ECOC analysis on dry wipe samples taken from items submitted to it

for testing. Mark, having not been aware of the ECOC analysis performed by the

Lab, moved the trial court to order the State to provide all information associated

with the ECOC analysis arguing that the information may be exculpatory. The

i ., a ^a Ar,,,.v1 n9.1AC1.t colAll uGiliGu lvta111 J tivt

ivia.

{¶96} On appeal, Mark contends that the trial court erred when it refused to

order the State to provide all information associated with the ECOC analysis.

First, Mark contends that the information associated with the ECOC analysis is

material to his guilt, and should have been provided pursuant Brady v. Maryland.

Alternatively, Mark contends that the State was required to provide the

information associated with the ECOC analysis pursuant to Crim.R. 16(B)(3), (4).

We will address each contention in turn.

-55-

Case No. 1-11-18

A. Brady Issue

{¶97} It is well settled that the prosecution's suppression of evidence

favorable to an accused violates due process where the evidence is material either

to guilt or punishment, irrespective of the prosecution's good or bad faith. Brady

v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194 (1963). Similarly, Crim.R. 16(B)(5)

requires the prosecution to disclose "any evidence favorable to the defendant and

material to guilt or punishment." See State v. Keene, 81 Ohio St.3d 646, 650

(1998) (the terms "favorable" and "material" in Crim.R. 16 have the same

meaning as they do in Brady). Brady's holding, as well as Crim.R. 16(B)(5),

places upon the prosecution a duty to disclose evidence "that is both favorable to

the accused and `material either to guilt or to punishment."' United States v.

Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375 (1985), quoting Brady at 87. The

rarr^aPn»finn^c^ AlI'fcl n-F laicf^^nc77NP 77Y1l^PN KN/1/117 PY'fPY1tiQ t!1 T`.1x7nrqhlP '.lYlil matPrial^J1VJ\+\+LAL1V11 J lLl.lL.Y Vl ll1JV1VJl.ilv uliuvi a.+r wwy v^>a.vuu.U 1- au.. vawviv -i-

evidence that is known to the prosecution and to others acting on the prosecution's

behalf in the case. Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555 (1995).

{¶98} The key issue in a case where favorable evidence is alleged to have

been withheld by the prosecution is whether the evidence is material. State v.

Johnston, 39 Ohio St.3d 48, 60 (1988). "The mere possibility that an item of

undisclosed information might have helped the defense, or might have affected the

outcome of the trial, does not establish `materiality' in the constitutional sense."

-56-

7 ^

Case No. 1-11-18

State v. Jackson, 57 Ohio St.3d 29, 33 ( 1991), quoting United States v. Agurs, 427

U.S. 97, 109-10, 96 S.Ct. 2392 (1976). Rather, "[e]vidence is considered material

`if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. "' State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 23, quoting Bagley, 473 U.S. at

682, 105 S.Ct. 3375. The touchstone of materiality is a "reasonable probability"

of a different result. Kyles at 434. "The question is not whether the defendant

would more likely than not have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence." Id. Accordingly, the rule in Brady is violated

when the favorable evidence that was not disclosed by the prosecution "could

reasonably be taken to put the whole case in such a different light as to undermine

r• , ., ,• , ee I I e!ll_.- C7^ 7a ee 'lnn^7 l11..;.. nQ2^l (iconllUellce in tne verQlcL. JLate v. 13Y'own, 11J V1110 3I.JU JJ, L.VV /-v111v-°ro 7 /, H

40, quoting Kyles at 43 5.

{¶99} The defense bears the burden of proving a Brady violation rising to

the level of denial of due process. State v. Iacona, 93 Ohio St.3d 83, 92 (2001),

citing Jackson, 57 Ohio St.3d at 33.

{¶100} Mark contends that the ECOC analysis is material to his guilt

because the testing performed by the Lab was central to the State's case. Though

the testing performed by the Lab was central to the State's case, review of the

-57-

Case No. 1-11-18

record reveals that had the results of the ECOC analysis been disclosed the results

could not reasonably be taken to put the whole case in such a different light as to

undennine confidence in the verdict.

{¶101} First, the results of the ECOC analysis were invalid. During the

Daubert hearing and again at trial, Dr. Schauer testified that the ECOC analysis

performed on dry wipe samples collected from items submitted to it for testing

yielded invalid results. While Mark contends that the veracity of Dr. Schauer's

foregoing testimony is questionable, we find that none of the testimony or

evidence Mark cites to in support of his contention contradicts Dr. Schauer's

testimony. As such, we must conclude, as did the trial court, that the results of the

ECOC analysis were invalid. Since invalid results are inherently unreliable, we

cannot conclude that the results of the ECOC analysis were material to Mark's

-,;i,- r-^ dlw^inJn ,, Rnnlr 'l77 F C„nn 2rl 743 755-757 (E.D.Mich.2004).^¢.luc. AJC.c. llcwi oaao v. av...o, ........ , ...^»r,S,.^» . .-, • _ _ . _ _ ^_-__ _ ^

Furthermore, Mark has cited no authority wherein invalid results, which were not

provided to the defendant, were found to be material to the defendant's guilt.

{¶102} Second, the results of the ECOC analysis would have provided little

to no assistance in rebutting Dr. Schauer's conclusion concerning the origin of the

soot found in the duct work. First, the record reveals that ECOC analysis is "being

used as a marker for Diesel exhaust." (Docket No. 256, p. 1). Here, there is no

evidence that any of the engines located in the Wangler garage or driveway on the

-58-

Case No. 1-11-18

day of Kathy's death operated on diesel fuel. Second, and more importantly, Dr.

Schauer explained that ECOC analysis is not used to identify molecular tracers in

soot, which, as previously explained, is the means by which the origin of the soot

is identified. Rather, Dr. Schauer explained that ECOC analysis simply measures

the amount of elemental carbon and organic carbon contained in soot, which is

then used to "quantify the blackness of the [soot] deposits" as opposed to the

origin of the soot. Daubert Tr., p. 249.

{¶103} Given the foregoing, we find that the information associated with

the ECOC analysis was not material to Mark's guilt, and therefore find no Brady

violation.

B. Crim.R. 16

{¶104} Alternatively, Mark contends that he was entitled to the infonnation

, ,_ .,_ _ rr^.r ' ' ^ ^ ^ = n i cir^\ i) \ in\associaiea wiin ine ^^,v^ anaiy5Is pursua^^^ Lu 1 WDllJh k`*J•

{¶105} Crim.R. 16(B)(3), (4) provides as follows:

(B) Discovery: Right to Copy or Photograph. Upon receipt of awritten demand for discovery by the defendant, * * * the prosecutingattorney shall provide copies or photographs, or permit counsel forthe defendant to copy or photograph, the following items related tothe particular case indictment, information, or complaint, and whichare material to the preparation of a defense, or are intended for useby the prosecuting attorney as evidence at the trial, or were obtainedfrom or belong to the defendant, within the possession of, orreasonably available to the state, subject to the provisions of thisrule:

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Case No. 1-11-18

(3) Subject to divisions (D)(4) and (E) of this rule, all laboratory orhospital reports, books, papers, documents, photographs, tangibleobjects, buildings, or places;

(4) Subject to division (D)(4) and (E) of this rule, results ofphysical or mental exaininations, experiments or scientific tests;

{¶106} The State contends that the neither Crim.R. 16(B)(3) or (4) applies

in the case sub judice, since there were no results or reports generated from the

ECOC analysis. Though Dr. Schauer testified that he did "not consider the ECOC

analysis in authoring the Report, consequently rendering (B)(3) inapplicable, he

did testify that the ECOC analysis produced results, albeit invalid results. See

Daubert Tr., p. 248. Mark argues that given the language of (B)(4), the results of

the ECOC analysis, though invalid, were discoverable. Indeed, (B)(4) does not

distinguish between valid and invalid results. Instead, it merely states that the

66d,^n^^1+.,» ,.-F o,-1-.^;,-, onr tae4e ara licrnvarahlP r1VP71 tllP Y1^A1111^iJU11.J Vl clill.Q111 \+xC1.111111GL1.1V11J ulll; Lv010 lA,iv -vv v viwvav. v- . - -=v l.-...---

language of (B)(4), we agree that invalid results are discoverable, but are not

persuaded that the State was required to produce the results of the ECOC analysis.

{¶107} Pursuant to Crim.R. 16(B), "the prosecuting attorney shall provide

copies or photographs, or permit counsel for the defendant to copy or photograph"

those items which are (1) detailed in (B)(1-7) and (2) "which are material to the

preparation of a defense, or are intended for use by the prosecuting attorney as

evidence at the trial, or were obtained from or belong to the defendant, within the

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Case No. 1-11-18

possession of, or reasonably available to the state." (Emphasis added.) Crim.R.

16(B). Here, we have determined that the results of the ECOC analysis are

discoverable under (B)(4), thus satisfying the first requirement. Mark, however,

has advanced no argument as to the second requirement, i.e., whether the results

were material to the preparation of his defense, intended for use at trial by the

prosecuting attorney, or were obtained from Mark and available to or within the

State's possession. Given the lack of argument, we find that Mark has not

satisfied the second requirement. See App.R. 16(A)(7). Accordingly, we find that

the State did not violate Crim.R. 16.

{¶108} Even if the State violated Crim.R. 16, the violation would not be

grounds for reversal. "Violations of Crim.R. 16 by the prosecution may result in

reversible error only upon a showing that (1) the prosecution's failure to disclose

.11r_1 .1..4... ...c ^1..,. ,...,1^. /7l ^ ol>,, t.lorlno -^ 41xnwas a wi111U1 v1V1Q11V11 Vl U1G lU1G, `G) 1Vr^lulo^rvl^u^V Vi IOi%, ^xxxVx^^^ua^v^^ vvv.«.^

have benefited the accused in preparing a defense, and (3) the accused has suffered

prejudice." State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, T 38, citing State

v. Joseph, 73 Ohio St.3d 450, 458 (1995). Without deciding either the first or

second requirements, we find, for the reasons stated in overruling Mark's Brady

argument, that Mark cannot establish prejudice because there was no reasonable

probability that the outcome of the trial would have been different had the State

disclosed the information related to the ECOC analysis.

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Case No. 1-11-18

{¶109} Given the foregoing, we find that the State's violation of Crim.R.

16 does not constitute reversible error.

II. Depositional Velocity Data

{¶110} During the Daubert hearing it was discovered that Dr. Schauer

considered depositional velocity data in determining how quickly the soot found in

the duct work would have accumulated. Mark, having not been aware of Dr.

Schauer's consideration of the depositional velocity data, moved the trial court to

order the State to provide the data arguing that access to such data is necessary to

challenge Dr. Schauer's conclusions or subject them to replication. The trial court

denied Mark's motion, finding that the data was work product.

{¶111} On appeal, Mark contends that the trial court erred when it refused

to order the State to provide the depositional velocity data. First, Mark contends

Lt_= ii__ ,7- ^1,..___l.y 1...^,,. l.oo,-. ,-, <riAoA 1'vvi^rc^iar^4' n C"rim R 1h A1tPrnativelv_CP1dL LI1C UQ L'd J11VUlU 11A v G vGOil Yr v v luvu Y ui ouui=, ^.. ^_____•_-• - ^• __ ______ .__^

Mark contends the data is material to his guilt, and should have been provided

pursuant Brady v. Maryland. We will address each contention in turn.

A. Crim.R. 16

{1[112} Mark contends that the depositional velocity data should have been

provided pursuant to Crim.R. 16. Mark, however, does not cite which provision of

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Case No. 1-11-18

Crim.R. 16 applies.19 "It is not appropriate for an appellate court to construct the

legal arguments in support of an appellant's appeal." Beckett v. Wisniewski, 3d

Dist. No. 5-09-17, 2009-Ohio-6158, ¶ 16, citing Petro v. Gold, 166 Ohio App.3d

371, 2006-Ohio-943, ¶ 94 (10th Dist.). "If an argument exists that can support

[an] assignment of error, it is not [an appellate] court's duty to root it out." Id.

Accordingly, since Mark does not cite (and consequently does not argue) which

provision of Crim.R. 16 requires production of the data, we decline to address

Mark's contention.

B. Brady Issue

{¶113} Alternatively, Mark contends that the depositional velocity data is

material to his guilt. Specifically, Mark contends that without the data "there

[was] no way to adequately challenge Schuaer's conclusions or subject them to

,• ^,__ scientific +^ ^a » n,..,.oit^^+^^ R, „ 2S ^AThiIP ^a^P rln notrepllcaLioT1 using llic Ji:iell^lliV llic^llvu. r^-P1,..iiuiit, a L1., F. - .. ^^.^. ,. ^. ^-

doubt that having the data would have allowed Mark to more thoroughly vet Dr.

Schauer's conclusions, review of the record reveals that had the data been

disclosed it could not reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.

{¶114} Viewing the record as a whole, we fail to see how access to the

depositional velocity data would undermine confidence in the verdict. Dr.

'9 We further note that review of the record, particularly the Daubert hearing and Mark's motion requesting

the trial court's reconsideration of its ruling concerning the data, reveals that Mark did not cite which

provision of Crim.R. 16 requires production of the data.

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Case No. 1-11-18

Schauer's conclusion that exhaust was directly introduced into the duct work was

based on the data as well as photographs of soot stains on the exterior of the duct

work and the wall above the register in Kathy's bedroom. Considering Dr.

Schauer's testimony, it appears that the data and photographs each provided an

individual basis for Dr. Schauer's conclusion that exhaust was directly introduced

into the duct work. Consequently, even if we were to assume that the data was

somehow erroneous, the photographs still provide a basis for Dr. Schauer's

conclusion. In addition, Dr. Schauer testified at trial that he had never before

considered depositional velocity data as it pertains to soot found in duct work.

Clearly, this testimony calls into question Dr. Schauer's ability to accurately

determine how long it would have taken for the soot found in the duct work to

accumulate. Accordingly, we fail to see how more evidence concerning the data

and Dr. Schauer 's consia, _erat

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{¶115} Furthermore, the United States Supreme Court has rejected the idea

that the materiality standard should go to the defendant's ability to prepare for

trial. The court explained:

It has been argued that the standard should focus on the impact ofthe undisclosed evidence on the defendant's ability to prepare fortrial, rather than the materiality of the evidence to the issue of guiltor innocence. Such a standard would be unacceptable fordetermining the materiality of what has been generally recognized as"Brady material" for two reasons. First, that standard wouldnecessarily encompass incriminating evidence as well as exculpatoryevidence, since knowledge of the prosecutor's entire case would

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Case No. 1-11-18

always be useful in planning the defense. Second, such an approachwould primarily involve an analysis of the adequacy of the noticegiven to the defendant by the State, and it has always been theCourt's view that the notice component of due process refers to thecharge rather than the evidentiary support for the charge. (Citation

omitted.) Agus, 427 U.S. 97, fn. 20, 96 S.Ct. 2392.

{¶116} We interpret Mark's contention, quoted above, as arguing that

access to the data was necessary to prepare for trial. Given Mark's contention and

the precedent set forth in Agurs, we find that Mark has failed to establish the

materiality of the data.

{¶117} Given the foregoing, we find that the depositional velocity data was

not material to Mark's guilt, and therefore find no Brady violation.

{¶118} Apart from our determination that no Brady violation occurred,

Mark contends that without the data the trial court was incapable of preforining a

complete Daubert analysis of the methodology. While the trial court did not

review the data firsthand, the testimony during the Daubert hearing was sufficient

to determine the reliability of the data, and consequently the methodology.

Moreover, given the nature of the data at issue, which apparently is comprised of

complex mathematical formulas, we are not convinced that the trial court's

reliability determination would have been any different had it considered the data.

{¶119} Accordingly, we overrule Mark's fourth assignment of error.

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CaseNoo 1-11-18

{¶120} Having found no error prejudicial to Mark herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

P ST®N and WILLAMOWSKI, J.J., concur.

/jlr

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APPENDIX 2

^-^I L ^*^;x^^^^

} 3 P ;,.. _.l ^] 1

IN THE COURT OF APPEALS OF tO OHIOTHIRD APPELLATE DISTRWIDIEC' -5 NMI 12

ALLEN COUNTY

«^_ i.,i ^f ^ F f

^`"'S"^.«!....E4 Srl^ I ^ Y. tJ^:^k•^ ...

STATE OF OHIO9

PLAINTIFF-APPELLEE,

V.

MARK A. WANGLER,

CASE NO. 1-11-18

JUDGMENTENTRY

DEFENDANT-APPELLANT.

This matter comes on for determination of Appellant's application for

reconsideration pursuant to App.R. 26(A), and Appellee's response in opposition

to the application.

Upon consideration the Court finds that the application fails to raise any

error in the decision or any issue not properly considered in the first instance. See

Garfield Hts. City School Dist. v. State Bd. of Edn. (1992), 85 Ohio App.3d 117;

Columbus v. Hodge (1987), 37 Ohio App.3d 68. Appellant's application raises the

same arguments that were fully and correctly addressed by the Court.

Accordingly, the application is not well taken.

^ ^^^^^ - C4a

Case No. 1-11-18

It is therefore ORDERED that Appellant's application for reconsideration

be, and the same hereby is, denied. ryL.

JUDGES

DATED: December 5, 2012/hlo

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