BATTAGLIA, J.

Petitioner, Stephen Blair Jackson, in 2015 filed a petition for DNA testing pursuant to Section 8-201 of the Criminal Procedure Article of the Maryland Code.1 In his Petition, Jackson alleged that testing a piece of underwear for the presence of his DNA as well as testing of additional material collected on laboratory microscope slides, which remained from a Sexual Assault Forensics Exam ("SAFE") that had been performed on a victim, known as Patricia M., in 1993, "ha[ve] the potential to show that Petitioner's DNA is not on the complainant's underwear, evidence that would have been inconsistent with her undisclosed statements that he ejaculated and that she had not showered or douched since then" and "would also clarify this issue by producing exculpatory or mitigating evidence." Jackson's Petition also requested that Touch DNA2 be utilized in testing, because it could "provide exculpatory evidence that was not available in 2006."

In the underlying case Jackson had entered an Alford plea3 to second degree rape of Patricia M.4 in 1993.5 Jackson thereafter filed numerous petitions for DNA testing, including a petition in 2005, which was granted;6 the results of DNA testing done pursuant to the 2005 Petition yielded inconclusive results.7 Jackson then filed a petition for DNA testing in 2008,8 which the Circuit Court denied. In 2009, Jackson filed a petition for post-conviction relief pursuant to the Uniform Postconviction Procedure Act, in which he alleged that he was actually innocent of the crime of rape; that the State withheld exculpatory evidence; that his guilty plea was not knowing, intelligent and voluntary; and that his trial counsel rendered ineffective assistance of counsel. Jackson's Petition was denied, but Jackson was permitted to file a belated Motion for Reconsideration of Sentence.

Jackson again filed a petition for DNA testing in 2013, which the Circuit Court denied. In his 2013 Petition, Jackson sought to have Patricia M.'s underwear tested using a "wide range of testing services including, STR[9], Y-STR[10], and mtDNA[11] that conform to the 13 core CODIS loci used by the FBI." He argued that, "[a]dvances in the field of DNA Testing have been made since those tests were performed and give rise to a reasonable probability that additional testing will yield exculpatory evidence supporting Petitioner's claim of innocence. DNA Testing should further bolster Petitioner's claim of innocence since EXHIBIT C5 line 8[12] clearly shows, according to the victim, that Petitioner penetrated the vulva, ejaculated, and did not wear a condom." Jackson noted an appeal from the denial of his 2013 petition but later withdrew his appeal.

In June of 2015, Jackson filed a Petition for DNA testing, in which he alleged that DNA testing "has the potential to show that Petitioner's DNA is not on the complainant's underwear, evidence that would have been inconsistent with her undisclosed statements that he ejaculated and that she had not showered or douched since then" and "would also clarify this issue by producing exculpatory or mitigating evidence." Jackson's Petition also requested that Touch DNA be utilized, because it could "provide exculpatory evidence that was not available in 2006." Judge Vicki Ballou-Watts of the Circuit Court for Baltimore County denied the Petition, thus giving rise to the appeal that is before us, in which we consider the following question:

Initially, the State has moved to dismiss Jackson's appeal, arguing, among other issues,14 that successive petitions for DNA testing are barred by Rule 4-709,15 as well as by the doctrine of res judicata.

Section 8-201 of the Criminal Procedure Article, the statute in issue in the present case, does not bar, nor explicitly sanction, filing successive DNA petitions.16 The legislative history of Section 8-201 suggests, however, that the Legislature intended that successive petitions for DNA testing can be filed.

In 2001, the General Assembly enacted Chapter 418 of the Laws of 2001, which later became codified as Section 8-201 of the Criminal Procedure Article. Senate Bill 694 from which Chapter 418 emanated had been introduced as a response to a nationwide trend in which various states and the federal government had "considered establishing procedures for postconviction DNA identification testing for certain felony offenses." Revised Fiscal Note, Department of Fiscal Services, Bill File S.B. 694. DNA testing had been recognized as a "law enforcement tool, used to establish either the guilt or innocence of suspected or convicted offenders", which also could be utilized to exonerate defendants who were "wrongfully convicted or sentenced." Id. Chapter 418, a portion of which was later codified as Section 8-201(c), provided in relevant part that:

2001 Maryland Laws, Chapter 418.

That language of Section 8-201(c)(1) through (4) that would have precluded various successive DNA testing petitions was removed when Chapter 240 of the Laws of 2003 was enacted. Chapter 240 deleted all reference to prior petitions and replaced former Section 8-201(c)(1)-(6) with the following:

2003 Maryland Laws, Chapter 240. Easing restrictions on successive DNA petitions was in direct contrast to what the General Assembly had done in 1995, when Chapter 110 of the Laws of 1995 limited the number of successive petitions under the Uniform Post Conviction Procedure Act.19

In enacting Rule 4-70420 in 2009, we recognized that successive petitions filed post conviction could be filed without any exclusion for successive DNA petitions:

Filing successive DNA testing petitions, thus, was anticipated by our adoption of Rule 4-704 that implemented Section 8-201(c), as amended.

The issue of whether the doctrine of res judicata could bar the filing of successive petitions, moreover, was raised during the Rules Committee process for Rule 4-704. In a colloquy between the Honorable Alan Wilner, the Chair of the Rules Committee, and Richard Karceski, a member of the Rules Committee, res judicata as a bar was discussed:

Minutes of the Standing Committee on Rules, May 15, 2009, at 65-66 (on file with the Court of Appeals Standing Committee on Rules of Practice and Procedure).

The effect of res judicata, or "a thing adjudicated," is that it acts as a direct estoppel:

Powell v. Breslin, 430 Md. 52, 64, 59 A.3d 531, 538 (2013). The "overarching purpose" of the doctrine of res judicata is "judicial economy." Id. The doctrine "avoids the expense and vexation attending multiple lawsuits, conserves the judicial resources and fosters reliance on judicial action by minimizing the possibilities of inconsistent decisions." Anne Arundel County Bd. of Educ. v. Norville, 390 Md. 93, 107, 887 A.2d 1029, 1037 (2005).

Heretofore we have not addressed the application of res judicata to successive petitions for DNA testing, nor has there been much discussion of the subject in other state courts. We, however, do find persuasive the reasoning of the intermediate appellate court of Ohio in State v. Ayers, 185 Ohio App.3d 168, 923 N.E.2d 654 (2009). In that case, Ayers appealed the denial of his second successive petition for DNA testing; the trial court had applied res judicata as a bar. The Ohio intermediate appellate explored the fact that the Ohio General Assembly had amended the DNA testing statute and thereby had lowered the threshold for DNA testing in order to enable more robust opportunities to secure DNA testing:

Id. at 658-59. In a powerful gesture about the importance of DNA testing, the Ohio Court held that res judicata does not bar successive DNA testing petitions in that state:

Id. at 659. As a result, the Ohio intermediate appellate court determined that although res judicata would bar successive post-conviction petitions in Ohio, it would not bar successive DNA testing petitions.21

In Maryland, like in Ohio, the General Assembly in 2003 lowered the threshold enacted in 2001 to determine when DNA testing should be ordered. In 2001, the standards governing when DNA testing could be ordered were rigorous:

In 2003 when the statute was amended, the standards were lowered to that which it now reflects:

We already have recognized that the 2003 amendment relaxed the standard for entitlement to DNA testing in Gregg v. State, 409 Md. 698, 711-12, 976 A.2d 999, 1008-07 (2009), when we stated that:

Our legislative history with respect to the standard that must be met in order to enable DNA testing to exonerate the innocent, thus, mirrors that of Ohio, and we agree with the Ohio intermediate appellate court that res judicata, ordinarily, should not bar successive petitions for DNA testing. We, therefore, deny the State's Motion to Dismiss.

Jackson asks that we grant his 2015 Petition for DNA testing or remand to the Circuit Court for a hearing on the Petition. In his 2015 Petition for DNA testing, Jackson alleged that testing of a piece of Patricia M.'s underwear for the presence of his DNA, as well as testing of additional material collected on laboratory microscope slides, which remained from a SAFE exam that had been performed on Patricia M., "ha[ve] the potential to show that Petitioner's DNA is not on the complainant's underwear, evidence that would have been inconsistent with her undisclosed statements that he ejaculated and that she had not showered or douched since then" and "would also clarify this issue by producing exculpatory or mitigating evidence." Jackson's Petition also requested that Touch DNA be utilized in testing, because it could "provide exculpatory evidence that was not available in 2006."

Jackson's counsel attempted to clarify Jackson's 2015 Petition before us at oral argument when she stated:

In rebuttal argument in response to the State's claim that Jackson did not sufficiently clarify his reasons for testing the underwear, Jackson's counsel stated:

Judge Ballou-Watts denied Jackson's 2015 Petition without a hearing, pursuant to Rule 4-709, when she ordered:

Section 8-201(c) does provide the standard to be utilized to determine when DNA testing should be ordered, as Judge Ballou-Watts recognized:

Whether a hearing must be held on a petition filed under Section 8-201 is governed by Rule 4-709, which provides:

Essentially, then, under the Statute and the Rule, a petitioner may be entitled to a hearing if he or she has standing, and if "there may be a reasonable probability" that the acceptable DNA testing method has "the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing".

In applying the standard, we recognize that Jackson and the State agree that an official transcript of Jackson's Alford plea hearing does not exist and cannot be created. Jackson, however, in his Motion for Reduction of Sentence filed in 1994, which he ratified in his brief before us, recounted what the State recited in the Alford plea colloquy regarding what would have been proven were the case to have gone to trial:

We evaluate whether Touch DNA testing of Patricia M.'s underwear and of laboratory microscope slides left from the SAFE exam could or would have had the scientific potential with a reasonable probability to produce exculpatory evidence of his wrongful conviction for second degree rape. In so doing, we determine that Jackson's 2015 Petition was properly denied without a hearing by the Circuit Court Judge, albeit without her including factual findings; we choose not to remand for inclusion of further findings, however, because of the obvious futility of Jackson's assertions.

A conviction for second degree rape in 1993, and now, requires vaginal intercourse "by force or threat of force against the will and without the consent of the victim[.]" State v. Rusk, 289 Md. 230, 240, 424 A.2d 720, 725 (1981). The facts that would have been presented at trial were that Patricia M. continuously told Jackson to stop but Jackson persisted in having vaginal intercourse with her, after he had pushed Patricia M. down on the bed and overcome continuous resistance to have vaginal intercourse with her. Saying no means no, even were the intercourse to have begun consensually, as we noted in State v. Baby, 404 Md. 220, 260, 946 A.2d 463, 486-87 (2008).

None of Jackson's assertions in his 2015 Petition, in which he requested Touch DNA testing of underwear and testing of laboratory microscope slides, would have produced evidence which would have exculpated him of second degree rape under the standard of Section 8-201(c). We, therefore, affirm the denial of Jackson's 2015 Petition for DNA testing.

ORDER OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS IN THIS COURT TO BE PAID BY PETITIONER.