[Cite as State v. Pannell, 2017-Ohio-4286.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 16-CA-102
                                                :
 VANCE L. PANNELL                               :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Licking County Court of
                                                    Common Pleas, Case No. 16 CR 281



JUDGMENT:                                           REVERSED, VACATED, AND
                                                    REMANDED



DATE OF JUDGMENT ENTRY:                             June 13, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 KENNETH W. OSWALT                                  STEPHEN T. WOLFE
 LICKING CO. PROSECUTOR                             1350 W. 5th Ave. Suite 124
 CLIFFORD J. MURPHY                                 Columbus, OH 43212
 20 North Second St., 4th Floor
 Newark, OH 43055
Licking County, Case No. 16-CA-102                                                       2

Delaney, P.J.

       {¶1} Defendant-appellant Vance L. Pannell appeals from the November 22,

2016 Judgment Entry of the Licking County Court of Common Pleas. Plaintiff-appellee is

the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellee’s bill of particulars. This case

arose in September 2007 when a confidential informant working with the CODE Task

Force made a series of three controlled buys of crack cocaine from a person known as

“Vito” at an apartment in Newark. On January 25, 2008, members of the task force were

told “Vito” was at Licking Memorial Hospital with his girlfriend who had just given birth.

Officers made contact with “Vito” after a traffic stop and “Vito” identified himself as

“Vincent Pannell.” The subject admitted selling crack cocaine and was found to have

$1,789.00 in currency which he stated was proceeds of drug sales.

       {¶3} The subject was booked into the Licking County Jail using identifying

information of “Vincent Pannell” and eventually bonded out of jail.

       {¶4} Upon indictment of “Vincent Pannell,” officers discovered the subject was

in fact Vance Pannell (appellant), who had used his brother’s identifying information.

       {¶5} The following evidence is adduced from the hearing on appellant’s motion

to dismiss. A complaint was filed and a warrant was issued on February 7, 2008 for

appellant’s arrest upon one count of tampering with records. Detective Kyle Boerstler

testified that for approximately one month after the warrant was issued, he attempted to

execute the warrant by traveling to appellant’s last known address, 3005 Rolling Wood

Drive, Columbus. Boerstler stated each time he sat down the road from the address to
Licking County, Case No. 16-CA-102                                                        3


watch the house and never saw anyone coming or going. Boerstler did not approach the

house or knock on the door.

       {¶6} Over the next eight years, the warrant was “validated” annually by LEADS

operators, meaning it was checked to ensure it was still valid.

       {¶7} Appellant was in jail in Franklin County on an unrelated matter when the

warrant was executed upon him in May 2016.

       {¶8} On May 25, 2016, appellant was charged by indictment as follows: three

counts of trafficking in cocaine pursuant to R.C. 2925.03(A)(1) and (C)(4)(a), all felonies

of the fifth degree [Counts I, II, and III]; one count of tampering with records pursuant to

R.C. 2913.42(A)(1)(2) and (B)(1)(4), a felony of the third degree [Count IV]; and one count

of falsification pursuant to R.C. 2921.13(A)(1)(2)(3) and (F)(1), a misdemeanor of the first

degree [Count V].

       {¶9} Appellant entered pleas of not guilty and filed a motion to dismiss pursuant

to Crim.R. 12(C)(2), alleging the indictment was defective because it was filed outside the

statute of limitations. Appellee responded and appellant replied. An oral hearing was

held on July 14, 2016, after which the parties filed supplemental briefs.

       {¶10} The trial court denied appellant’s motion to dismiss via Judgment Entry

dated September 27, 2016.

       {¶11} Appellant appeared before the trial court on November 22, 2016 and

changed his pleas to ones of no contest to all five charges in the indictment. The trial

court sentenced appellant to, e.g., an aggregate prison term of 9 months.

       {¶12} Appellant now appeals from the judgment entry of his convictions and

sentence, and from the decision of the trial court overruling his motion to dismiss.
Licking County, Case No. 16-CA-102                                                          4


       {¶13} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

       {¶14} “The court erred when it denied appellant’s motion to dismiss based on the

statute of limitations.”

                                        ANALYSIS

       {¶15} In his sole assignment of error, appellant argues the trial court should have

granted his motion to dismiss. We agree.

       {¶16} The standard of review for a trial court’s ruling upon a motion to dismiss for

failure to comply with the statute of limitation “‘involves a mixed question of law and fact.

Therefore, we accord due deference to a trial court's findings of fact if supported by

competent, credible evidence, but determine independently if the trial court correctly

applied the law to the facts of the case.’” State v. Cook, 184 Ohio App.3d 382, 2009-Ohio-

4917, 921 N.E.2d 258, ¶ 25 (6th Dist.), citing State v. Bess, 182 Ohio App.3d 364, 2009-

Ohio-2254, 912 N.E.2d 1162, ¶ 23 (8th Dist.) and State v. Stamper, 4th Dist. Lawrence

No. 05CA21, 2006-Ohio-722, 2006 WL 367897, ¶ 30. See also State v. Davis, 11th Dist.

Lake No. 2008–L–021, 2008-Ohio-6991 and State v. Jackson, 1st Dist. Hamilton Nos. C–

150657, C–150658, C–150659, C–150660, 2016-Ohio-5196, 68 N.E.3d 1278, ¶ 8.

       {¶17} The purpose of the statute of limitation is to discourage inefficient or dilatory

law enforcement because prosecution should be based upon reasonably fresh, and

therefore more trustworthy, evidence. State v. McLaughlin, 109 Ohio App.3d 868, 872,

673 N.E.2d 234 (9th Dist.1996). The statutory period of limitations governing felonies is

six years, and * * * a prosecution shall be barred unless it is commenced within * * * six

years. R.C. 2901.13(A)(1). R.C. 2901.13(E) provides that a prosecution is “commenced”
Licking County, Case No. 16-CA-102                                                        5


on the date an indictment is returned * * *. A prosecution is not commenced by the return

of an indictment or the filing of an information unless reasonable diligence is exercised to

issue and execute process on the same. A prosecution is not commenced upon the

issuance of a warrant, summons, citation, or other process, unless reasonable

diligence is exercised to execute the same. (Emphasis added.)

       {¶18} The burden is upon the state to show prosecution was timely commenced.

State v. Young, 2 Ohio App.3d 155, 440 N.E.2d 1379 (1st Dist.1981). Once a warrant is

issued, it must be executed by either an arrest or summons using reasonable diligence

in compliance with Crim. R. 4(D). State v. Greer, 2 Ohio App.3d 399, 442 N.E.2d 473 (1st

Dist.1981). There must be some indication of attempts to serve the warrant by arrest or

summons. State v. Morris, 20 Ohio App.3d 321, 486 N.E.2d 168 (10th Dist.1984).

       {¶19} If a defendant demonstrates more than six years have elapsed after the

warrant was filed, the burden shifts to the prosecution to show reasonable diligence was

exercised to execute the warrant. State v. McNichols, 5th Dist. Stark No. 2000CA00058,

2000 WL 1275491, *2 (Sept. 5, 2000). The Supreme Court of Ohio, in adopting Black's

Law Dictionary's definition, has defined reasonable diligence as “[the] fair, proper and due

degree of care and activity, measured with reference to the particular circumstances; such

diligence, care, or attention as might be expected from a man of ordinary prudence and

activity.” Id., citing Sizemore v. Smith, 6 Ohio St.3d 330, 332, 453 N.E.2d 632 (1983).

Therefore, what constitutes reasonable diligence must be determined by the facts and

circumstances of each particular case. Id.

       {¶20} In the instant case, the record reveals a complaint (alleging only the

tampering offense) was filed on February 7, 2008, and an arrest warrant was issued the
Licking County, Case No. 16-CA-102                                                         6


same day. Tampering with records is a felony of the third degree pursuant to R.C.

2913.42(A)(2), thus the applicable statute of limitations is six years. At the hearing on the

motion to dismiss, appellee called two witnesses: the communications administrator of

the Licking County Sheriff’s Office and the investigating detective who filed the complaint

seeking the arrest warrant.

       {¶21} The communications administrator testified the arrest warrant was entered

into LEADS on February 8, 2008, and then “validated” annually. When asked what

“validation” consists of, the administrator replied as follows:

                     * * * *.

                     [WITNESS]: We make a list of all the warrants and it gets

              processed through the courts. They run through their list and make

              sure it’s still valid; then they send the document back to me.

                     [DEFENSE COUNSEL]: So, validating does not mean that

              you make any attempt to execute the warrant.

                     [WITNESS]: No, we’re just validating the entry.

                     * * * *.

                     T. 15.

       {¶22} The effect of the warrant’s existence in LEADS, therefore, was that the

communications staff regularly checked to make sure the warrant was still active, but this

is not execution of the warrant for purposes of Crim.R. 4(D).

       {¶23} The detective was asked to describe what efforts he made to execute the

warrant.   He testified he had several addresses for appellant in locations including

Columbus, Buckeye Lake, and Newark. The only address he checked, however, was the
Licking County, Case No. 16-CA-102                                                       7


Columbus address: 3005 Rolling Wood Drive. He made “several trips” to that address,

but he did not approach the residence or knock on the door; instead, he “[sat] down the

road” and “just watched” because he didn’t think anyone would respond if he knocked.

(T. 19). He went to the address “about three times” within the month after the warrant

was issued. When asked if he had any reason to believe appellant left the state, the

detective responded, “I believed anything’s possible. It’s not the first time that they’ve

absconded to another state.” (T. 21). The detective offered no affirmative evidence

appellant left the state or took action to avoid prosecution.

       {¶24} Appellee’s evidence also included a Franklin County arrest warrant for

appellant issued on January 23, 2007 and executed on March 22, 2016, served at 3366

Penfield Road, Columbus. Appellant’s fiancée wrote a letter to the Franklin County trial

court with the return address of 32 Esquire Drive, Canal Winchester, stating, “I understand

that it was wrong for him t[o] stay hidden for all this time, but he just didn’t want to be

away from his family.” (Appellee’s Ex. 6). Appellee argues the existence of the older

Franklin County warrant establishes appellant’s attempts to evade law enforcement, but

the record here is devoid of any evidence of attempts made to serve the Franklin County

warrant, or of the relevance to these proceedings. Nor does the letter from the fiancée

establish appellee’s reasonable diligence.

       {¶25} Appellee responds appellant purposely avoided prosecution by “specific

actions” to evade law enforcement, stating “* * * the record establishes the conduct of the

appellant in providing false identity and information to avoid prosecution.” (Appellee’s

Brief, 7-8). We disagree with appellee’s characterization of the record.
Licking County, Case No. 16-CA-102                                                          8


       {¶26} Appellant provided the false identity information prior to the issuance of the

warrant triggering appellee’s responsibility to exercise due diligence.           The 2016

indictment of appellant arose from his actions in allegedly selling drugs and lying about

his identity upon his arrest, but it is appellee’s burden to establish reasonable diligence in

the span of time between the issuance of the tampering warrant in 2008 and the

indictment eight years later. This record does not include examples of appellant’s alleged

“specific activity in providing false information, false documentation, actions on evading a

known warrant for his arrest in Licking County and avoidance of arrest on a Probation

Violation in Franklin County * * *.” (Appellee’s Brief, 6). Instead, appellee’s witness

testified he had several potential addresses for appellant, of which he checked only one;

this checking occurred only three times in the month immediately subsequent to the

issuance of the warrant; and the “checking” did not extend to knocking on the door.

       {¶27} We also disagree with appellee’s statement that the detective “* * * made

multiple inquiries of the Columbus Police Department to seek the location of the appellant

* * *.” (Appellee’s Brief, 4). Appellee does not cite any such evidence in the record, and

we are unable to find any.       Instead, we note the following exchange between the

prosecutor and the detective:

                     * * * *.

                     [PROSECUTOR]: Are you aware if any Columbus PD officers

              ever sat on the house?

                     [WITNESS]: I did make contact a couple of times with some

              detectives and just passed along the information. Now, if they

              actually went and worked it, I do not know. (Emphasis added).
Licking County, Case No. 16-CA-102                                                        9


                     * * * *.

                     T. 19.

       {¶28} We find this record devoid of evidence that appellant himself caused the

delay in serving the warrant. Where the defendant himself causes the delay by going into

hiding and the government pursues him with reasonable diligence, a claim asserting

statute of limitations would fail. See Doggett v. United States, 505 U.S. 647, 656, 112

S.Ct. 2686, 120 L.Ed.2d 520 (1992). Where the delay is intentionally caused by the

government to gain an advantage at trial, the delay will be weighed heavily against the

government. Id.    The instant case falls somewhere in-between.          “Between diligent

prosecution and bad-faith delay, official negligence in bringing an accused to trial

occupies the middle ground.” Id. at 656-657. Negligence, however, “still falls on the wrong

side of the divide between acceptable and unacceptable reasons for delaying a criminal

prosecution once it has begun.” Id. at 657. The longer the delay due to official negligence,

the less tolerable the delay becomes. Id.

       {¶29} Appellee's three attempts at service in eight years, when there is no

evidence appellee approached the residence where appellant was thought to live and

other locations were never investigated, does not demonstrate due diligence. See,

McNichols, supra, 5th Dist. Stark No. 2000CA00058, 2000 WL 1275491, *2 (Sept. 5,

2000) [no reasonable diligence in 12 years during which appellant lived openly under his

own name in the same county and was incarcerated once in that county]; State v. Jenkins,

5th Dist. Stark No. 2009-CA-00150, 2010-Ohio-2719 [record contains insufficient

evidence appellant “purposely” avoided prosecution and contacting his mother on one

occasion does not establish due diligence in executing the warrant]; State v. Eden, 5th
Licking County, Case No. 16-CA-102                                                        10


Dist. Guernsey No. 91-CA-22, 1991 WL 271690, (Nov. 14, 1991) [no reasonable diligence

exercised where no evidence exists appellant purposely avoided prosecution, left state,

or concealed identity or whereabouts to avoid prosecution]; State v. Mahoney, 5th Dist.

Stark No. CA-9316, 1993 WL 405446 (Oct. 4, 1993) [no effort at all made to execute

warrant; case docket shows no activity for three years, in which time no evidence

presented regarding any attempt to serve warrant]; and State v. McGhee, 5th Dist.

Delaware No. 00CA-A-12-040, 2001 WL 704436, *2 (June 20, 2001) [“A twenty-first

century definition of ‘reasonable diligence’ * * * must naturally reflect the advancing

availability of telecommunications and information technology for this task.”].

       {¶30} Appellant further points to undue delay in indicting the drug trafficking

offenses; the 2008 complaint and warrant charged only the tampering offense. “An

unjustified delay between the commission of an offense and a defendant's indictment

therefore, which results in actual prejudice to the defendant, is a violation of the right to

due process of law under Section 16, Article I of the Ohio Constitution and the Fifth and

Fourteenth Amendment to the United States Constitution.” State v. Luck, 15 Ohio St.3d

150, 154, 472 N.E.2d 1097 (1984). Furthermore, any claim of prejudice, such as the death

of a key witness, lost evidence, or faded memories, must be balanced against the other

evidence in the case in order to determine whether the defendant will suffer actual

prejudice at trial. Id. The Ohio Supreme Court held that a delay in the commencement of

prosecution by the state would be found unjustified when it is done in an attempt to gain

a tactical advantage over the defendant, or when the state “through negligence or error

in judgment, effectively ceases the active investigation of a case, but later decides to

commence prosecution upon the same evidence that was available to it at the time that
Licking County, Case No. 16-CA-102                                                        11

its active investigation was ceased.” Luck, supra, 15 Ohio St.3d at 158. The Court also

held that the length of delay would normally be a key factor in this determination. Id.

       {¶31} When a defendant asserts a pre-indictment delay violated his due process

rights, prejudice may not be presumed. United States v. Crouch, 84 F.3d 1497, 1514-

1515 (C.A.5, 1996). The defendant has the burden of demonstrating prejudice. See, e.g.,

United States v. Lawson, 780 F.2d 535, 541-42 (6th Cir.1985). A lengthy delay in

prosecuting the defendant, by itself, does not constitute actual prejudice. The defendant

must demonstrate how the length of the delay has prejudiced his ability to have a fair trial.

United States v. Norris, 501 F.Supp.2d 1092, 1096 (S.D.Oh.2007).

       {¶32} In the instant case, appellant makes no specific argument of actual

prejudice resulting from the 8-year delay between the alleged crimes and the issuance of

the indictment. Appellant does not allege the delay between the alleged incidents and

the indictment was an intentional device on the part of the state to gain a decided tactical

advantage in its prosecution. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455,

30 L.Ed.2d 468 (1971).

       {¶33} Instead, appellant’s argument is premised upon appellee’s negligence in

failing to execute the warrant, which did in fact “effectively cease active investigation of

the case.” See, State v. Jenkins, supra, 5th Dist. Stark No. 2009-CA-00150, 2010-Ohio-

2719, ¶ 65. We must conclude in the instant case the negligence of appellee in executing

the warrant, combined with the 8-year delay in indicting appellant upon the trafficking

offenses, lead us to conclude the 8-year delay is unjustified.

       {¶34} This record provides us with no basis upon which to find justification for the

delay when the state’s attempts at executing the warrant consisted of “sitting down the
Licking County, Case No. 16-CA-102                                                 12


road” three times from one of multiple known addresses. We conclude the trial court’s

finding of reasonable diligence by appellee is not supported by competent, credible

evidence and sustain appellant's sole assignment of error.

                                    CONCLUSION

       {¶35} The judgment of the Licking County Court of Common Pleas is reversed.

Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution and R.C. 2953.07, the

convictions and sentence are vacated, and this case is remanded for proceedings in

accordance with our opinion and the law.

By: Delaney, P.J.,

Hoffman, J. and

Wise, Earle, J., concur.
