outcome-determinative analysis in Ohio

2015We are left to take appellant’s word for it because there is no transcript in the record before this court. {¶16} Appellant uses the lack of a definitive test to argue that advances in DNA testing could provide an outcome determinative test, satisfying the fifth element above, and therefore, further testing should be granted in his case. {¶17} The arguments appellant sets forth about advances in DNA testing sophistication were also made in Ayers, 185 Ohio App.3d 168 , 2009-Ohio-6096 , 923 N.E.2d 654 (8th Dist.).

2015We are left to take appellant’s word for it because there is no transcript in the record before this court. {¶16} Appellant uses the lack of a definitive test to argue that advances in DNA testing could provide an outcome determinative test, satisfying the fifth element above, and therefore, further testing should be granted in his case. {¶17} The arguments appellant sets forth about advances in DNA testing sophistication were also made in Ayers, 185 Ohio App.3d 168 , 2009-Ohio-6096 , 923 N.E.2d 654 (8th Dist.).

2022See, e.g., Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (noting that whether the claimed error was structural was relevant to whether the error affected substantial rights). {¶ 23} We are unaware of any court’s holding that the outcome- determinative inquiry for determining the prejudice-prong of the plain-error analysis is the exclusive means of finding that a plain error is one affecting “substantial rights” under Crim.R. 52(B) or its federal analog, Fed.R.Crim.P. 52(b).

2022See, e.g., Johnson v. United States, 520 U.S. 461, 468 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997) (noting that whether the claimed error was structural was relevant to whether the error affected substantial rights). {¶ 23} We are unaware of any court’s holding that the outcome- determinative inquiry for determining the prejudice-prong of the plain-error analysis is the exclusive means of finding that a plain error is one affecting “substantial rights” under Crim.R. 52(B) or its federal analog, Fed.R.Crim.P. 52(b).

2020See, e.g., State v. Pickens, 141 Ohio St.3d 462 , 2014-Ohio-5445, ¶ 109 ; State v. Osie, 140 Ohio St.3d 131 , 2014-Ohio-2966, ¶ 85 . {¶ 20} We note, however, that in 2015, the Supreme Court, in State v. Rogers, 143 Ohio St.3d 385 , 2015-Ohio-2459 , ¶ 22, held that the outcome-determinative analysis for plain error is based on "a reasonable probability that the error resulted in prejudice" using "the same deferential standard for reviewing ineffective assistance of counsel claims." Id., citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83 (2004) (construing Fed.R.Crim.P. 52(b), the fed

2016Strickland at 697 (“With regard to the prejudice inquiry, only the strict outcome-determinative test, among the standards articulated in the lower courts, imposes a heavier burden on defendants than the tests laid down today”); United States v. Dominguez Benitez, 542 U.S. 74, 83 , 124 S.Ct. 2333 , 159 L.Ed.2d 157 (2004), fn. 9 (“The reasonable-probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different”).

2025See also Rivera, 402 S.C. at 249-50 , quoting Fulminante, 499 U.S. at 289 (finding a deprivation of the right to testify amounts to structural error because “the right of an accused to testify in his defense is fundamental to the trial process”); State v. Hampton, 818 So.2d 720, 729 (La. 2002), quoting Rock at 52 (emphasis in original) (internal quotation marks omitted) (noting the language from Rock that “spoke of the right to testify as among those rights that ‘are essential to due process of law in a fair adversary process. . . . [U]nmistakably places the defendant’s right to testify 7 In W

2025See also Rivera, 402 S.C. at 249-50 , quoting Fulminante, 499 U.S. at 289 (finding a deprivation of the right to testify amounts to structural error because “the right of an accused to testify in his defense is fundamental to the trial process”); State v. Hampton, 818 So.2d 720, 729 (La. 2002), quoting Rock at 52 (emphasis in original) (internal quotation marks omitted) (noting the language from Rock that “spoke of the right to testify as among those rights that ‘are essential to due process of law in a fair adversary process. . . . [U]nmistakably places the defendant’s right to testify 7 In W

2025State v. Mounts, 2023-Ohio-3861, ¶ 52 (1st Dist.). {¶63} Recently, the Ohio Supreme Court made an exception to this outcome- determinative requirement in a plain-error analysis, but only in cases involving structural error.

2025See also Rivera, 402 S.C. at 249-50 , quoting Fulminante, 499 U.S. at 289 (finding a deprivation of the right to testify amounts to structural error because “the right of an accused to testify in his defense is fundamental to the trial process”); State v. Hampton, 818 So.2d 720, 729 (La. 2002), quoting Rock at 52 (emphasis in original) (internal quotation marks omitted) (noting the language from Rock that “spoke of the right to testify as among those rights that ‘are essential to due process of law in a fair adversary process. . . . [U]nmistakably places the defendant’s right to testify 7 In W

2025See also Rivera, 402 S.C. at 249-50 , quoting Fulminante, 499 U.S. at 289 (finding a deprivation of the right to testify amounts to structural error because “the right of an accused to testify in his defense is fundamental to the trial process”); State v. Hampton, 818 So.2d 720, 729 (La. 2002), quoting Rock at 52 (emphasis in original) (internal quotation marks omitted) (noting the language from Rock that “spoke of the right to testify as among those rights that ‘are essential to due process of law in a fair adversary process. . . . [U]nmistakably places the defendant’s right to testify 7 In W

2025See also Rivera, 402 S.C. at 249-50 , quoting Fulminante, 499 U.S. at 289 (finding a deprivation of the right to testify amounts to structural error because “the right of an accused to testify in his defense is fundamental to the trial process”); State v. Hampton, 818 So.2d 720, 729 (La. 2002), quoting Rock at 52 (emphasis in original) (internal quotation marks omitted) (noting the language from Rock that “spoke of the right to testify as among those rights that ‘are essential to due process of law in a fair adversary process. . . . [U]nmistakably places the defendant’s right to testify 7 In W

2025See also Rivera, 402 S.C. at 249-50 , quoting Fulminante, 499 U.S. at 289 (finding a deprivation of the right to testify amounts to structural error because “the right of an accused to testify in his defense is fundamental to the trial process”); State v. Hampton, 818 So.2d 720, 729 (La. 2002), quoting Rock at 52 (emphasis in original) (internal quotation marks omitted) (noting the language from Rock that “spoke of the right to testify as among those rights that ‘are essential to due process of law in a fair adversary process. . . . [U]nmistakably places the defendant’s right to testify 7 In W

2024See Setters v. Durrani, 2020-Ohio-6859 , 164 N.E.3d 1159, ¶ 22 (1st Dist.).

2024See Setters v. Durrani, 2020-Ohio-6859 , 164 N.E.3d 1159, ¶ 22 (1st Dist.).

2024In deciding if the outcome-determinative requirement has been satisfied, trial courts “ ‘shall consider all available admissible evidence related to the subject offender's case.’ ” Id., quoting R.C. 2953.74(D). {¶ 41} Further restrictions are that trial courts “may ‘accept’ an eligible inmate's application for DNA testing only if the following factors are present: (1) biological material was collected from the crime scene or the victim(s), and the parent sample of that biological material still exists; ( 2) the parent sample of the biological material is sufficient, demonstrably uncorrupted, a

2024In deciding if the outcome-determinative requirement has been satisfied, trial courts “ ‘shall consider all available admissible evidence related to the subject offender's case.’ ” Id., quoting R.C. 2953.74(D). {¶ 41} Further restrictions are that trial courts “may ‘accept’ an eligible inmate's application for DNA testing only if the following factors are present: (1) biological material was collected from the crime scene or the victim(s), and the parent sample of that biological material still exists; ( 2) the parent sample of the biological material is sufficient, demonstrably uncorrupted, a

2022See, e.g., United States v. Barnhart, 599 F.3d 737, 745-747 (7th Cir.2010) (holding that although the judge’s questioning witnesses constituted error, that error did not affect the defendant’s substantial rights, because he failed to show that “but for the judge’s improper questioning, he probably would not have been convicted”); United States v. Rivera-Rodríguez, 761 F.3d 105, 123 (1st Cir.2014) (concluding that the case against the defendant was not strong and thus “[w]ithout [the judge’s] improper interventions, there is a reasonable probability that [the defendant] would 11 SUPREME COURT O

2022See, e.g., United States v. Barnhart, 599 F.3d 737, 745-747 (7th Cir.2010) (holding that although the judge’s questioning witnesses constituted error, that error did not affect the defendant’s substantial rights, because he failed to show that “but for the judge’s improper questioning, he probably would not have been convicted”); United States v. Rivera-Rodríguez, 761 F.3d 105, 123 (1st Cir.2014) (concluding that the case against the defendant was not strong and thus “[w]ithout [the judge’s] improper interventions, there is a reasonable probability that [the defendant] would 11 SUPREME COURT O

2020The Supreme Court marked the existence of this shift when, two years later, it stated: Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." [State v. Barnes, 94 Ohio St.3d 21, 27 (2002).] We recently clarified in State v. Rogers, * * * that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) I

2020See, e.g., State v. Pickens, 141 Ohio St.3d 462 , 2014-Ohio-5445, ¶ 109 ; State v. Osie, 140 Ohio St.3d 131 , 2014-Ohio-2966, ¶ 85 . {¶ 20} We note, however, that in 2015, the Supreme Court, in State v. Rogers, 143 Ohio St.3d 385 , 2015-Ohio-2459 , ¶ 22, held that the outcome-determinative analysis for plain error is based on "a reasonable probability that the error resulted in prejudice" using "the same deferential standard for reviewing ineffective assistance of counsel claims." Id., citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83 (2004) (construing Fed.R.Crim.P. 52(b), the fed

2020See, e.g., State v. Pickens, 141 Ohio St.3d 462 , 2014-Ohio-5445, ¶ 109 ; State v. Osie, 140 Ohio St.3d 131 , 2014-Ohio-2966, ¶ 85 . {¶ 20} We note, however, that in 2015, the Supreme Court, in State v. Rogers, 143 Ohio St.3d 385 , 2015-Ohio-2459 , ¶ 22, held that the outcome-determinative analysis for plain error is based on "a reasonable probability that the error resulted in prejudice" using "the same deferential standard for reviewing ineffective assistance of counsel claims." Id., citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83 (2004) (construing Fed.R.Crim.P. 52(b), the fed