[Cite as State v. Cumberland, 2014-Ohio-185.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :
                                                                     Case Nos. 13CA8, 13CA9
        vs.                                          :
                                                                     DECISION AND
TONY CUMBERLAND,                                     :               JUDGMENT ENTRY

        Defendant-Appellant.                         :               RELEASED 01/15/2014


                                            APPEARANCES:

Timothy Young, Ohio State Public Defender, and Valerie Kunze, Assistant State Public
Defender, Columbus, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for Appellee.



Hoover, J.


        {¶ 1} This is an appeal from the Highland County Common Pleas Court, in which

appellant Tony Cumberland pled no contest to, and was found guilty of, sexual battery, a third-

degree felony, in violation of R.C. 2907.03(A)(1). Cumberland contends that the trial court

violated his due process rights when it denied his motion to dismiss his indictment due to

unjustified pre-indictment delay. Because Cumberland failed to demonstrate actual prejudice as

a result of the delay, the trial court acted properly in denying his motion. Accordingly, we find

Cumberland’s argument to be without merit and affirm the judgment of the trial court.

        {¶ 2} A review of the record reveals the following facts pertinent to this appeal.

        {¶ 3} In May 1995, an unidentified male sexually assaulted Lisa Ann Early near

Hillsboro, Ohio. The Highland County Sheriff’s Department investigated the case and collected
Highland App. Nos. 13CA8, 13CA9                                                                    2


items of Ms. Early’s clothing and also a rape kit that was completed at the Highland District

Hospital. The rape kit and clothing were sent to the Bureau of Criminal Identification and

Investigation (“BCI&I”) in June 1995. Cumberland, meanwhile, was convicted of rape and

burglary in an unrelated 2001 incident. A DNA sample was obtained from Cumberland by the

Hillsboro Police Department and submitted to BCI&I for placement in the CODIS system for

future comparisons.

        {¶ 4} In March 2003, BCI&I sent a report to the sheriff’s department indicating a DNA

match between the specimens found in the rape kit with the Cumberland sample from the CODIS

database.

        {¶ 5} The case was reopened by the sheriff’s department; but years passed with no

indictment. Then, in 2012 the sheriff’s department again renewed its investigation.

        {¶ 6} An indictment was eventually filed against appellant in November 2012, charging

Cumberland with one count of rape in violation of R.C. 2907.02(A)(2), for the 1995 incident.

        {¶ 7}   Cumberland moved the trial court to dismiss the indictment for lack of timely

prosecution and pre-indictment delay. A hearing was held on January 16, 2013, on the issue of

pre-indictment delay. At the hearing, Denny Kirk testified that he worked as a detective for the

sheriff’s department in 2003. Kirk reviewed the 2003 report from the BCI&I crime lab

indicating the DNA match. At that time, Kirk located Ms. Early, spoke with her on the

telephone, and created a case file. Kirk testified that Ms. Early was interested in pursuing charges

at that time.

        {¶ 8}   Kirk further testified that he was aware that Cumberland was already in prison

for the 2001 convictions and due to a large caseload and personnel cutbacks the case was “put on

the backburner” due to higher priority cases that he was investigating. When Kirk left to attend
Highland App. Nos. 13CA8, 13CA9                                                                      3


law school and took educational leave from the department, he cleaned out his files and located

the case file. Upon locating the file in May 2012, he presented the file to Detective Dan Croy.

       {¶ 9}    Sheriff Ronald D. Ward testified that a letter about the case and the BCI&I report

were sent to the Highland County Prosecutor’s Office on April 28, 2003. The letter was sent via

fax; and the letter and fax confirmation were presented at the hearing. Ward did not recall the

response from the prosecutor’s office in 2003.

       {¶ 10} Detective Dan Croy discussed the evidence obtained on May 29, 1995. He

testified to the collection of the victim’s clothing, and to the completion of the rape kit. Croy

testified that Deputy Donnie Walker, since deceased, placed the rape kit and clothing in the

evidence room at the sheriff’s department until it was delivered to BCI&I.

       {¶ 11} It was further established at the hearing that the state still had the original rape kit

and could make the contents available to Cumberland for independent DNA testing. In fact, the

trial court provided Cumberland with a DNA expert to review the BCI&I report and to perform

independent testing.

       {¶ 12} Following the presentation of evidence at the January 16, 2013 hearing, the trial

court noted that Cumberland had yet to show actual prejudice as a result of the pre-indictment

delay. The trial court, however, left the record open, and continued the hearing to allow

Cumberland to present additional evidence.

       {¶ 13} On March 20, 2013, Cumberland renewed his motion to dismiss with additional

information regarding Ms. Early’s medical records. A hearing was held on the renewed motion

on March 22, 2013. At the hearing, the state stipulated that the medical records of the victim

were destroyed in 2005 pursuant to the hospital’s records retention policy. Cathy Jones testified

that she was an emergency room nurse at the Highland District Hospital during the time of the
Highland App. Nos. 13CA8, 13CA9                                                                      4


1995 incident. She further testified that records involving emergency room patients typically

included patient demographics, nursing care notes, assessment notes, vital sign information,

physician notes, and the results of any in-house laboratory tests.

       {¶ 14} At the conclusion of the hearing, the trial court denied Cumberland’s motion to

dismiss. This decision was reflected in a journal entry filed by the trial court on March 25, 2013.

The trial court concluded that while the delay from receipt of the DNA match in 2003 until the

indictment in November 2012 was not justified, Cumberland had nonetheless failed to

demonstrate actual prejudice as a result of the delay.

       {¶ 15} Cumberland subsequently entered into a plea agreement with the state, wherein

he agreed to enter a plea of no contest to the lesser-included offense of sexual battery, a third-

degree felony in violation of R.C. 2907.03(A)(1). A change in plea hearing was held and the

trial court accepted his plea of no contest.

       {¶ 16} Cumberland was ultimately sentenced to thirty (30) months in prison. He filed a

timely notice of appeal from his original entry of confinement and his appeal was assigned case

number 13CA8. However, after receiving a telephone call from the Department of

Rehabilitation and Corrections, the trial court returned Cumberland for a resentencing hearing.

At the resentencing hearing, the trial court made findings regarding physical harm related to the

offense and resentenced Cumberland to thirty (30) months in prison. Cumberland filed a timely

notice of appeal from the amended entry and the appeal was assigned case number 13CA9. We

sua sponte consolidated cases 13CA8 and 13CA9.

       {¶ 17} Cumberland presents the following assignment of error for our review:

Assignment of Error:
Highland App. Nos. 13CA8, 13CA9                                                                        5


       Tony Cumberland was denied his right to due process when the trial court failed

       to dismiss the indictment that was prosecuted after an unjustified nine-year pre-

       indictment delay. Fifth and Fourteenth Amendments, United States Constitution;

       Section 16 Article I, Ohio Constitution; State v. Luck, 15 Ohio St.3d 150, 473

       N.E.2d 1097 (1984); March 25, 2013 Decision.


       {¶ 18} In his sole assignment of error, Cumberland contends that the trial court should

have granted his motion to dismiss the indictment. He contends that the nine-year delay between

the DNA match and the indictment violated his constitutional due process rights. Under this

assignment of error, Cumberland makes two separate arguments. First, he argues that the delay

prejudiced him because the deputy who handled the rape kit evidence in 1995, Donnie Walker,

has since passed away. Cumberland argues that because of the death of Walker, he was

precluded from disputing the integrity of the DNA evidence that implicated him in the first place.

Second, Cumberland contends that he was prejudiced by the destruction of the medical records

because the medical records had the victim’s same-day account of the 1995 incident. Without

the records, Cumberland argues that he has no access to evidence of the incident outside of that

collected by law enforcement.

       {¶ 19} “It is well settled that the right to a speedy trial does not arise until a person has

been ‘accused’ of a crime.” State v. Lewis, 4th Dist. Athens No. 00CA10, 2001 WL 803818, *2

(Mar. 27, 2001), citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468

(1971). “ ‘[W]here the defendant is not subjected to any official prosecution a delay between the

offense in question and commencement of prosecution does not violate the speedy trial guarantee

contained in Section 10, Article I of the Ohio Constitution.’ ” Id., quoting State v. Doksa, 113

Ohio App.3d 277, 280, 680 N.E.2d 1043 (8th Dist.1996).
Highland App. Nos. 13CA8, 13CA9                                                                    6


       {¶ 20} “However, a delay in commencing prosecution, even when there has been no

official accusation, may violate a defendant’s due process rights.” State v. Hahn, 4th Dist.

Washington No. 02CA22, 2003-Ohio-788, ¶ 8, citing United States v. Lavasco, 431 U.S. 783,

789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), and State v. Luck, 15 Ohio St.3d 150, 153-54, 472

N.E.2d 1097 (1984). “To make this [due process] determination, the United States Supreme

Court set out a test in Marion, 404 U.S. at 307, 92 S.Ct. at 455, and Lovasco, 431 U.S. at 783, 97

S.Ct. at 2044.” Lewis at *2.

       {¶ 21} “The Marion-Lovasco test was subsequently adopted by the Supreme Court of

Ohio in State v. Luck (1984), 15 Ohio St.3d 150, 472 N.E.2d 1097.” Id. The test, as set forth in

Luck, is as follows:

       The defendant first has the burden of producing evidence to demonstrate that the

       delay caused actual prejudice to his defense. See Luck, 15 Ohio St.3d at 157-58,

       472 N.E.2d at 1104-05. That being shown, the burden then shifts to the state to

       produce evidence of a justifiable reason for the delay. See Luck, 15 Ohio St.3d at

       158, 472 N.E.2d at 1105. The court is then to view the prejudice suffered by the

       defendant in light of the state’s reason for the delay. See Luck, 15 Ohio St.3d at

       154, 472 N.E.2d at 1102.

Id.

       {¶ 22} In order for a defendant to prove actual prejudice, he “ ‘most show, by concrete

proof, the exculpatory value of any alleged missing evidence.’ ” State v. Roberts, 6th Dist.

Lucas No. L-11-1159, 2013-Ohio-1089, ¶ 19, quoting State v. Zimbeck, 195 Ohio App.3d 729,

2011-Ohio-2171, 961 N.E.2d 1141, ¶ 21 (6th Dist.); see also State v. Flickinger, 4th Dist. Athens

No. 98CA09, 1999 WL 34854, *5 (Jan. 19, 1999) (“[A] defendant must provide concrete proof
Highland App. Nos. 13CA8, 13CA9                                                                        7


that he will suffer actual prejudice at trial as a result of the government’s delay in indicting the

defendant.”). Further, the alleged prejudice should not be speculative, and the court “ ‘must

balance the claimed prejudice against the remaining evidence in the case, including any newly

discovered evidence, to determine whether the missing evidence would have minimized or

eliminated the impact of the state’s evidence.’ ” Roberts at ¶ 19, quoting Zimbeck at ¶ 58.

         {¶ 23} “Reviewing a trial court’s decision on a motion to dismiss an indictment based

upon a pre-indictment delay presents a mixed question of fact and law.” Hahn, 2003-Ohio-788,

at ¶ 9. “Thus, a reviewing court must accord due deference to the trial court’s findings of fact,

but may freely review the trial court’s application of the law to the facts.” Id., citing State v.

Metz, 4th Dist. Washington No. 96CA48, 1998 WL 199944 (Apr. 21, 1998.)

         {¶ 24} Cumberland contends that the death of Deputy Donnie Walker, “casts a shadow

of doubt” upon the integrity of the rape kit because Walker was the person responsible for

collecting, cataloguing, and storing the rape kit upon completion by the Highland District

Hospital. In other words, Cumberland argues that he cannot establish whether the rape kit was

ever altered or tampered with without questioning Walker, an impossible task given Walker’s

death.

         {¶ 25} To establish that he has been actually prejudiced by the inability to question

Walker regarding the handling of the rape kit, Cumberland must show by concrete proof the

exculpatory value of the unavailable witness. Mere speculation will not suffice. We find that

because no evidence was presented below indicating a break in the chain in custody, the

possibility that Walker’s testimony could have established that the rape kit was tampered with, or

altered is speculative at best. We note that in the hearings below, Cumberland did not produce a

witness or other evidence to establish a break in the chain of custody, or to otherwise call into
Highland App. Nos. 13CA8, 13CA9                                                                      8


question the integrity of the rape kit. Accordingly, Cumberland has not established the

exculpatory value of the unavailable witness.

       {¶ 26} Furthermore, in deciding whether the prejudice that is established by a defendant

constitutes “actual prejudice,” we must balance the claimed prejudice against the remaining

evidence in the case, to determine whether the missing evidence would have minimized or

eliminated the impact of the state’s evidence. At the first hearing on the motion to dismiss, the

cover sheet of the rape kit was admitted as an exhibit. The cover sheet clearly named the nurse

and physician who conducted the examination of the victim and procured the rape kit evidence.

The cover sheet also indicates that Deputy Walker retrieved the rape kit evidence at 4:00 a.m. on

May 29, 1995. The cover sheet contains the signatures of the attending physician, the attending

nurse, and Deputy Walker. Moreover, Detective Croy testified that Walker placed the rape kit in

the department’s evidence room until it was delivered to BCI&I. Finally, the record contains an

“Evidence Submission Sheet,” which indicates that the rape kit was submitted by the Highland

County Sheriff’s Office and received in the laboratory at the BCI&I on June 1, 1995. In the

instant case, we do not find that the prejudice alleged by Cumberland as a result of his inability

to question Walker, when balanced against the remaining evidence in the record, rises to the

level of actual prejudice. There is simply no way of knowing whether Walker’s testimony would

have corroborated the state’s evidence, or conversely, minimized its impact.

       {¶ 27} Cumberland also argues that his defense was prejudiced by the destruction of the

victim’s medical records. In particular, he argues that “[i]t cannot be said that the records would

not have put into question relevant aspects of the May 1995 incident, and thus [he] was

prejudiced by the destruction of records.” [Brief at 6-7.] Unfortunately for Cumberland,

however, it also cannot be said that the records would not have corroborated the state’s evidence
Highland App. Nos. 13CA8, 13CA9                                                                   9


in the case. Put another way, it is impossible to know whether the records were of inculpatory or

exculpatory value. “[W]here the alleged missing evidence could be equally inculpatory, the

defendant has not met his burden.” Zimbeck, 195 Ohio App.3d 729, 2011-Ohio-2171, 961

N.E.2d 1141, at ¶ 57, citing State v. Gulley, 12th Dist. Clinton No. CA99-02-004, 1999 WL

1238427 (Dec. 20, 1999).

       {¶ 28} We find that Cumberland has failed to establish a violation of his due process

rights. Cumberland has not shown that the pre-indictment delay caused him actual prejudice;

rather, his arguments are speculative in nature. Having determined that Cumberland failed to

prove actual prejudice, it is not necessary to determine whether there were justifiable reasons for

the delay.

       {¶ 29} Accordingly, Cumberland’s sole assignment of error is overruled, and the

judgment of the trial court is affirmed.

                                                                       JUDGMENT AFFIRMED.
Highland App. Nos. 13CA8, 13CA9                                                                  10


                                      JUDGMENT ENTRY


         It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Highland County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J. and McFarland, J: Concur in Judgment and Opinion.


                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
