[Cite as State v. Hines, 2019-Ohio-5039.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,
                                                          CASE NO. 9-19-07
       PLAINTIFF-APPELLANT,

        v.

HERBERT HINES,                                            OPINION

       DEFENDANT-APPELLEE.



                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 18-CR-0347

                                      Judgment Affirmed

                           Date of Decision: December 9, 2019



APPEARANCES:

        William J. Owen and Margaret S. Moore for Appellant

        Brian G. Jones and Elizabeth E. Osorio for Appellee
Case No. 9-19-07


WILLAMOWSKI, J.

       {¶1} The State of Ohio, as plaintiff-appellant (“the appellant”), appeals the

judgment of the Marion County Court of Common Pleas, alleging that the trial court

abused its discretion in finding that the ability of the defendant-appellee, Herbert

Hines (“Hines”) to defend himself was substantially prejudiced by a preindictment

delay of six years. For the reasons set forth below, the judgment of the trial court is

affirmed.

                           Facts and Procedural History

       {¶2} On April 25, 2012, Marion County Children Services (“MCCS”)

reported to the Marion County Sheriff’s Office (“Sheriff’s Office”) that Hines was

alleged to have committed several sex crimes. Doc. 73. October 19, 2018 Tr. 62.

The police began an investigation into these allegations. On April 27, 2012, Hines’s

residence was searched, and three pornographic DVDs, a cell phone, and two

laptops were seized by the police. October 19, 2018 Tr. 16, 24. On June 29, 2012,

this seized property was sent to the Ohio Bureau of Criminal Investigation (“BCI”).

Id. at 24. On December 13, 2012, BCI determined that these items did not have

evidentiary value for the prosecution. Doc. 73.

       {¶3} During this process, the police discovered evidence of another alleged

offense. August 9, 2018 Tr. 15. This offense was distinct from the alleged offenses

that MCCS reported to the Sheriff’s Office on April 25, 2012. Id. at 14. The victim

of this alleged offense was Hines’s wife. Id. at 14-15. In 2012, Hines was charged

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with the offense of unlawful sexual conduct with a minor.1 Id. at 14. October 19,

2018 Tr. 62. This charge was subsequently dismissed in 2013. August 9, 2018 Tr.

14. However, at that time, the Marion County Prosecutor’s office did not charge

Hines with the offenses that are the subject of this appeal even though the prosecutor

was aware of these allegations. Id.

         {¶4} On November 14, 2013, Hines’s counsel filed a motion that requested

his property be returned. Doc. 73. On January 3, 2014, BCI returned the seized

items to the Marion County Sheriff’s Office. Doc. 73. On February 19, 2014, the

trial court granted Hines’s motion to return the seized property without any

opposition from the State. Doc. 73. The record indicates that, on March 20, 2014,

Hines received at least one laptop,2 a cell phone, and three pornographic DVDs.

Doc. 73. The trial court stated, in its judgment entry that “[t]he investigation was

apparently closed in 2013 or early 2014, without charges being filed.” Doc. 73.

         {¶5} In 2015 or 2016, the former Marion County Prosecutor, Brent Yeager

(“Yeager”), had a meeting with the families of two of the alleged victims. Doc. 36,

73.     However, the content of the conversations in these meetings was not

documented. Doc. 73. Subsequently, Yeager passed away in October of 2017. Doc.



1
  During the course of investigating the accusations that form the basis of the charges at issue in this case,
the police interrogated Hines and discovered that he and his wife “got together * * * while they were both
still in high school.” August 9, 2018 Tr. 15. His wife was “14 years, 5 months old at the time.” Id. at 16.
The issue, from the record, appears to be whether Hines was, at that time, “reckless as to age” in his
involvement with his future wife. Id.
2
  The record indicates that BCI handed an HP laptop and a Gateway laptop to Hines. However, Hines disputes
receiving two laptops. He states that he only received the Gateway laptop.

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36. August 9, 2018 Tr. 16-17. After the current prosecutor assumed office, an

additional review of this case was performed in 2017. Doc. 73. This review process

led to a decision to file charges against Hines in 2018, which was over six years

after the State first became aware of the accusations against Hines. Doc. 73.

       {¶6} On July 11, 2018, Hines was indicted on five counts of rape in violation

of R.C. 2907.02(A)(1)(b); one count of pandering sexually oriented material

involving a minor in violation of R.C. 2907.322(A)(1); one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4); and one count of disseminating

matter harmful to juveniles in violation of R.C. 2907.31(A)(3)(d). Doc. 1. The

indictment alleged that these offenses had been committed in between November 1,

2008 and October 31, 2011. Doc. 1. The count of pandering sexually oriented

material and the count of disseminating matter harmful to juveniles were dismissed

on October 19, 2018 because these charges were filed after the applicable statute of

limitations had run for these crimes. Doc. 44.

       {¶7} On September 28, 2018, Hines filed a motion to dismiss for

preindictment delay. Doc. 23. On October 18, 2018, the State filed a memorandum

in opposition to the defendant’s motion for dismissal. Doc. 36. On October 19,

2018, the trial court held a hearing on the defendant’s motion. October 19, 2018 Tr.

1. This hearing was continued to December 6, 2018 and then to December 28, 2018.

At these hearings, Hines testified about the items that were seized from his house

pursuant to a search of the premises. October 19, 2018 Tr. 29. The trial court also

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heard testimony from Larry Yoder (“Yoder”), who is an evidence officer for Marion

County; Lieutenant Jason Dutton (“Lieutenant Dutton”), who was the primary

investigating officer in Hines’s case; and Carrie Grogan, who was the placement

supervisor at Marion County Children Services.                           October 19, 2018 Tr. 7-8;

December 28, 2018 Tr. 16, 18, 94.

           {¶8} On December 31, 2018, the trial court issued its judgment entry

deciding this matter. Doc. 73. The trial court found that the documentation in this

case was “weak,” making a determination as to what evidence had been collected

during the course of the investigation difficult to state definitively. Doc. 73. The

trial court noted that Lieutenant Dutton testified “that certain items of evidence

should be in the possession of * * * Yoder” but “Yoder testified that the items did

not exist.” Doc. 73. There was also little documentation regarding the review of

the electronic devices that had been seized from Hines. Doc. 73.

           {¶9} However, the trial court was able to determine that Hines had

established that a number of pieces of evidence were missing or otherwise

unavailable.3 Doc. 73. The trial court found that

           [a]ll of the missing items of evidence are material to this case and
           are items which the Defendant was entitled to receive as part of
           discovery. The prosecution appears to have made little to no
           effort to investigate what has happened with regard to any of the
           missing items. Nearly all of the evidence which was developed at
           the hearing as to what items exist or don’t exist was due to
           subpoenas duces tecum issued by the Defendant.

3
    The missing or otherwise unavailable pieces of evidence are detailed in our legal analysis below.

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Doc. 73. After considering the facts and testimony gleaned through three hearings

on this motion, the trial court found that

       [h]ad this case been prosecuted years earlier when the
       investigation was completed and before evidence was disposed of,
       it is reasonable to believe that all or most of the evidence would
       exist. Moreover, it would be more possible for the memories of
       witnesses to fill in any gaps. That is no longer the case. For these
       reasons, this Court finds that the Defendant has met his difficult
       burden of establishing substantial prejudice, caused by the delay
       in prosecution.

Doc. 73. The trial court then found that the State had not presented a reason that

justified this preindictment delay and granted Hines’s motion to dismiss. Doc. 73.

                                Assignment of Error

       {¶10} The State filed its notice of appeal on January 30, 2019. Doc. 75. The

appellant raises the following assignment of error:

       The trial court abused its discretion by dismissing the case upon
       finding appellee was substantially prejudiced by preindictment
       delay.

The State asserts that the trial court erred in dismissing the indictment, arguing that

Hines did not demonstrate actual prejudice from the preindictment delay.

                                   Legal Standard

       {¶11} “[T]he twofold aim of [the law] is that guilt shall not escape or

innocence suffer.” State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13

N.E.3d 1051, ¶ 108. The Sixth Amendment to the United States Constitution



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guarantees a speedy trial to a person who has been accused of a crime. State v.

Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 11.

       But on its face, the Sixth Amendment provides no protection to
       those who have not yet been accused; it does not ‘require the
       Government to discover, investigate, and accuse any person
       within any particular period of time.’ United States v. Marion, 404
       U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). * * * But when
       unjustifiable preindictment delay causes actual prejudice to a
       defendant’s right to a fair trial despite the state’s initiation of
       prosecution within the statutorily defined limitations period, the
       Due Process Clause affords the defendant additional protection.

Id. “[P]reindictment delay violates due process only when it is unjustifiable and

causes actual prejudice * * *.” Id. at ¶ 12, citing State v. Luck, 15 Ohio St.3d 150,

472 N.E.2d 1097 (1984), paragraph two of the syllabus. “Courts apply a two-part

test to determine whether preindictment delay constitutes a due process violation.”

State v. Dixon, 2015-Ohio-3144, 40 N.E.3d 601, ¶ 19 (8th Dist.).

       {¶12} First, the defendant bears the initial burden to “produce evidence

demonstrating that the delay has caused actual prejudice to his [or her] defense.”

State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199, 1201 (1998). “Actual

prejudice exists when missing evidence or unavailable testimony, identified by the

defendant and relevant to the defense, would minimize or eliminate the impact of

the state’s evidence and bolster the defense.” Jones, supra, at ¶ 28. “The proof of

actual prejudice must be specific, particularized and non-speculative.” State v.

Strickner, 10th Dist. Franklin No. 03AP-746, 2004-Ohio-3557, ¶ 36.



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       {¶13} “[T]he proven unavailability of specific evidence or testimony that

would attack the credibility or weight of the state’s evidence against a defendant

and thereby aid in establishing a defense may satisfy the due-process requirement

of actual prejudice.” Jones, supra, at ¶ 25. However, “the possibility that memories

will fade, witnesses will become inaccessible, or evidence will be lost is not

sufficient to establish actual prejudice.” State v. Adams, 144 Ohio St.3d 429, 2015-

Ohio-3954, 45 N.E.3d 127, ¶ 103. In examining the alleged actual prejudice, courts

consider “the particular evidence that was lost or unavailable as a result of the delay

and, in particular, consider[] the relevance of the lost evidence and its purported

effect on the defense.” Jones, supra, at ¶ 23. “The determination of ‘actual

prejudice’ involves ‘a delicate judgment based on the circumstances of each case.’”

State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 51, quoting

Marion, supra, at 325.

       {¶14} “A court must ‘consider the evidence as it exists when the indictment

is filed and the prejudice the defendant will suffer at trial due to the delay.’” Jones,

supra, at ¶ 20, quoting Walls at ¶ 52. “The key is determining whether actual

prejudice resulted from the delay.” State v. Dodson, 2012-Ohio-5576, 983 N.E.2d

797 (3d Dist.). “The burden upon a defendant seeking to prove that preindictment

delay violated due process is ‘nearly insurmountable’ * * *.” Adams at ¶ 100,

quoting United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir. 2012).



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       {¶15} Second, if the defendant carries the burden of establishing actual

prejudice, the State then “bears the burden of producing evidence of a justifiable

reason for the delay.” Whiting, supra, 217. The State, however, has no duty to

justify a preindictment delay if the defendant does not carry his or her initial burden

of demonstrating actual prejudice. Jones, supra, at ¶ 16.

       [D]elay in the commencement of prosecution can be found to be
       unjustifiable when the state’s reason for the delay is to
       intentionally gain a tactical advantage over the defendant, see
       United States v. Marion, supra, 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 its
       active investigation was ceased. The length of delay will normally
       be the key factor in determining whether a delay caused by
       negligence or error in judgment is justifiable.

Luck, supra, at 158.

       {¶16} “On appeal, a trial court’s decision on a motion to dismiss for

preindictment delay is reviewed de novo as to the legal issues, but the court’s

findings of fact are afforded great deference.” State v. Powell, 2016-Ohio-1220, 61

N.E.3d 789, ¶ 11 (8th Dist.). State v. Buis, 2018-Ohio-1727, 111 N.E.3d 854, ¶ 10

(2d Dist.); State v. Cochenour, 4th Dist. Ross No. 98CA2440, 1999 WL 152127, *1

(Mar. 8, 1999); State v. Ricosky, 5th Dist. Stark No. 2003CA00174, 2004-Ohio-

2091, ¶ 13; State v. Adkins, 2018-Ohio-2588, 115 N.E.3d 887, ¶ 11 (6th Dist.); State

v. Winkle, 7th Dist. Mahoning No. 12 MA 162, 2014-Ohio-895, ¶ 23. See also State

v. Burrell, 11th Dist. Portage No. 1948, 1989 WL 42980, *5 (Apr. 28, 1989)


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(holding that “[o]nce the court made the factual determination that prejudice existed

and that no justifiable reason existed for the delay, the dismissal became a matter of

law.”).

                                     Legal Analysis

          {¶17} In this case, there was a preindictment delay of roughly six years.

Hines argues that material evidence was not preserved during this period of time

and cannot now be evaluated. At one of the hearings on this motion, Hines argued

that the former prosecutor did have all of the relevant information that had been

collected during the course of the police investigation and that, on the basis of all of

this available evidence, the former prosecutor chose not to seek an indictment

against Hines. October 19, 2018 Tr. 62. Hines pointed to the fact that, under the

former prosecutor, he had only been indicted for unlawful sexual conduct with a

minor when the Marion County Prosecutor’s Office was fully aware that he was

alleged to have raped a minor. Id.

          {¶18} Hines then argued that the prosecutor’s office did not seek charges on

the allegations disclosed by MCCS based upon the evidence available to the State

at that time. Id. However, Hines noted that only some of the information that led

the former prosecutor to not seek charges against him was still available. Id. Hines

alleged that this preindictment delay resulted in the loss of exculpatory evidentiary

materials and caused actual prejudice to his present ability to mount a defense

against these charges.

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       {¶19} Hines compiled a list of the evidentiary items that were missing or

currently unavailable. In particular, he points to several missing or lost pieces of

evidence: (1) the sexually transmitted disease examination of the defendant; (2) the

SANE kits (3) the photographs from the SANE examination; (4) the three

pornographic DVDs, two laptops, and cell phone that were seized by the police; (5)

the recording of Officer Dutton’s interview with Hines; (6) a report from a

polygraph examination of one of the alleged victims; (7) the recorded SANE

interview of one of the alleged victims; (8) a recorded phone conversation between

one of the alleged victims and Marion County Children Services; (9) the photos of

the search of Hines’s house. December 28, 2018 Tr. 132-133; 134-136, 155; 137-

138; 140-143; 143-144; 145-146; 149; 147; 149-152. We will examine the trial

court’s findings as to each of these missing pieces of evidence.

       {¶20} First, the results of Hines’s sexually transmitted disease examination

were not preserved. Doc. 73. One of his alleged victims tested positive for

chlamydia in April of 2012. Doc. 73. In the “State’s theory of the case,” this

chlamydia allegedly came from Hines. Doc. 73. However, Hines was tested for the

presence of a sexually transmitted disease in May of 2012. Doc. 73. Based on the

transcript of the hearing, it appears that Hines submitted to testing through the

probation department pursuant to a court order. December 28, 2018 Tr. 84. These

test results indicated that he did not have chlamydia. Doc. 73.



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       {¶21} At a hearing on the motion to dismiss for preindictment delay,

Lieutenant Dutton, who was involved in the police investigation, testified that the

prosecutor’s office informed him that Hines had tested negative for chlamydia.

December 28, 2018 Tr. 83. Lieutenant Dutton, however, stated that he was unaware

of who tested Hines and where Hines was tested. Id. at 83. Further, he stated that

he never received any samples related to Hines’s test or any documentation of the

test results. Id. at 66, 83.

       {¶22} The trial court determined that, at this time, no report exists that

documents the results of this test. Doc. 73. Hines argued that he was “left without

a negative test” from the time of the accusations. December 28, 2018 Tr. 131. The

trial court found

       that the absence of these items does substantially prejudice the
       Defendant. The presence of chlamydia on the alleged rape victim
       and not on the Defendant raises some question about the
       Defendant’s guilt. The details regarding this examination,
       specifically what his test results mean, is critical.

Doc. 73. The trial court further found that the State’s inability to locate this report

“disturbing.” Doc. 73.

       {¶23} Second, Hines’s three alleged victims had SANE examinations

conducted on April 27, 2012. Doc. 73. However, none of the SANE kits had been

preserved. Doc. 73. The SANE examinations were conducted roughly six months

after the alleged offenses. December 28, 2018 Tr. 134. Hines’s defense counsel

then stated the following:

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       What my issue, then, is the State wants to have its cake and eat it
       too. They want to say “These statements to the SANE examiner
       are for the purpose of medical diagnosis,” on the one hand.

       And then on the—out of the other side of their mouth, they want
       to say, “But there was no medical diagnosis to be made, because
       it was six months later.”

       So I [trial counsel] should be able to demonstrate to the jury * * *
       it’s not just the woman’s [SANE nurse’s] word, but here’s the
       physical evidence that there is nothing to see.

December 28, 2018 Tr. 135-136. After considering the testimony at the hearings,

the trial court found that the evidentiary value of the physical SANE kits was

“unclear.” Doc. 73. The trial court further found that the loss of the physical SANE

kit was unlikely to prejudice Hines. Doc. 73.

       {¶24} Third, as part of one of the SANE examinations, there were

colposcope photographs taken to assess whether one of the alleged victims had

internal damage from the alleged acts. December 28, 2018 Tr. 134. The nurse’s

notes state that the alleged victim’s vagina was “red.” Id. at 137. However, there

are no photographs to examine to determine the significance of this notation or what

the evidentiary value of this “redness” is. Id. Hines argued that the nurse, after six

years, likely did not remember what these notes mean or what the SANE

examination indicated. Id. at 137-138. Hines further argued that these photographs

were needed to interpret or challenge the findings in the nurse’s report. Doc. 73.

While the trial court found that the loss of the physical contents of the SANE kits

were not necessarily prejudicial, the trial court did find that

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       [t]he photographs from the colposcope exam would be important
       in assessing the reliability of any physical findings from the exam.
       Without these photographs, all we are left with are the written
       findings in the report, as it is unlikely that the examiner will have
       any memory of the examinations.

Doc. 73.

       {¶25} Fourth, Hines did not retain the three pornographic DVDs, two

laptops, and cell phone that were seized as part of the police investigation in 2012

after these items were returned to him in 2014. Id. at 139. Hines was accused of

video recording his accusers on his cell phone and of showing pornography on his

computer to his accusers as part of a “grooming process.” December 18, 2018 Tr.

141. Hines alleged that BCI never conducted a forensic analysis of these electronic

devices even though the State had these items for almost two years. Doc. 23. Hines

argued that, without these electronic devices, he could not compare the allegations

of the alleged victims to the content of his electronic devices and could not,

therefore, assess the reliability and consistency of the allegations against him.

December 28, 2018 Tr. 142.

       {¶26} After considering these arguments, the trial court found the fact that

Hines “did not retain these items” was “not unreasonable given that the case

appeared to have been closed.” Doc. 73. While the exact parameters of the

examinations of these devices was unknown, BCI’s report only indicates that “no

evidentiary items were located” on these devices. Doc. 73. The trial court also

stated that “[t]he Defendant’s unrebutted testimony at the hearing was that there was

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nothing on the computer that would be consistent with the victims’ reports.” Doc.

73. The trial court further found that “the absence of the computers or cell phone

for further examination prejudices the Defendant’s opportunity to present a

defense.” Doc. 73.

      {¶27} Fifth, Lieutenant Dutton testified that he was wearing a body camera

when he briefly interviewed Hines. Doc. 73. Lieutenant Dutton stated that Hines

refused to be interviewed but that a brief conversation ensued wherein Hines made

a number of statements. Doc. 73. Hines alleged that he denied committing the

offenses during this interaction with Lieutenant Dutton. December 28, 2018 Tr.

145. Hines stated that he wanted to “bring up every instance” where he denied the

allegations to demonstrate that he has consistently done so. December 28, 2018 Tr.

145. However, this recording has not been preserved. Doc. 73.

      {¶28} Sixth, one of the alleged victims, C.K., agreed to take a polygraph

examination at BCI. Doc. 73. The record indicates that the results of the polygraph

examination were inconclusive, but there was no report regarding this examination

that could be located. Doc. 73. The trial court found that the absence of this

evidence “appeare[d] unlikely to prejudice the Defendant” as “[i]t [was] unclear

how * * * [the polygraph examination] could lead to admissible evidence that would

benefit the Defendant.” Doc. 73.

      {¶29} Seventh, one of the alleged victims, J.H., had a SANE examination at

a hospital on December 11, 2013. Doc. 73. This examination included a recorded

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interview about the allegations. Doc. 73. This video recording, however, could not

be located by the time of the hearing. Doc. 73.

       {¶30} Eighth, one of the alleged victims, J.H., also had a phone interview

with children services. Doc. 73. The social worker attempted to record this

interview. Doc. 73. However, this audio recording could not be located at the time

of the hearing. Doc. 73. Regarding the recorded SANE interview and the phone

interview with children services, the trial court found that “[w]ithout an accurate

record of [the alleged victims’] prior statements, it is difficult to assess the reliability

of current testimony or compare it with prior statements. All of this effects the

Defendant’s due process.” Doc. 73.

       {¶31} Ninth, there are not currently any photographs of the interior of

Hines’s home that were taken at the time of the police search of his home. Doc. 73.

The records of the evidence collected do not indicate whether photographs were

taken at the time of the search. Doc. 73. The trial court noted that “it would be

standard practice to” have taken photographs at the time of the search. Doc. 73.

Hines stated that he has relocated since the time that the police searched his home.

December 28, 2018 Tr. 151. Hines argued that without these photographs, he could

not effectively cross-examine his accusers as to the setting of the alleged offenses.

Doc. 73. The trial court found that “[t]he photographs from the house * * *[,]

assuming they were taken, would also be very useful in assessing the testimony of

the alleged victims.” Doc. 73.

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       {¶32} After considering the testimony and arguments presented at the

hearings on the motion, the trial court found that the absence of the chlamydia test

results and the electronic devices were “substantially prejudicial.” Doc. 73. The

trial court then found that the absence of the “actual SANE kits” and the polygraph

test results were “unlikely to prejudice the Defendant.” Doc. 73. The trial court

also found that the “other remaining missing items of evidence * * * individually

are not sufficient to establish prejudice. However, their collective absence could

prejudice the Defendant.” Doc. 73. The trial court concluded that

       [h]ad this case been prosecuted years earlier when the
       investigation was complete and before evidence was disposed of,
       it is reasonable to believe that all or most of the missing evidence
       would exist. Moreover, it would be more possible for the
       memories of witnesses to fill in any gaps. That is no longer the
       case.

Doc. 73. On review, we are to give great deference to the factual findings of the

trial court. Powell, supra, ¶ 11.

       {¶33} After examining the relevant case law, the facts of this case appear to

present a unique constellation of missing evidentiary materials. In this case, the

prosecution’s case against Hines relies on the credibility of the alleged victims. See

Winkle, supra, at ¶ 24. Hines identified specific items of missing evidence to the

trial court and explained how the absence these evidentiary materials would

prejudice Hines’s ability to call the stories of his accusers into question. Hines’s

argument is not based upon vague assertions or purely speculative arguments.


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Several pieces of missing evidence—the electronic devices and the chlamydia test

results—directly contradicted several key allegations of Hines’s accusers.

       {¶34} We turn now to examining whether the State carried its burden of

demonstrating that the preindictment delay was justifiable. In its brief, the State

only argues that Hines has not carried the burden of establishing actual prejudice

and does not present any reason for the six-year delay. The record also does not

indicate that the State presented a justifiable reason for this delay to the trial court.

In its memorandum in opposition to defendant’s motion to dismiss for preindictment

delay, the State did not attempt to provide a justification for the six-year delay in

filing an indictment against Hines. Doc. 36. Thus, the trial court concluded that

“the State has presented no evidence to support the delay in prosecution.” Doc. 73.

       {¶35} The record does indicate that the State was aware of the identity of the

accused at the time that the allegations were made by the victims in 2012. See State

v. Powell, 8th Dist. Cuyahoga No. 102922, 2016-Ohio-1220, ¶ 23. There is also is

no indication that new evidence surfaced. See Luck, supra, at 159. In fact, the State

stated that the reasons for this delay were unknown due to the passing of the former

Marion County Prosecutor. December 28 Tr. 124. August 9, 2018 Tr. 16-17. Doc.

36. Thus, our review of the record does not suggest a possible reason for the State’s

delay in charging Hines with these offenses. For these reasons, we conclude that

the trial court did not err in finding that the State did not carry its burden of

establishing that there was a justifiable reason for the six-year delay.

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                                     Conclusion

       {¶36} In this case, Hines specifically identified nine missing pieces of

evidence and presented arguments as to how the absence of each of these pieces of

evidence prejudiced him. After examining these arguments and the facts of this

case, the trial court found that Hines had carried the burden of establishing actual

prejudice.    Further, the State did not present any reason—justifiable or

unjustifiable—for this six-year preindictment delay. As a matter of law, we cannot

conclude that the trial court erred in dismissing this indictment. For this reason, the

State’s sole assignment of error is overruled. Having found no error prejudicial to

the appellant in the particulars assigned and argued, the judgment of the Marion

County Court of Common Pleas is affirmed.

                                                                 Judgment Affirmed

ZIMMERMAN, P.J. and SHAW, J., concur.

/hls




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