[Cite as In re T.G., 2020-Ohio-2764.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


In re T.G.                                       Court of Appeals No. E-19-028

                                                 Trial Court No. 14 JF 97



                                                 DECISION AND JUDGMENT

                                                 Decided: May 1, 2020

                                           *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Kristin R. Palmer, Assistant Prosecuting Attorney, for appellant.

        Danielle C. Kulik, for appellee.

        Sarah A. Hill and Laura Osseck, for amicus curiae S.B.

                                           *****

        SINGER, J.

        {¶ 1} Appellant, state of Ohio, appeals from the April 2, 2019 judgment of the

Erie County Court of Common Pleas, Juvenile Division, granting appellee, T.G.’s,

motion to dismiss the complaint due to delay caused by the state. For the reasons that

follow, we reverse.
      {¶ 2} The state sets forth four assignments of error:

             1. The trial court erred by dismissing the complaint based on finding

      Appellee had a constitutional right to speedy trial for a juvenile

      delinquency.

             2. The trial court erred by dismissing the complaint without first

      finding a specific delay occasioned by Appellant which was presumptively

      prejudicial.

             3. The trial court erred by dismissing the complaint when

      Appellee’s claimed speedy trial right was not violated.

             4. The trial court erred by dismissing the complaint when any error

      from the delay was invited by Appellee.

                              Relevant Background Facts

                                           2013

      {¶ 3} On March 14, 2013, a minor boy with autism (“complaining witness” or

“victim”) along with his mother, reported to police that when he was 11 years old, he was

sexually assaulted by appellee, who was 16 years old at the time.

                                           2014

      {¶ 4} On September 15, 2014, a complaint was filed in the Erie County Court of

Common Pleas, Juvenile Division, charging appellee with rape, in violation of R.C.

2907.02(A)(1)(B), a first-degree felony. The complaint alleged appellee “18 years old




2.
(DOB: 6/12/[19]96), who appear(s) to be a delinquent child[,] * * * on or about the year

2012 to March 14, 2013, * * * forced a[n] 11[-]year old male to have oral sex with him.”

      {¶ 5} Also on September 15, 2014, the juvenile court held a hearing where

appellee, who was represented by counsel, denied the charges. Appellee was ordered

detained. A pretrial was scheduled for September 24, 2014, and an adjudicatory hearing,

if necessary, was scheduled for October 2, 2014.

      {¶ 6} On September 24, 2014, appellee filed a motion for continuance of the

October 2, 2014 adjudicatory hearing.

      {¶ 7} On October 3, 2014, appellee filed a motion in limine to prohibit the

testimony of the complaining witness as well as the testimony of persons to whom the

complaining witness made statements because the complaining witness had shown he did

not know the difference between the truth and a lie.

      {¶ 8} On October 6, 2014, the court scheduled a pretrial conference and hearing

on the motion in limine for October 23, 2014. Also on October 6, 2014, the court

continued the adjudicatory hearing until November 13 and 14, 2014.

      {¶ 9} On October 20, 2014, the state responded to the motion in limine, noting that

under Evid.R. 601, every person over 10 years old and of sound mind is competent, and

the proper procedure to determine the competency of the complaining witness is to hold

an in-camera hearing, pursuant to R.C. 2317.01. In addition, the state observed that

social workers, counselors and the like may testify as to statements made by children,

under Evid.R. 803(4).




3.
       {¶ 10} A pretrial was held on October 23, 2014, and the court rescheduled the

hearing on the motion in limine for November 12, 2014, to be followed by a trial.

       {¶ 11} On November 10, 2014, the state filed a motion in limine requesting that

the complaining witness be permitted to draw while testifying. Also on November 10,

2014, appellee filed a motion for continuance of the November 12, 2014 adjudicatory

hearing.

       {¶ 12} On December 26, 2014, the court filed its judgment entry dated

November 12, 2014, in which it set forth that the state requested a continuance in order to

provide potential questions for guidance on the court’s voir dire regarding the motion in

limine as the complaining witness is autistic; appellee did not object. A hearing on the

motion in limine was scheduled for February 2, 2015, and home detention was ordered

for appellee.

                                           2015

       {¶ 13} On January 27, 2015, the court filed a notice of hearing regarding “an all

day hearing on motion in limine” on February 2, 2015.

       {¶ 14} On January 29, 2015, the state filed supplemental discovery in which it

identified a doctor of psychology it may call as a witness, and noted it provided the

doctor’s curriculum vitae to appellee’s counsel. Also on January 29, 2015, appellee filed

a motion for continuance of the February 2, 2015 hearing because “both parties have just

retained their respective experts and additional time is needed by both parties.”




4.
       {¶ 15} On March 2, 2015, the court filed a notice of hearing in which it scheduled

the following: a pretrial hearing for April 13, 2015; a “hearing on motion in limine” for

April 29, 2015; and a two-day adjudicatory hearing for April 30 and May 1, 2015. Also

on March 2, 2015, the court filed a judgment entry granting appellee’s motion for

continuance of the February 2, 2015 hearing, and rescheduling the hearing for April 29,

2015. The court filed a second judgment entry on March 2, 2015, granting appellee’s

motion for continuance of the November 12, 2014 adjudicatory hearing, and rescheduling

the hearing for April 30 and May 1, 2015.

       {¶ 16} On March 9, 2015, appellee filed a motion to continue the motion in limine

and adjudicatory hearings.

       {¶ 17} On April 7, 2015, the court granted appellee’s motion for continuance and

scheduled a hearing on the motion in limine for June 10, 2015, and a two-day

adjudicatory hearing for June 11 and 12, 2015.

       {¶ 18} On May 18, 2015, the court filed a judgment entry in which it stated “case

pretried – state meet w/ victim this wk. – set pt. thereafter – adj. already set.” The court

scheduled a pretrial hearing for May 29, 2015.

       {¶ 19} On May 28, 2015, the state filed supplemental discovery in which it noted

it had responded fully to appellee’s right to discovery and supplied appellee with a DVD

of the complaining witness’s interview with the psychologist.

       {¶ 20} On June 1, 2015, appellee filed a motion for continuance of the motion in

limine and adjudicatory hearings.




5.
       {¶ 21} On June 29, 2015, the court granted appellee’s motion for continuance and

scheduled a hearing on the motion in limine for July 23, 2015, and a two-day

adjudicatory hearing for August 3 and 4, 2015.

       {¶ 22} On July 20, 2015, appellee filed a motion to dismiss, in which he argued he

was being denied his constitutional right to a speedy trial because he has not received a

report from the state’s expert regarding the complaining witness. Appellee set forth “[o]n

May 29, 2015, the Prosecution advised Counsel that it would provide him with a written

report from the expert retained by the Prosecution to examine the complaining witness.

Now, with less than three days before the Motion in Limine is to be heard and only two

weeks before Trial, Defense Counsel has still not received any such report.” Appellee

continued, “Defense Counsel needs to have this report in time to provide it to his expert

witness and to then obtain a report and advice from his expert. He cannot do so, despite

the fact that this case has now been pending for over ten (10) full months.”

       {¶ 23} On July 23, 2015, the court denied appellee’s motion to dismiss, as the

state supplied the expert’s report to appellee that day. The court vacated the dates for the

motion in limine and adjudicatory hearings, and stated defense “counsel to contact court

to co-ord. scheduling after conferring w/ expert about time needed.”

       {¶ 24} On August 14, 2015, appellee filed a motion for the complaining witness to

submit to an interview and evaluation by appellee’s expert. On August 19, 2015, the

court scheduled a hearing on appellee’s motion for September 10, 2015.




6.
        {¶ 25} On October 21, 2015, appellee filed a motion to require the complaining

witness to submit to a psychological evaluation by an expert chosen by the defense, and if

the complaining continues to refuse to submit to an evaluation, the case should be

dismissed with prejudice.

        {¶ 26} On November 4, 2015, the court filed its judgment entry dated

September 10, 2015, in which it granted appellee’s motion for the complaining witness to

submit to an interview and evaluation by appellee’s expert. The court stated “[c]ounsel

to coordinate eval to occur in Sandusky. Pretrial to be set post eval to set hrg. dates

(trial).”

        {¶ 27} On November 6, 2015, appellee filed a supplement to his motion to require

the complaining witness to submit to a psychological evaluation.

        {¶ 28} On November 12, 2015, the state filed its objection to the court’s ruling, a

motion for reconsideration and a request for the court to appoint a guardian ad litem

(“GAL”) for the complaining witness. The state noted it argued at the September 5, 2015

hearing that there is no jurisdiction for the court or appellee to force the complaining

witness to undergo a psychological evaluation, unless the witness agrees. The state

offered to contact the complaining witness’s mother, and did so, but the mother objected

to the evaluation. The state noted the court set the matter for further hearing on

November 12, 2015, but issued its decision on November 4, 2015, granting the motion

for interview and ordering the complaining witness to submit to an interview.




7.
       {¶ 29} On December 1, 2015, appellee filed an opposition to the state’s objection

and motion for reconsideration and a supplemental memorandum in support of his motion

to dismiss in which he argued he was being denied a fair hearing because the

complaining witness refused to be interviewed or evaluated by appellee’s expert witness.

       {¶ 30} On December 15, 2015, the state filed a motion for extension of time to

respond to appellee’s opposition.

       {¶ 31} On December 18, 2015, the court granted the state’s motion for extension.

       {¶ 32} On December 30, 2015, the state filed a supplemental memorandum and

objection to appellee’s motion to dismiss.

                                             2016

       {¶ 33} On January 8, 2016, appellee filed a supplemental memorandum in

opposition to the state’s objection and motion for reconsideration of the court’s ruling.

       {¶ 34} On March 8, 2016, the court scheduled a hearing on the motion for

evaluation and motion to dismiss for April 18, 2016.

       {¶ 35} On April 21 and 25, 2016, the court filed judgment entries appointing a

GAL for the complaining witness.

       {¶ 36} On May 10, 2016, the court scheduled a hearing for May 18, 2016.

       {¶ 37} On May 13, 2016, the state filed a motion for continuance; the court

granted the motion on May 23, 2016.

       {¶ 38} On June 2, 2016, appellee filed a motion for release from home detention.

The state filed an opposition to the motion on June 8, 2016.




8.
       {¶ 39} On August 1, 2016, the court scheduled a pretrial for August 26, 2016.

       {¶ 40} On October 26, 2016, the court scheduled a further pretrial for

November 2, 2016.

       {¶ 41} On November 4, 2016, the state filed a motion to transfer the case to the

Erie County Court of Common Pleas, General Division, pursuant to Juv.R. 30 and R.C.

2152.10 and 2152.12(D).

       {¶ 42} On November 22, 2016, the court scheduled a probable cause hearing for

December 12, 2016.

       {¶ 43} On December 7, 2016, appellee filed a motion for continuance of the

probable cause hearing.

       {¶ 44} Also on December 7, 2016, appellee filed another motion to dismiss, in

which he asserted his rights to due process and a speedy trial were denied in violation of

Article I, Sections 10 and 16 of the Ohio Constitution and the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution. Appellee detailed several delays he

claims were caused by the state.

       {¶ 45} On December 9, 2016, the court granted appellee’s motion to continue, and

rescheduled the probable cause hearing for January 9, 2017.

                                             2017

       {¶ 46} On January 6, 2017, appellee supplemented his motion to dismiss, arguing

that even if the right to speedy trial does not apply to juveniles, it should apply to




9.
appellee because he was not a juvenile when the charges were filed. Appellee also

reiterated the delays caused by the state are a clear denial of due process.

       {¶ 47} On January 10, 2017, the court continued the January 9, 2017 probable

cause hearing, due to unavailability of witnesses. On January 11, 2017, the probable

cause hearing was rescheduled for March 6, 2017.

       {¶ 48} On January 17, 2017, appellee again supplemented his motion to dismiss

arguing that the state is venue shopping, appellee has not been served with the state’s

motion to transfer, the state has a continuing duty of discovery and must provide the

current address of its potential witnesses, appellee has not invited any error but state’s

witness intentionally violates the court’s order and the right to speedy trial should apply

to appellee because he was 18 years old when the charges were filed.

       {¶ 49} On February 1, 2017, counsel for the complaining witness filed a motion to

vacate the court order for the complaining witness to undergo a psychological evaluation

for competency. Appellee filed an opposition to the motion.

       {¶ 50} On February 2, 2017, the court held a hearing on outstanding motions,

including appellee’s motion in limine to prohibit the testimony of the complaining

witness as well as the testimony of persons to whom the complaining witness made

statements, and requests for evaluation of the complaining witness.

       {¶ 51} At the hearing, the following pertinent information was exchanged.

Counsel for the state offered, “it’s my understanding the Court initially suggested to the

parties that we consult with experts in the hopes that it would be helpful in preparing the




10.
proposed questions for the voir dire that the Court was considering. That was the purpose

of the consultation with the expert witnesses.” The state’s counsel claimed the state’s

expert did not want to provide a report because she “did not want to step on the province

of the Court in the voir dire and just solely gave her opinion to me in assisting of the

drafting of the questions. That report was not provided until the Court and the juvenile’s

counsel requested it.” Counsel for the state argued the report was work product, but the

state voluntarily gave the report to defense counsel to assist him in preparing for voir

dire. The mother of the complaining witness stated she was not aware that the state’s

expert evaluated her son, her son just spoke to the expert.

       {¶ 52} Appellee’s counsel contended in September 2015, at appellee’s request, the

court ordered the prosecuting witness to submit to a psychological examination “[a]nd

now the prosecution and its witness says, ‘Well, I don’t have to do what the Court says.

I’ll do whatever I want.’ Appellee’s counsel asserted in extraordinary circumstances,

such as this, when justice requires, the defense is entitled to have its expert examine the

complaining witness.

       {¶ 53} Counsel for the state countered there are no extraordinary circumstances

here, and regardless of what a defense expert says, “it’s still up to the Court to decide in

voir dire whether or not that witness knows the difference between a truth and a lie * * *

[U]ltimately it’s for the Court to decide whether that witness is competent or not.” With

respect to the proposed questions submitted by the state and appellee, “the case law is




11.
very clear, the Court has broad discretion in conducting voir dire * * * [t]he Court can

take some, all, or none of those questions from either side.”

           {¶ 54} On March 1, 2017, appellee filed a memorandum relative to determining

the competency of the complaining witness.

           {¶ 55} On April 28, 2017, the court filed a judgment entry regarding the hearing

held on February 2, 2017. The court ordered voir dire of the complaining witness to be

held on May 24, 2017. In addition, the court released appellee from house arrest.

           {¶ 56} On May 31, 2017, the court issued a judgment entry with respect to

voir dire of the complaining witness, finding the complaining witness was competent to

testify.

           {¶ 57} On June 6, 2017, the court filed a judgment entry concerning a pretrial held

on June 2, 2017. The court ordered counsel for the parties to file briefs as to the

“ongoing jurisdiction, if any, available to the Court to determine the State’s Motion for

Transfer and/or to adjudicate the complaint.”

           {¶ 58} On June 15, 2017, the state filed its brief in support of its motion to

transfer.

           {¶ 59} On June 21, 2017, appellee filed a motion for extension of time, which the

court granted.

           {¶ 60} On June 27, 2017, appellee filed his brief asserting the case should not be

transferred, but rather, dismissed with prejudice.




12.
                                            2018

       {¶ 61} On July 23, 2018, the complaining witness filed a motion to set a trial date

certain, which included his objections to the substantial delay in prosecuting the case.

                                            2019

       {¶ 62} On March 13, 2019, the complaining witness filed a request for status

conference regarding pending motions.

       {¶ 63} On March 28, 2019, the state filed a motion to schedule status conference.

       {¶ 64} On April 2, 2019, the trial court issued a judgment entry, granting

appellee’s December 7, 2016 motion to dismiss. The court cited to Barker v. Wingo, 407

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and In the Matter of Taylor, 6th Dist.

Wood No. 83-99, 1984 WL 7892 (June 1, 1984). The court found the state had caused

undue delay, appellee had asserted his speedy trial right since early in the case, and

appellee’s constitutional right to speedy trial was violated.

       {¶ 65} The court noted it granted ten continuances, of which there was one joint

request for a continuance, the state requested two and six were requested by appellee.

However, the court found “the problem that complicated and delayed this case was the

issue of the victim’s competence.” The court observed appellee raised the issue of the

complaining witness’s competency early in the case in a motion in limine, seeking to

“exclude any third party testimony concerning the victim’s allegation.” The court noted

“the issue of the victim’s competency and the expert evaluations delayed the case for

over two years.” The court attributed the delay to the state “by obtaining an expert




13.
evaluation of the victim.” The state timely appealed. Briefs were filed, including an

amicus curiae brief filed on behalf of the complaining witness.

                                            Law

       {¶ 66} An accused is guaranteed the constitutional right to a speedy trial under the

Sixth and Fourteenth Amendments of the United States Constitution and Section 10,

Article I of the Ohio Constitution. State v. Blackburn, 118 Ohio St.3d 163, 2008-Ohio-

1823, 887 N.E.2d 319, ¶ 10. Ohio implemented speedy trial statutes, R.C. 2945.71 et

seq., to enforce those constitutional guarantees. Id. However, the Ohio Supreme Court

has decided that the statutory speedy trial provisions of R.C. 2946.71 do not apply to

delinquency proceedings in juvenile court. State ex rel. Williams v. Court of Common

Pleas of Lucas Cty., 42 Ohio St.2d 433, 434-435, 329 N.E.2d 680 (1975). Yet, the issue

of whether the constitutional right to a speedy trial applies in a delinquency proceeding

has not been addressed by the United States Supreme Court or the Ohio Supreme Court.

Matter of Damon R., 6th Dist. Erie No. E-96-055, 1997 WL 90615, *2 (Feb. 28, 1997).

See also State v. B.C.M., 12th Dist. Warren No. CA2016-07-059, 2017-Ohio-1497, ¶ 49.

       {¶ 67} In order to determine whether an accused was denied the right to a speedy

trial, as guaranteed by the Sixth Amendment, the court assesses four factors: (1) the

length of delay; (2) the reason for the delay; (3) the accused’s assertion of the right to

speedy trial; and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct.

2182, 33 L.Ed.2d 101. Prejudice must be assessed in light of the interests that the right to

speedy trial intends to protect which include preventing oppressive pretrial incarceration,




14.
minimizing an accused’s anxiety and concern and limiting the possible impairment of a

defense. Id. at 532. The four factors “must be considered together with such other

circumstances as may be relevant * * * [and the court] must * * * engage in a difficult

and sensitive balancing process.” Id. at 533.

       {¶ 68} “The standard to be applied under the Ohio Constitution is the same as that

applied pursuant to the Sixth Amendment to the United States Constitution. State v. Luck

(1984), 15 Ohio St.3d 150, 153.” Matter of Damon R. at *2. In State v. O’Brien, 34

Ohio St.3d 7, 10, 516 N.E.2d 218 (1987), the court noted “[t]he initial consideration is

that of the specific delay occasioned by the state. ‘Until there is some delay which is

presumptively prejudicial, there is no necessity for inquiry into the other factors that go

into the balance.’ [Barker v. Wingo at 530].” Thus, courts utilize a two-pronged inquiry

when analyzing a claim that the state violated an accused’s constitutional right to speedy

trial. State v. Williams, 10th Dist. Franklin No. 13AP-992, 2014-Ohio-2737, ¶ 11. First,

the accused must make a threshold showing of a presumptively prejudicial delay to

trigger application of the Barker v. Wingo analysis. Id., citing State v. Sellers, 10th Dist.

Franklin No. 08AP-810, 2009-Ohio-2231, ¶ 14 and Doggett v. United States, 505 U.S.

647, 651-652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). If there is a showing of a

presumptively prejudicial delay, the second inquiry requires the court to consider the four

Barker v. Wingo factors. Williams at ¶ 11.




15.
                                    Standard of Review

       {¶ 69} Appellate review of a trial court’s decision regarding a motion to dismiss

an indictment on speedy trial grounds involves a mixed question of fact and law.

Williams at ¶ 9. The appellate court must give due deference to a court’s findings of fact

if they are supported by competent, credible evidence, but the appellate court must

independently review whether the court properly applied the law to the facts of the case.

Id.

                                  Assignments of Error

       {¶ 70} We will address the state’s assigned errors out of order, and we will begin

our examination by considering the second and third assignments of error together.

       {¶ 71} In its second assignment of error, the state contends the trial court erred by

dismissing the complaint without first finding a specific delay occasioned by the state,

which was presumptively prejudicial. The state argues such a finding is necessary in

order to trigger whether the right to a speedy trial was denied. The state notes that courts

have held that a delay becomes presumptively prejudicial as it approaches one year. In

support, the state cites to Doggett at 652, fn. 1. The state asserts the court “considered an

incorrect and arbitrarily-defined period between the initially scheduled trial date and the

date Appellee became twenty-one years of age * * * and summarily found * * * an

‘undue delay.’” The state submits the “court failed to consider what specific delay during

such period was occasioned by [the state], and failed to find any prejudice attached

thereto.” The state observes it only requested two delays and entered into a joint request




16.
for a delay made by appellee, all of which totaled approximately six months. The state

claimed this delay fell short of the Doggett one-year presumptively prejudicial delay.

       {¶ 72} In its third assignment of error, the state claims the court erred by

dismissing the complaint when appellee’s speedy trial right was not denied. The state

argues the court misapplied the Barker v. Wingo factors by not weighing the conduct of

both appellee and the state. Instead, the state contends that the court found it was solely

responsible for the delay due to its evaluation of the complaining witness, even though “a

speedy trial delay is not chargeable to the state when an accused’s request for such delay

is reflected in the transcript. In the transcript, the court states * * * the ‘beginning of this

is your [Appellee’s] motion, that it started with the [m]otion in [l]imine * * * but that

resulted in the motion for the requests for the evaluation.’”

       {¶ 73} The state observes the length of delay between the time the complaint was

filed and dismissed, was about 42 months and 17 days. The state submits it was

responsible for a delay of about six months, which “was not unreasonably long,

compared to the delay caused by Appellee’s [seven] continuances and other motions

[twenty-one], and by the trial court itself.”

                                           Analysis

       {¶ 74} We note at the outset that appellee based his motion to dismiss the

complaint on the denial of his constitutional right to speedy trial under the United States

Constitution and the Ohio Constitution, due to delays caused by the state. Appellee did

not allege a denial of his right to speedy trial under R.C. 2945.71. Likewise, the trial




17.
court based its holding solely on constitutional grounds under Barker v. Wingo, 407 U.S.

514, 92 S.Ct. 2182, 33 L.Ed.2d 101, rather than on statutory grounds. We will limit our

analysis accordingly. In addition, we will assume, without deciding, for purposes of our

analysis, that if a juvenile charged with delinquency has the constitutional right to a

speedy trial, the framework set forth in Barker v. Wingo is the applicable law to use in

order to determine whether or not the right to speedy trial was denied.

                               Trial Court’s Judgment Entry

       {¶ 75} In its entry, the trial court stated “[i]n its’ [sic] analysis, this Court has

considered only the activity occurring in this matter from it’s [sic] inception up to the

point that Youth turned age 21, as there has been delay thereafter in publishing this

opinion.” While the court did not identify its findings by number, for ease of review, we

have assigned numbers to the court’s pertinent findings of fact.

       {¶ 76} First, there was undue delay. The delay from the original trial date of

October 2, 2014, until appellee turned 21 years old in mid-June 2017, was approximately

32 months and was “an undue delay for purposes of determining speedy trial rights.” In

further support of the finding of undue delay, the complaining witness reported the

offense on March 14, 2013, and charges were filed by the state on September 15, 2014,

which was a delay of 18 months.

       {¶ 77} Second, the reasons for the delay. The court granted ten continuances,

appellee requested six, that state requested two and there was one joint request, and “the

problem that complicated and delayed this case was the issue of the victim’s competence.




18.
Youth filed a Motion in Limine on October 3, 2014. * * * On January 25, 2016, Youth

filed a Motion to Continue * * * based on the fact that each side had just retained experts.

The State indicated it had the victim evaluated but did not receive a written report. A

written report * * * was not obtained and supplied to Youth’s counsel until July 23, 2015,

a delay of six months. On August 14, 2015, youth filed a motion requesting to have his

own expert evaluate the victim.” The court held a hearing on September 10, 2015, and as

a result of the hearing, granted appellee’s motion “and the State agreed to co-ordinate

with defense counsel on making arrangements for the evaluation.” Mother refused to

cooperate. “All tolled, the issue of the victim’s competency and the expert evaluations

delayed the case for * * * 25 months.”

       {¶ 78} Further, “[t]he Court has scheduled each event in a timely manner but the

accumulation of those events and the Court’s granting of every continuance request

contributed to the delay.” However, “when considering the reasons for the delay,

Youth’s counsel’s unavailability for three of the hearings is outweighed by the issue the

State created by obtaining it’s [sic] expert evaluation of the victim without coordinating

with Youth’s counsel or without seeking an order from the Court related thereto.”

       {¶ 79} Third, “Youth has asserted his right to speedy trial consistently throughout

this case. * * * The first Motion [was] filed July 20, 2015. * * * Youth filed his second

Motion to dismiss on speedy trial grounds on December 7, 2106.”

       {¶ 80} Fourth, “Youth has been prejudiced by his extended loss of freedom during

the delayed proceedings and the potential of facing penalties in the adult system which




19.
were not requested or apparent at the time of filing of this matter.” Thus, the court

“found additional prejudice occurred when the State filed the Motion to Transfer

jurisdiction to adult court.” The court noted “Youth was arrested shortly after the

complaint was filed on September 15, 2014 and remained in detention until

November 12, 2014, some 60 days. Youth * * * was placed on electronically monitored

house arrest * * * until April 28, 2017 * * * some 880 days.” The court stated “Youth

turned age 21 * * * at which time this Court lost jurisdiction to dispose of the matter per

R.C. 2151.38. In response to this statutory provision, the State filed a Motion to Transfer

the case for prosecution as an adult despite the fact that the case had been pending for

over three years.”

       {¶ 81} Finally, “the court finds the case has been unnecessarily delayed. The

Court believes that the State and the Court, ultimately failed to take the steps necessary to

resolve the pretrial issues created by the State’s evaluation of the victim in a reasonable

timeframe.” Thus, “the Court concludes that Youth’s Constitutional Right to Speedy

Trial has been violated. Having so concluded, Youth’s Motion to Dismiss is granted and

the charges dismissed. As a last note, there are several Motions pending before the

Court, including the State’s Motion to Transfer * * *. It is found that all other pending

matters are rendered moot. ”

                                        Conclusions

       {¶ 82} Upon review, we conclude the trial court’s first finding, that undue delay

occurred, is supported by competent, credible evidence. However, we conclude the court




20.
did not properly apply the law to the facts. The court did not find that appellee showed a

specific delay was caused by the state, which delay was presumptively prejudicial to

appellee. “The initial consideration is that of the specific delay occasioned by the state.

‘Until there is some delay which is presumptively prejudicial, there is no necessity for

inquiry into the other factors that go into the balance.’” O’Brien, 34 Ohio St.3d at 10,

516 N.E.2d 218, quoting Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182, 33 L.Ed.2d

101. Since the court did not find appellee showed a specific delay occasioned by the

state which was presumptively prejudicial, the inquiry into the four Barker v. Wingo

factors is not necessary. See O’Brien at 10; Williams, 10th Dist. Franklin No. 13AP-992,

2014-Ohio-2737 at ¶ 11. Nevertheless, we will conduct a brief examination of the court’s

other findings.

       {¶ 83} As to the trial court’s second finding of fact, we conclude this finding is not

supported by competent, credible evidence. We conclude: the issue of the complaining

witness’s competency and the expert evaluations did not delay the case for over two

years; appellee’s counsel’s unavailability for three of the hearings is not outweighed by

the issue caused by the state in obtaining an expert evaluation of the complaining witness

without coordinating with appellee’s counsel or the court; and the court did not schedule

each event in a timely manner.

       {¶ 84} While the record shows the issue raised by appellee concerning the

complaining witness’s competency caused some delay, there is no credible, competent

evidence that the expert evaluations delayed the case because the complaining witness




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was not evaluated by experts. Rather, the record establishes the complaining witness was

interviewed by the state’s expert so the expert could assist in the preparation of proposed

questions for voir dire that the court was considering, and the proposed questions could

have been used or disregarded by the court.

       {¶ 85} Since the second finding is unsupported by the facts, there is no need to

analyze whether the court properly applied the facts to the law.

       {¶ 86} As to the court’s third finding of fact, that appellee consistently asserted the

right to speedy trial, we conclude this finding is supported by competent, credible

evidence. But, since we did not decide that a juvenile has the constitutional right to a

speedy trial, we will not analyze whether the court properly applied the facts to the law.

       {¶ 87} With respect to the court’s fourth finding that “Youth has been prejudiced

by his extended loss of freedom during the delayed proceedings,” we conclude there is

competent, credible evidence in the record to support this finding, but there is no

evidence of serious prejudice. See Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182, 33

L.Ed.2d 101. Regarding the court’s finding that “additional prejudice occurred [to

appellee] when the State filed the Motion to Transfer jurisdiction to adult court,” we

conclude this finding is not supported by competent, credible evidence.

       {¶ 88} In light of the foregoing, we conclude the trial court erred in granting

appellee’s September 7, 2016 motion to dismiss on speedy trial grounds, based on delay

caused by the state. Accordingly, appellant’s second and third assignments of error are

well-taken. Our ruling renders the state’s remaining assignments of error moot.




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       {¶ 89} The judgment of the Erie County Court of Common Pleas, Juvenile

Division, is reversed. This matter is remanded to the trial court for proceedings

consistent with this decision. Appellee is ordered to pay costs of this appeal pursuant to

App.R. 24.


                                                                        Judgment reversed
                                                                           and remanded.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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