[Cite as State v. Battiste, 2015-Ohio-3586.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 102299




                                        STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                     JAYSON BATTISTE
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-579620-A

        BEFORE: E.T. Gallagher, P.J., S. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 3, 2015
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Maxwell Martin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, Jayson Battiste (“Battiste”), appeals from his conviction

for sexual battery, raising four assignments of error for review:

       1. Appellant’s conviction for sexual battery is against the manifest weight
       of the evidence.

       2. The trial court violated appellant’s due process rights when it excluded
       evidence of the victim’s prostitution on the basis of Ohio’s Rape Shield
       Act.

       3. The trial court committed reversible error and violated appellant’s
       Fourteenth Amendment right to a fair trial when it improperly permitted the
       police detective to offer opinions on appellant’s guilt.

       4. Appellant was denied effective assistance of counsel in violation of the
       Sixth and Fourteenth Amendments to the United States Constitution and
       Article 1, Section 10 of the Ohio Constitution.


       {¶2} After careful review of the record and relevant case law, we affirm Battiste’s

conviction.

                           I. Procedural and Factual History

       {¶3} In November 2013, Battiste and codefendant, Michael Taylor (“Taylor”),

were named in a four-count indictment charging them with one count of rape, in violation

of R.C. 2907.02(A)(2); one count of attempted rape, in violation of R.C. 2907.02(A)(2)

and 2923.02; one count of sexual battery, in violation of R.C. 2907.03(A)(3); and one

count of kidnapping, in violation of R.C. 2905.01(A)(4). The charges stem from a report
of a sexual assault made by the complaining witness, D.T., in connection with events that

occurred in July 2003.

       {¶4} Prior to trial, the state filed a motion in limine seeking to prohibit Battiste

from introducing evidence of D.T.’s prior sexual activity. The trial court granted the

state’s motion in limine to “preclude admission of evidence under Ohio’s rape shield

statute * * * insofar as it seeks to preclude evidence offered at trial by the defendant of

D.T.’s prior sexual activity only to impeach her credibility.”

       {¶5} In September 2014, Battiste’s case proceeded to a jury trial where the

following evidence was adduced. 1 In July 2003, then 21-year-old D.T. attended the

Cleveland Puerto Rican Festival with her friend T.J. The two friends walked around,

listened to music, ate food, and D.T. consumed alcohol. D.T. estimated that she drank

between three to six beers over the course of the day and was taking prescription

medications during that time period. While at the festival, D.T. and T.J. met two men.

D.T. could not remember the names of the men, but recalled that they were African

American males around her age.

       {¶6} Later that evening the men agreed to give D.T. and T.J. a ride home. D.T.

could not remember what time it was when they left the festival but stated that it was

“dark out.” D.T. testified that T.J. was dropped off first, but that she did not remember



       1  The trial court originally ruled that the codefendants would be tried
together, but trial commenced against Taylor separately when Battiste’s attorney
became ill. Taylor was found guilty of sexual battery in May 2014. This court
affirmed Taylor’s conviction in State v. Taylor, 8th Dist. Cuyahoga No. 101615,
2015-Ohio-2033.
seeing T.J. exit the vehicle because she had fallen asleep in the backseat during the car

ride. According to D.T., the next thing she remembered was waking up in the backseat

of the parked car with a man on top of her. At that point, her skirt was up, her underwear

was missing, and the man was “having sex with [her].” D.T. clarified on the record that

the man’s penis penetrated her vagina. D.T. testified that she did not consent to sexual

relations, and that she was unconscious when the man got on top of her. D.T. managed

to get out of the car and used her cell phone to call a friend to pick her up. When she

exited the car, she observed a second man standing outside the car.

       {¶7} T.J. testified that she remembered meeting D.T. at the Cleveland Puerto

Rican Festival in July 2003. She stated that she did not recall seeing D.T. drink that day,

but confirmed that D.T. drank during that time period. Additionally, T.J. corroborated

D.T.’s testimony that they met two men at the festival and accepted rides home from them

later that evening. T.J. testified that she was dropped off first and did not recall D.T.

being asleep at the time she exited the vehicle. T.J. first estimated that she arrived at her

house around 8:00 p.m., but later testified that it was probably closer to 10:30 p.m.

       {¶8} During her cross-examination, T.J. admitted that D.T. had previously stated

that she “wouldn’t mind selling her body for sex.” However, on redirect, T.J. clarified

that she recalled telling detectives that she had no reason to believe D.T. was planning to

engage in prostitution that day.

       {¶9} At approximately 1:00 p.m. the next day, D.T. had a friend take her to the

Cleveland Clinic emergency room. During her initial examination, D.T. told medical

personnel that she had been vaginally raped by two males.        D.T. stated that she went
home after the sexual assault and washed her vaginal area before following a friend’s

encouragement to go to the hospital for treatment.       She also indicated that she had

consensual sex with her boyfriend approximately two days earlier.

       {¶10} Dr. Jonathan Glauser, the treating physician, testified that he evaluated D.T.

and collected evidence for a rape kit pursuant to hospital protocol.    Dr. Glauser testified

that D.T. did not have any vaginal trauma, physical injuries to any other part of her body,

or “physical evidence of trauma that needed to be addressed.”          However, Dr. Glauser

stated that is is not uncommon for a victim of a sexual assault to have no “obvious signs

of trauma.”   According to medical records, D.T. was alert, cooperative and did not

appear to be distressed.   Dr. Glauser clarified that there is no uniform reaction amongst

rape victims and that some victims react hysterically while others react calmly, or some

manner between those extremes.

       {¶11} D.T.’s case was assigned to Detective Rochell Bush (“Det. Bush”) of the

Cleveland Police Department. Following numerous attempts to contact and meet with

D.T., Det. Bush determined not to go forward with the investigation based on D.T.’s lack

of cooperation.

       {¶12} In 2006, the case was assigned to Detective Christina Cottom (“Det.

Cottom”) after Battiste was identified as a possible suspect in this matter through the

Combined DNA Index System (“CODIS”) database. Det. Cottom testified that in the

course of reopening her investigation she made contact with D.T.          According to Det.

Cottom, D.T. stated that she “could not remember, quite remember this rape, but would

call back and set up an appointment to come down and give a statement.”            However,
D.T. never called to schedule an appointment, and Det. Cottom was unsuccessful in her

subsequent attempts to contact D.T.    As a result, the case was held in abeyance.

       {¶13} In 2013, Taylor was identified as a possible suspect in this matter through

CODIS.        At that point, Det. Cottom contacted D.T. and scheduled a face-to-face

meeting.      On this occasion, D.T. was cooperative and came to Det. Cottom’s office to

provide a statement and to view two separate photo arrays.      Det. Cottom testified that

one of the purposes of showing D.T. the photo arrays was to eliminate any consensual sex

partners from her investigation. Ultimately, D.T. was unable to identify Battiste or

Taylor in the separate photo arrays.

       {¶14} In the course of her investigation, Detective Cottom interviewed Battiste and

showed him photographs of D.T. and T.J. Det. Cottom testified that Battiste “denied

knowing either of the women, and informed me that he knows just about every woman

that he’s ever been with and still did not recognize either of the women.” Battiste stated

that he was Taylor’s roommate in 2003 but denied ever having sex with a woman Taylor

had sex with. Battiste further denied ever having sex with D.T.

       {¶15} Forensic scientist, Heather Bizub, testified that in 2013, she compared the

DNA samples obtained from Battiste and Taylor to the DNA sample found in D.T.’s rape

kit. The semen found on the vaginal swabs from D.T. resulted in a mixture that was

consistent with contributions from the victim, Taylor, Battiste, and at least one unknown

individual.
       {¶16} At the conclusion of trial, the jury found Battiste guilty of sexual battery.

He was acquitted of the remaining charges. Subsequently, the trial court sentenced

Battiste to a maximum prison sentence of five years.

       {¶17} Battiste now appeals from his sexual battery conviction.

                                   II. Law and Analysis

                          A. Manifest Weight of the Evidence

       {¶18} In his first assignment of error, Battiste argues his conviction for sexual

battery is against the manifest weight of the evidence.

       {¶19} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that

the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.

This is a difficult burden for an appellant to overcome because the resolution of factual

issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶20} Reviewing courts give great deference to the trier of fact.          We do so

because:
             The fact-finder * * * occupies a superior position in determining credibility.
              The fact-finder can hear and see as well as observe the body language,
             evaluate voice inflections, observe hand gestures, perceive the interplay
             between the witness and the examiner, and watch the witness’s reaction to
             exhibits and the like. Determining credibility from a sterile transcript is a
             Herculean endeavor. A reviewing court must, therefore, accord due
             deference to the credibility determinations made by the fact-finder.

      State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist.1998).

             {¶21} Battiste was convicted of a single count of sexual battery in violation of

      R.C. 2907.03(A)(3), which states:

            No person shall engage in sexual conduct with another, not the spouse of the
      offender, when * * * [t]he offender knows that the other person submits because the other
      person is unaware that the act is being committed.

      {¶22} In challenging the weight of the evidence supporting his conviction, Battiste maintains

that D.T.’s testimony is “totally unreliable, contrary to common sense, and inconsistent with the

testimony of her friend [T.J.].” In relation to the element of the crime requiring proof that the victim

submits because he or she is “unaware that the act is being committed,” Battiste argues that “it is

preposterous to believe that a 21-year-old ‘passed out’ after drinking 3 to 6 beers over the course of

several hours and remained unconscious * * * while two men had sex with her.”

             {¶23} After careful review of the record in its entirety, we are unable to conclude

      that this is the exceptional case in which the evidence weighs heavily against the

      conviction. The jury, as the trier of fact, was in the best position to weigh the credibility

      of D.T.’s testimony and was free to believe all or part of it. It is clear from the jury’s

      finding of not guilty on the remaining charges that it carefully considered all relevant

      testimony and any inconsistencies when rendering its verdict. Defense counsel had the

      opportunity to cross-examine D.T. on the perceived inconsistencies with her time line and
version of the incident, including the events that took place after T.J. was dropped off at

her home for the evening. While Battiste disputes D.T.’s testimony that she was “passed

out” at the time the sexual conduct occurred, we must defer to the trier of facts

assessment of her credibility with respect to that element of the offense. Accordingly, we

cannot say the jury clearly lost its way, thus creating such a manifest miscarriage of

justice that Battiste’s sexual battery conviction must be reversed.

       {¶24} Battiste’s first assignment of error is overruled.

                                   B. Rape Shield Statute

       {¶25} In his second assignment of error, Battiste argues the trial court violated his

due process rights when it excluded evidence of D.T.’s sexual history, including her

alleged reputation as a prostitute.

       {¶26} R.C. 2907.02(D), commonly known as the rape shield statute, states in

pertinent part:

              Evidence of specific instances of the victim’s sexual activity, opinion
       evidence of the victim’s sexual activity, and reputation evidence of the
       victim’s sexual activity shall not be admitted under this section unless it
       involves evidence of the origin of semen, pregnancy, or disease, or the
       victim’s past sexual activity with the offender, and only to the extent that
       the court finds that the evidence is material to a fact not at issue in the case
       and that its inflammatory or prejudicial nature does not outweigh its
       probative value.

       {¶27} The statute essentially prohibits the introduction of any extrinsic evidence

pertaining to the victim’s sexual activity, with limited exceptions. Ohio courts have

recognized that application of the rape shield statute may not unduly infringe upon a

defendant’s constitutional right of confrontation, right to a fair trial, and right to present a
defense. See State v. Young, 8th Dist. Cuyahoga No. 92127, 2009-Ohio-5354; State v.

Gardner, 59 Ohio St.2d 14, 17-18, 391 N.E.2d 337 (1979).

       {¶28} To protect a defendant’s constitutional rights, courts must “balance the state

interest which the [rape shield] statute is designed to protect against the probative value

of the excluded evidence.” Gardner at 17. “The key to assessing the probative value of

the excluded evidence is its relevancy to the matters as proof of which it is offered.” Id.

       {¶29} In Gardner, the Ohio Supreme Court found that “[e]vidence that [the]

complainant had a reputation as a prostitute is not sufficiently probative of consent to

outweigh the state’s legitimate interests in excluding the testimony, at least where there is

no suggestion in the record that financial arrangements were entered into for sexual

activities in this instance.” (Emphasis added.) Id. at 18. On the other hand, where the

proffered evidence is offered for more than mere impeachment of credibility, and is

directly probative of a material issue in the case, the evidence should not be excluded

under the rape shield law. State v. Williams, 21 Ohio St.3d 33, 487 N.E.2d 560 (1986).

       {¶30} In State v. Ciacchi, 8th Dist. Cuyahoga No. 92705, 2010-Ohio-1975, this

court was asked to confront the limited exceptions to the rape shield statute and

determine, under the specific facts of that case, whether evidence of the victim’s

solicitations for sex in exchange for money was offered merely to impeach the victim’s

credibility or whether it was directly probative of the element of consent. In Ciacchi, the

defendant testified that the victim propositioned him on the street and that he went to her

apartment after paying her $20 for oral sex. Id. at ¶ 18. However, the trial court

prevented the defendant from providing further details of the conversation that occurred
on the street and inside the victim’s apartment. Applying the case law set forth in

Gardner, this court reversed the defendant’s conviction and ordered a new trial, finding

that the evidence was “not precluded by Ohio’s rape shield law” because the victim’s

statements soliciting sex for money on the street and the victim’s statements made at her

apartment were “directly related to the specific sexual encounter at issue in the case.” Id.

at ¶ 24. Thus, the testimonial evidence went directly to the issue of consent. Id.

         {¶31} After careful review of the record, we find Ciacchi to be factually

distinguishable. In the case at hand, there is nothing in the record to suggest that a

financial arrangement was entered into between D.T. and Battiste. To be fair, T.J.

indicated that she was aware D.T. may have exchanged sex for money in the past.

However, with respect to this specific instance, T.J. confirmed during her redirect

examination that there was nothing that led her to believe D.T. was planning to, or in fact

did, exchange sex for money on the night of the incident. Additionally, D.T. adamantly

denied defense counsel’s repeated accusations that she engaged in sex for money or

drugs.

         {¶32} Thus, unlike the circumstances of Ciacchi, there is nothing in the record, nor

was there any testimony presented, to suggest that prostitution was involved in the

specific sexual encounter at issue in this case. In fact, Battiste denied ever having sex

with D.T., in exchange for money or otherwise, during his interview with Det. Cottom.

Thus, evidence of D.T.’s prior sexual activity would serve only to impeach her credibility,

which is precisely the type of evidence R.C. 2907.02(D) was created to preclude. See

State v. Williams, 21 Ohio St.3d 33, 36, 487 N.E.2d 560 (1986). As stated in Gardner,
without specific evidence indicating a suggestion of a sexual agreement for money in

relation to Battiste’s interaction with D.T., evidence of D.T.’s past prostitution conviction

was not sufficiently probative of consent to outweigh the interests in excluding the

evidence.

       {¶33} Furthermore, we find no merit to Battiste’s argument that the state “opened

the door” for defense counsel to introduce evidence of D.T.’s prior prostitution conviction

once it elicited testimony from T.J. that she had no reason to believe D.T. was planning to

engage in sex with either of the men who drove her home on the evening of the sexual

assault. Battiste correctly states that a party may use relevant information to rebut the

inference arising from evidence when a party opens the door to otherwise inadmissible

evidence. State v. Jackson, 57 Ohio St.3d 29, 565 N.E.2d 549 (1991). However, in our

view, evidence of D.T.’s sexual history would not rebut T.J.’s narrow testimony

concerning what she personally observed on the night of the incident.

       {¶34} Battiste’s second assignment of error is overruled.

                                  C. Opinion Testimony

       {¶35} In his third assignment of error, Battiste argues the trial court committed

reversible error and violated his Fourteenth Amendment right to a fair trial when it

improperly permitted the police detective to offer opinions on his guilt.

       {¶36} Generally, “the opinion of a witness as to whether another witness is being

truthful is inadmissible.”      State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805,

2007-Ohio-4050, ¶ 34, citing State v. Boston, 46 Ohio St.3d 108, 128, 545 N.E.2d 1220

(1989). “In our system of justice, it is the fact finder, not the expert or lay witness, who
      bears the burden of assessing the credibility or veracity of a witness.” Id., citing State v.

      Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988).

             {¶37} The testimony in question occurred when Det. Cottom was discussing the

      photo array she prepared for D.T. in the course of her investigation.             Specifically,

      Battiste challenges Det. Cottom’s statement that the identity of the “assailant” in this case

      was not at issue due to the DNA evidence collected from D.T.’s rape kit:

            Q. And what was the purpose of the office visit?
      A. Again, it’s to obtain further information, to see if [D.T.]’s able to recall, if she can give
      me any leads, any names, license plates, description of the car.

      Q. Now, you already know the identities of the two assailants at this point; is that correct?

      A. Yes, I do.

      Q. So are you relying on her necessarily to lead you in the direction of solving who did
      this?

      A. No. At this point in time, I know who did it, so I would prepare a photo spread for
      her to see if she could identify through photographs.

      {¶38} Battiste’s counsel failed to object to this portion of Det. Cottom’s testimony at trial, and

therefore, he has waived all but plain error. State v. Jones, 91 Ohio St.3d 335, 343, 744 N.E.2d 1163

(2001); State v. Tibbs, 8th Dist. Cuyahoga No. 89723, 2008-Ohio-1258, ¶ 9. Plain error exists where,

but for the error, the outcome of the trial clearly would have been different. Tibbs at ¶ 9. Appellate

courts find plain error only in exceptional circumstances where it is necessary to prevent a manifest

miscarriage of justice. Id.

             {¶39} By permitting Det. Cottom to refer to Battiste as the person “who did it,”

      Battiste argues the trial court violated the well-established prohibition against witness

      bolstering and denied him a fair trial. However, read in the context of Det. Cottom’s
entire testimony, we are unable to conclude that Det. Cottom was offering an opinion as

to the truthfulness of D.T.’s accusations or to the guilt or innocence of Battiste. Instead,

Det. Cottom was merely explaining that Battiste and Taylor were the only two individuals

being investigated for the crimes based on the available DNA evidence. Accordingly,

we conclude that the admission of Det. Cottom’s testimony did not amount to error, plain

or otherwise.

       {¶40} Battiste’s third assignment of error is overruled.

                          D. Ineffective Assistance of Counsel

       {¶41} In his fourth assignment of error, Battiste argues he was denied effective

assistance of counsel based on defense counsel’s (1) failure to object to the Det. Cottom’s

improper opinion testimony, and (2) failure to file a motion to dismiss due to prejudicial

preindictment delay.

       {¶42} The test for ineffective assistance of counsel requires a defendant to prove

“(1) that counsel’s performance was deficient, and (2) that the deficient performance

prejudiced the defendant.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). In reviewing a claim of ineffective assistance of counsel, we

examine whether counsel’s acts or omissions “were outside the wide range of

professionally competent assistance” and “recognize that counsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id. at 690. To establish the second element, the

defendant must demonstrate that there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on has having produced a just result.” Id. at 686.

       {¶43} Based on our resolution of Battiste’s third assignment of error, defense

counsel did not render ineffective assistance of counsel by failing to object to Det.

Cottom’s reference to Battiste as the “assailant.”       As stated, Det. Cottom was not

testifying to D.T.’s veracity and an objection would have proven unsuccessful.

       {¶44} Moreover, with respect to Battiste’s second basis for claiming ineffective

assistance of counsel, we believe that a motion to dismiss for preindictment delay would

have been equally unsuccessful.

       {¶45} A defendant’s due process rights can be violated by preindictment delay

under certain circumstances.      U.S. v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971); U.S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752

(1977). “An unjustifiable delay between the commission of an offense and a defendant’s

indictment therefor[e], which results in actual prejudice to the defendant, is a violation of

the right to due process of law * * *.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d

1097 (1984), paragraph two of the syllabus.

       {¶46} Courts apply a two-part test to determine whether preindictment delay

constitutes a due process violation. The defendant has the initial burden to show that he

was substantially and actually prejudiced due to the delay. State v. Whiting, 84 Ohio

St.3d 215, 217,702 N.E.2d 1199 (1998). The burden then shifts to the state to produce

evidence of a justifiable reason for the delay.      State v. Walls, 96 Ohio St.3d 437,
2002-Ohio-5059, 775 N.E.2d 829, ¶ 51, citing Whiting at 217. The due process inquiry

therefore involves a balancing test by the court, viewing the prejudice to the defendant in

light of the reasons for the delay. Luck at 154, citing Lovasco at 789-790.

      {¶47} In reviewing preindictment delay, “[t]he determination of ‘actual prejudice’

involves ‘a delicate judgment based on the circumstances of each case.’” Walls at ¶ 52,

quoting Marion at 325. In making this assessment, courts 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. Walls at ¶ 52; Luck at 154.

      {¶48} This court has previously established the standard for demonstrating actual

prejudice as the “exculpatory evidence standard”:

      [T]he defendant may not rely on speculation or vague assertions of
      prejudice. Proof of actual prejudice must be specific, particularized, and
      non-speculative. Therefore, in order to establish actual prejudice, the
      defendant must demonstrate the exculpatory value of the evidence of which
      he was deprived due to the delay.

(Citations omitted.) State v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-Ohio-415, ¶

11; see also State v. McFeeture, 8th Dist. Cuyahoga No. 100434, 2015-Ohio-1814; State

v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034; State v. Clemons, 8th Dist.

Cuyahoga No. 99754, 2013-Ohio-5131. The defendant must therefore show “how lost

witnesses and physical evidence would have proven the defendant’s asserted defense.”

Smith at ¶ 26, citing State v. Davis, 7th Dist. Mahoning No. 05 MA 235, 2007-Ohio-7216,

¶ 17 (“Without proof of prejudice, meaning something which adversely affects [a

defendant’s] ability to defend himself at trial, there is no due process violation for

preindictment delay in prosecution.”).
       {¶49} In a recent en banc decision in State v. Jones, 8th Dist. Cuyahoga No.

101258, 2015-Ohio-2853, however, this court revised its approach to establishing actual

prejudice. Relying on our decision in State v. Mack, 8th Dist. Cuyahoga No. 100964,

2014-Ohio-4817 (prejudice may be established by contending the delay resulted in the

loss of witness testimony), we concluded that the appropriate standard for determining

actual prejudice is “basic concepts of due process and fundamental justice.” Jones at ¶

47. In evaluating Jones’s claim of prejudice under this standard, this court found Jones

suffered actual prejudice where the following factors were considered (1) the case was

being reviewed prior to trial and therefore lacked the benefit of the state’s evidence

against the defendant, (2) the defendant’s identity was known from the beginning; the

case lacked physical evidence and essentially depended upon a credibility determination,

(3) the victim had not been located, (4) a witness was unavailable, (5) the state engaged in

a minimal investigation before “closing” the case, and (6) nothing occurred in the time

between the initial investigation and the indictment 20 years later. Jones at ¶ 41-47.

This court found that under these circumstances, where the state failed to take action for

20 years, “requiring Jones to demonstrate that any missing evidence or unavailable

witness testimony would have been exculpatory is simply violative of his due process

rights.” Id. at ¶ 46.

       {¶50} Once a defendant has established actual prejudice, the state must produce

evidence of a justifiable reason for delay in the commencement of prosecution. Walls,

96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at ¶ 51; Whiting, 84 Ohio St.3d at

217, 702 N.E.2d 1199. A delay 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 U.S. v.

Marion, 404 U.S. at 324, 92 S.Ct. 455, 30 L.Ed.2d 468, 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. Luck, 15 Ohio St.3d at 158, 472 N.E.2d

1097. The length of delay will typically be the “key factor” in determining whether a

delay caused by the state’s negligence or error in judgment is justifiable. Id.

       {¶51} In this case, Battiste asserts that he was prejudiced by (1) his faded memory,

(2) the faded memories of D.T. and T.J., and (3) the inability to locate the individual who

took D.T. to the hospital. With respect to Battiste’s argument concerning the witnesses’

faded memories, we find there is nothing in the record to suggest Battiste was prejudiced

by D.T. and T.J.’s inability to recall certain details of the incident. In fact, defense

counsel frequently utilized D.T.’s inability to recall details to Battiste’s advantage

throughout trial, including closing arguments where counsel stated, “don’t you think you

would remember something about someone who raped you?”

       {¶52} Furthermore, Battiste did not testify at trial. Therefore, this court has no

basis to review whether his impaired memory prejudicially impeded the “basic concepts

of due process and fundamental justice.” See State v. Dixon, 8th Dist. Cuyahoga No.

102335, 2015-Ohio-3144, ¶ 26, citing State v. Smith, 8th Dist. Cuyahoga No. 100501,

2014-Ohio-3034, ¶ 26 (“a defendant’s own general assertion that he does not remember

details of an event that occurred nearly 20 years ago does not, in and of itself, constitute

actual prejudice.”).
       {¶53} Similarly, there is nothing in the record to suggest that defense counsel’s

inability to locate the individual who took D.T. to the hospital deprived him of due

process or fundamental justice. Within his brief, Battiste contends that he was unable to

rebut the state’s theory that D.T. was “passed out” at the time of the sexual battery

because he was unable to question the missing witness about D.T.’s physical and

emotional condition prior to arriving at the hospital. In addition to speculating as to what

the missing witness would have testified, such evidence would have been cumulative to

much of the rebuttal testimony defense counsel elicited during the cross-examination of

D.T., T.J., and Dr. Glauser concerning D.T.’s level of sobriety and physical condition

during the relevant time periods.

       {¶54} Based on these facts, Battiste has failed to demonstrate actual prejudice

pursuant to the standard set forth in Jones. As such, we find that Battiste has failed to

prove that his trial counsel’s failure to file a motion to dismiss for preindictment delay

constituted ineffective assistance of counsel. Even if we assume, arguendo, that trial

counsel’s representation fell below an objective standard of reasonableness as a result of

his failure to file a motion to dismiss, Battiste has not established he was prejudiced as a

result of his trial counsel’s alleged ineffectiveness or a reasonable probability that the

result of the proceeding would have been different had the motion been filed. See

Strickland 466 U.S. 668, at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶55} Battiste’s fourth assignment of error is overruled.

                                     III. Conclusion
       {¶56} Battiste’s sexual battery conviction was supported by the manifest weight of

the evidence. Furthermore, the trial court did not err by excluding evidence of the

victim’s prior sexual history pursuant to R.C. 2907.02(D). Finally, defense counsel was

not deficient for failing to file a motion to dismiss based on preindictment delay or by

failing to object to portions of testimony provided by the state’s witnesses.

       {¶57} Judgment affirmed.

       It is ordered that appellee recover from appellant 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 common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION ATTACHED)



SEAN C. GALLAGHER, J., CONCURRING:

       {¶58} I concur fully with the judgment and analysis of the majority. I write

separately to address my ongoing opposition to the holding of the majority in our recent
en banc decision in State v. Jones, 8th Dist. Cuyahoga No. 101258, 2015-Ohio-2853,

discussed in ¶ 48 of the opinion.

       {¶59} Although the majority here correctly distinguishes Jones from the facts at

play in this case, I nevertheless continue to believe Jones was wrongly decided and has

minimal precedential value.     Jones effectively watered down the first prong of the

long-standing preindictment delay standard outlined by the majority. Further, Jones

failed to even address the second prong of that test.

       {¶60} This case also points out the unworkable and inherently inconsistent

approach Jones brings to preindictment delay analysis. Under Jones, speculation and

dubious claims of missing or lost evidence create a “due process and fundamental right”

standard replacing the traditional “exculpatory evidence” standard.
