John Britt v. State of Arkansas

                                 Cite as 2025 Ark. App. 412
                     ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CR-24-383



 JOHN BRITT                                      Opinion Delivered September 10, 2025
                                APPELLANT
                                                 APPEAL FROM THE BENTON
                                                 COUNTY CIRCUIT COURT
 V.                                              [NO. 04CR-16-2178]

 STATE OF ARKANSAS                               HONORABLE BRAD KARREN, JUDGE
                                   APPELLEE

                                                 AFFIRMED


                                 BART F. VIRDEN, Judge

      Appellant John Britt appeals from the Benton County Circuit Court’s order denying

his petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Britt argues on appeal

that his trial counsel were ineffective in that they (1) failed to properly challenge the

admissibility of the State’s DNA evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993); (2) failed to consult with an expert before filing a motion in connection

with the Daubert hearing; (3) failed to ensure that the defense expert was adequately prepared

prior to the Daubert hearing; (4) presented damaging DNA-related testimony from his own

expert; (5) failed to properly cross-examine the State’s DNA experts at trial; (6) failed to

present expert DNA testimony on his behalf at trial; and (7) failed to adequately or properly

attack the statistical evidence presented by the State’s expert at trial. We affirm the trial

court’s denial of relief.
                                   I. Procedural Background

       In January 2017, Britt was charged with raping his then thirteen-year-old daughter. A

rape kit was performed, and DNA material from the minor child’s (MC’s) body and her

clothing were sent to the Arkansas State Crime Laboratory (“crime lab”) for testing. Because

insufficient DNA material was present on the samples provided, the more common

autosomal DNA testing could not be done; instead, Y-STR testing was performed. “Y-STR”

means short tandem repeat of the Y chromosome. Britt v. State, 2019 Ark. App. 145, at 1

n.1, 573 S.W.3d 567, 568 n.1 (“Britt I”). Y-STR testing amplifies the male Y chromosome

and excludes those men who do not share the same paternal lineage. Id. at 2, 573 S.W.3d at

569. The profiles created from the samples of DNA material from MC’s body and clothing

using the Y-STR testing were consistent with Britt’s profile created through autosomal testing

of a known sample of Britt’s DNA.

       Britt filed a motion requesting a Daubert hearing to challenge the admissibility of

expert testimony with respect to Y-STR testing of the DNA evidence. Under Daubert, the

trial court must make a preliminary assessment of whether the reasoning or methodology

underlying expert testimony is valid and whether the reasoning and methodology used by

the expert has been properly applied to the facts in the case. The trial court granted Britt’s

request for a hearing. At the hearing, Britt presented testimony from Mary Robinette, a

retired chemist formerly employed by the crime lab. Robinette testified generally that Y-STR

is a valid science and said that Y-STR testing plays “a great role” in forensics. She also


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explained the limitations of Y-STR testing and expressed concerns with the testing in this

case. Robinette noted possible cross-contamination due to the rushed process and confusion

over the source of the statistics. The trial court ultimately denied Britt’s motion to exclude

the DNA evidence after finding that Y-STR testing is reliable and that expert testimony on

the subject could be helpful to the jury.

       At trial, the State presented testimony by Julie Butler, the DNA analyst who tested

the samples in this case, and Ada LeDoux, a serologist. The State also presented testimony

by the victim. MC testified that Britt forced her to perform oral sex on him and that it later

progressed to vaginal intercourse. Britt did not call Robinette or any other DNA expert at

trial. Britt and his wife, Hannah, testified. A jury found Britt guilty of rape, and he was

sentenced to forty years’ imprisonment. He filed an appeal, challenging the admissibility of

expert testimony regarding the Y-STR testing of the DNA evidence. We affirmed his

conviction in Britt I.

       Britt subsequently filed a petition for postconviction relief pursuant to Rule 37. He

was granted permission to amend his petition. He sought an extension to hire a DNA expert,

but the trial court denied his request. Before filing his amended petition, Britt moved for a

continuance so that his recently hired DNA expert could review the evidence. The trial court

denied this request as well. The trial court then denied Britt’s Rule 37 petition without an

evidentiary hearing. Britt appealed, and we reversed and remanded because the trial court

erred in finding that time constraints prevented it from granting Britt’s motion to file an




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enlarged petition and further erred by applying the wrong standard for granting or denying

an evidentiary hearing. Britt v. State, 2022 Ark. App. 58, 639 S.W.3d 919 (“Britt II”).

       On remand, Britt filed his amended Rule 37 petition, raising the arguments he now

raises on appeal, and the trial court held an evidentiary hearing at which Britt called Kevin

Lammers and Sam Hall, the Benton County public defenders who had been appointed to

represent him. Britt also called Mehul Anjaria to testify about the DNA evidence. The State

presented two witnesses from the crime lab: Mandi Wertenberger, a forensic serologist and

physical-evidence supervisor, and Jennifer Beaty, supervisor of the forensic DNA section.

Relevant to Britt’s arguments on appeal from the denial of his Rule 37 petition is the

following testimony from the evidentiary hearing:

       Lammers testified that he did not recall having any direct participation in the

preparation for the Daubert hearing. Lammers testified that he thought that filing the motion

was sufficient to preserve the issue for appeal and that it was “not something that I

anticipated as being a waiver.” He stated that the court of appeals appeared to have

considered the issue even though the Daubert factors were not argued, so the matter was

preserved to some extent. Lammers admitted that he and Hall could have done a better job

with a few things—for example, the selection of an expert for the Daubert hearing. He testified

that he did not think Robinette’s testimony was helpful to Britt but said they moved on after

the Daubert hearing to focus on cross-examining the State’s expert on the reliability of the Y-

STR testing of evidence and the possibility of cross-contamination. Lammers testified that

they sought to show the limitations of Y-STR testing and how it was useful for excluding


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suspects but not for identifying them. He said that they focused on trying to keep out the Y-

STR DNA evidence through Arkansas Rule of Evidence 403 instead of Daubert because of

its confusing nature and because a jury was likely to simply seize on its being “DNA evidence”

without understanding the Y-STR testing. Lammers pointed out that, aside from the

admission of the Y-STR DNA evidence, there was still the presence of the antigen p30 and

the victim’s testimony.

       Hall testified that he did not think DNA was the State’s strongest evidence against

Britt; rather, it was Britt’s interview with the police, which was hard to overcome because

Britt did not specifically deny having raped MC. Hall testified that he knew “from the get-

go” that Daubert was “a losing issue” and that he should focus on Rule 403 and the difference

between Y-STR testing and the more common autosomal DNA testing. Hall testified that he

knew Robinette from when she worked at the crime lab, that he had spoken with her a few

times about a different case, and that he had seen her at a CLE class. Hall said that he had

spoken with Robinette a few times in preparation for the Daubert hearing but that he thought

he had filed the Daubert motion before consulting her. He admitted that he heard the

recording of Robinette’s interview with prosecutor Stuart Cearley but still used her as a

witness. Unlike Lammers, he did not think that Robinette’s testimony was not helpful

because an expert was needed for the Daubert hearing to take place and that she was able to

talk about Y-STR testing of evidence. He said that Robinette was the only expert he consulted

but that he thought there were funds available to have hired another expert. Hall said that

he did not believe another expert would have been useful because he did not think “that


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would yield a different result” because he doubted he could find an expert to debunk the

science of Y-STR DNA evidence. Hall testified that he thought he had argued the Daubert

factors at the hearing but simply failed to convince the trial court. Hall conceded that the Y-

STR DNA evidence was admitted at trial because of Robinette’s testimony. He said that he

did not call Robinette at trial because they had not been successful in suppressing the Y-STR

DNA evidence. Hall further testified that at trial, he cross-examined Butler “quite a bit” on

Y-STR testing and hammered the Y-STR DNA evidence in his closing argument. He said

that he also got LeDoux to say that the p30 antigen was not just semen and that the jury

heard the limitations of p30. The State’s witness, Beaty, was asked about the accuracy of

Hall’s description of the principles of Y-STR testing, and she said that his description to the

jury was accurate.

       Anjaria testified that he is a forensic DNA consultant and described Y-STR as “testing

of last resort” because of its limitations. He stated that he reviewed the transcripts and

records and that he disagreed with LeDoux’s statement about the p30 antigen in that its

presence does not confirm the presence of semen. He said that the presence of p30 merely

suggests the presence of semen but that there is “wiggle room.” Upon examination by the

court, however, Anjaria conceded that a 2017 version of the manufacturer’s handbook on

the test for p30 indicated that a study showed that “the forensic biologist can extract material

from vaginal swabs and stains on clothing and be confident that a positive result is due to

the presence of semen.” Anjaria said that he had relied on the 2019 version of the handbook.

Anjaria further pointed out that, with the internal vaginal swabs, only a partial profile was


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obtained—ten out of twenty-three markers. He testified that the unknown markers could

have excluded Britt given that only ten were known as being consistent with him. He also

stated that semen transfer was possible with respect to the pajama bottoms. According to

Anjaria, the statistics in this case did not establish strong identification of Britt because Y-

STR statistics do not individualize his unique profile in the population. Anjaria concluded

his testimony, saying that his expertise would have “absolutely” been helpful to Britt’s case.

       The trial court entered an order denying Britt’s amended petition for postconviction

relief. The trial court addressed separately each of the issues set forth in Britt’s petition. First,

the trial court rejected Britt’s contention that his counsel failed to properly challenge the

admissibility of the expert testimony at the Daubert hearing and found that counsel had

called into question the reliability of Y-STR testing. The trial court pointed out that, when

Robinette testified to the credibility of the testing, counsel shifted the focus to challenging

admissibility of the evidence under Arkansas Rule of Evidence 403. The trial court

concluded that counsel made several good-faith attempts to exclude the Y-STR DNA

evidence. Second, the trial court found that Hall testified that he communicated with

Robinette in preparation for the Daubert hearing. Further, the trial court pointed out that

Robinette raised concerns with the process having been rushed and with confusion over the

State’s numbers with respect to statistics. The trial court also found that, although Robinette

provided damaging testimony, Britt had not shown that another expert would have testified

differently. The trial court further pointed out that, with respect to the p30 antigen, even

Anjaria testified that, although no sperm cells were present, a study confirmed that “the


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forensic biologist can extract material from vaginal swabs and stains on clothing and be

confident that a positive result is due to the presence of semen.” Third, the trial court found

that Britt did not overcome the presumption that counsel was effective with respect to the

cross-examination of the State’s experts. The trial court found that counsel got LeDoux to

admit that she could not definitively say that the presence of p30 meant that semen was

present and later made that point abundantly clear. Also, the trial court found that counsel

was able to demonstrate for the jury the weaknesses in the statistics put forth by Butler.

Fourth, the trial court rejected Britt’s assertion that counsel was ineffective with respect to

attacking the State’s statistics given that counsel pointed out the statistics’ shortcomings in

the cross-examination of the experts and in opening and closing arguments. Fifth, the trial

court found that counsel’s failure to present a DNA expert at trial was trial strategy and not

ineffective assistance. The trial court noted Anjaria’s concession about a positive p30 result

and found that such expert testimony could not overcome the fact that there was DNA found

in the victim’s vagina, and the victim testified to how the DNA got there, i.e., through sexual

intercourse with Britt. Although the trial court made other findings, they are not relevant to

the issues on appeal. Britt now appeals from the denial of his amended petition for

postconviction relief.

                                     II. Standard of Review

       This court will not reverse a trial court’s decision granting or denying postconviction

relief unless it is clearly erroneous. Blasingame v. State, 2025 Ark. App. 259. A finding is

clearly erroneous when, although there is evidence to support it, the appellate court, after


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reviewing the entire evidence, is left with the definite and firm conviction that a mistake has

been committed. Id. We review a defendant’s ineffective-assistance-of-counsel claims using

the two-step analysis outlined in Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, a petitioner is required to show that his trial counsel’s performance was deficient

and that the deficiency prejudiced his defense. Blasingame, supra.

       First, a claimant must show that counsel’s performance was deficient. Sylvester v. State,

2017 Ark. 309, 530 S.W.3d 346. Counsel is presumed effective, and a petitioner, in claiming

deficiency, must show that trial counsel’s representation fell below an objective standard of

reasonableness. Id. To overcome that strong presumption, the petitioner must demonstrate

specific acts and omissions that, when viewed from trial counsel’s perspective over the course

of the trial, could not have been the result of reasonable professional judgment. Id. Neither

conclusory statements nor allegations without factual substantiation are sufficient to

overcome the presumption that counsel was effective. Turnbo v. State, 2025 Ark. 106.

       As for the remaining issue of prejudice, a petitioner must show that there is a

reasonable probability that, but for counsel’s errors, the fact-finder would have had a

reasonable doubt respecting guilt. Wilder v. State, 2025 Ark. 88. A reasonable probability is a

probability sufficient to undermine confidence in the outcome of the trial. Id. If the

petitioner fails to make the threshold showing on the issue of deficiency, the remaining

prong that weighs its potential prejudicial effect need not be addressed. Arnold v. State, 2022

Ark. 191, 653 S.W.3d 781.

                                        III. Discussion

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                                      A. Pretrial Hearing

        1. Failure to properly challenge admissibility of evidence under Daubert standards

       Britt relies on our 2019 opinion in which we “bluntly” pointed out that his argument

that the trial court erred in admitting Y-STR DNA evidence was not preserved because he

did not argue the Daubert factors below. He argues that counsel had the benefit of Northern

v. State, 2015 Ark. App. 426, 467 S.W.3d 755, in which we refused to consider a Daubert

challenge on appeal because the factors had not been argued below, yet counsel made the

same unprofessional error. Britt asserts that this was not a matter of trial strategy; rather, it

was negligence. He argues that, because the State’s DNA evidence was the crux of its case,

prejudice under Strickland was established, and but for counsel’s error, there was a reasonable

probability that the result of the trial would have been different.

       In Britt I, we held that, although evidence was not presented with respect to each of

the Daubert factors, the trial court had discretion to determine which factors were reasonable

measures of reliability and that the trial court could have concluded that Y-STR testing of

DNA evidence was not the sort of “junk science” with which Daubert was concerned. We

noted that Britt had not argued the Daubert factors below, as he did on appeal, but said that,

to the extent his argument was preserved, the trial court did not err in admitting expert

testimony on Y-STR testing of the DNA evidence. The failure to make an argument that is

meritless is not ineffective assistance of counsel. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d

678. We do not consider Britt’s conclusory statement about prejudice because Britt has failed

to show that counsel’s performance was deficient.


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                   2. Failure to consult an expert before filing Daubert motion

        Britt’s only argument under this subpoint is that “the Rule 37 testimony showed that

counsel failed to consult with any expert prior to filing his Daubert motion. (Counsel’s failure

here is referenced in email correspondence with Robinette.)” Because Britt does not explain

what trial counsel would have done differently had they consulted with an expert and does

not otherwise develop this conclusory statement, this point will not be addressed.

Conclusory allegations that are unsupported by facts do not provide a basis for

postconviction relief, and we do not research or develop arguments for appellants. Matlock

v. State, 2020 Ark. App. 399, 606 S.W.3d 601.

               3. Failure to adequately prepare Robinette for the Daubert hearing

       Britt argues that the prosecutor’s interview with Robinette only a week before the

Daubert hearing would have demonstrated that she had nothing to offer the defense, yet

counsel did not investigate the matter. Further, Robinette claimed in the interview not to

have spoken with defense counsel and suggested that she had reviewed the case file at the

last minute. Britt argues that, even though Robinette did not have “the full picture” of the

DNA analysis, trial counsel unreasonably called her to testify at the Daubert hearing. Britt

points out that Robinette presented damaging testimony that trial counsel would have been

able to predict had either of them spoken with her or reviewed the interview transcript.

       Hall testified that he knew the Daubert matter was “a losing issue” from the start but

that he had spoken with Robinette and maybe sent her a few emails before the hearing. Hall

testified that he did review the interview transcript, that he was confident that Robinette’s


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testimony about the science was correct, and that he had hoped to use Robinette’s testimony

to show that the admission of Y-STR DNA evidence would be too confusing to a jury.

Matters of trial strategy and tactics, even if arguably improvident, fall within the realm of

trial counsel’s professional judgment and are not grounds for a finding of ineffective

assistance of counsel. Sims v. State, 2015 Ark. 363, 472 S.W.3d 107. We cannot say that the

trial court erred in concluding that Britt failed to overcome the presumption that his trial

counsel’s performance was effective.

                      4. Presentation of damaging testimony by Robinette

       This subpoint is listed separately, but the argument falls within the last subpoint. The

same analysis and conclusion apply here.

                                           B. Trial

                 1. Failure to adequately cross-examine the State’s DNA experts

       Britt argues that trial counsel did not properly and adequately cross-examine Butler

and LeDoux. Britt argues that the cross-examination of LeDoux should have made clear that

she could not testify definitively that semen was present just because the p30 antigen was

present. He argues that the DNA analysis showed that p30 was present on the internal

vaginal swab and that a minute amount of male DNA was present. Britt argues that Butler

should have been asked whether she could say with certainty that whatever substance was

responsible for the p30 was also responsible for the male DNA. He asserts that this was key

since there was a debate about whether semen was even present. Britt also argues that the

DNA-transfer argument should have been made through cross-examination instead of in


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trial counsel’s closing argument. Britt argues that only a tiny amount of DNA was present

on MC’s pajama bottoms and that it should have been made clear that DNA transfer was

even more plausible in that case.

       Trial counsel was able to get LeDoux to testify that the presence of p30 does not

necessarily mean that semen is present, so Britt has failed to show that the performance by

trial counsel was deficient in that regard. As for Britt’s other points, even if he could show a

deficient performance, Britt cannot show that the outcome of his trial would have been

different. Britt states in a conclusory fashion that the fact that DNA played such a crucial

role in the State’s case against him demonstrates prejudice under Strickland. We disagree.

Even without DNA evidence, the State had MC’s testimony that Britt raped her, which was

sufficient to sustain a conviction. It is well established that the uncorroborated testimony of

the victim alone is sufficient to support a rape conviction. Perez v. State, 2016 Ark. App. 291,

494 S.W.3d 431.

                           2. Failure to present DNA expert testimony

       Britt points out that trial counsel did not present any DNA expert testimony at all

and maintains that it was crucial that the jury hear something of an expert nature in the

defense’s case-in-chief to rebut the State’s evidence or create some reasonable doubt. Britt

argues that the State’s case was mainly based on DNA evidence and that, without DNA

expert testimony to counter the State’s evidence, the outcome was predictable.

       When an ineffective-assistance-of-counsel claim is based on the failure to call an expert

witness, the petitioner must offer the name of the expert witness that should have been


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called, a summary of the admissible testimony of the expert, and a demonstration that the

outcome would likely have been different if the testimony had been offered as required.

Crawford v. State, 2023 Ark. App. 341, 669 S.W.3d 889. Britt suggests that Anjaria would

have provided expert testimony beneficial to his case similar to his testimony at the Rule 37

hearing; however, Britt has not demonstrated that, but for trial counsel’s errors, the outcome

of his trial would have been different. MC testified that Britt raped her. Again, the victim’s

testimony is sufficient to sustain his conviction without any DNA evidence whatsoever. Perez,

supra. Britt cannot show that, had trial counsel called Anjaria to offer expert DNA testimony

at trial, the outcome would have been different in light of MC’s testimony.

            3. Failure to adequately challenge the statistical evidence of Y-STR testing

       Britt argues that the statistics could and should have been better challenged. He states

that the prosecutor was able to say that greater than 99% of the population was excluded by

the statistics. Britt argues that to counter that statistic, trial counsel should have said

something to the effect of “One in 207 (internal vaginal swabs) is like 1,000 in 207,000. The

population of Arkansas is 3 million, which is approximately 1.5 million males. That means

in a population the size of Arkansas, there are thousands of males who would also be

included based on their DNA type.”

       The trial court did not clearly err in finding that trial counsel pointed out the

shortcomings of the State’s statistical evidence in his cross-examination of the State’s expert

and challenged the statistics in his opening statement and closing argument. Moreover, even

if Britt could show a deficient performance in this regard, he cannot demonstrate prejudice


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because he cannot show a reasonable probability that the outcome of his trial would have

been different given that the testimony of the victim, standing alone, is sufficient to support

a conviction for rape if the elements of the offense are proved. Burnside v. State, 2015 Ark.

App. 550, 472 S.W.3d 497. MC’s testimony provided substantial evidence to support Britt’s

rape conviction.

       Affirmed.

       TUCKER and BROWN, JJ., agree.

       Craig Lambert, for appellant.

       Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.




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