[Cite as State v. Stevens, 2014-Ohio-4875.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 8-14-09

        v.

ROBERT D. STEVENS,                                         OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR11-12-0258

                                       Judgment Affirmed

                           Date of Decision: November 3, 2014




APPEARANCES:

        Marc S. Triplett for Appellant

        Eric C. Stewart for Appellee
Case No. 8-14-09


ROGERS, J.

       {¶1} Defendant-Appellant, Robert Stevens, appeals the judgment of the

Court of Common Pleas of Logan County denying his motion to dismiss. On

appeal, Stevens argues that the trial court erred by finding that no prejudicial delay

resulted from the State’s negligence and denying his motion to dismiss for want of

a speedy trial. For the reasons that follow, we affirm the trial court’s judgment.

       {¶2} The Logan County Sheriff’s Office suspected that Stevens was

viewing child pornography after receiving a tip from the Internet Crimes Against

Children Task Force. On December 1, 2011, the Logan County Sheriff’s Office

obtained and executed a warrant to search Stevens’ home for computers and

electronic storage devices. They seized five computers from Stevens’ home along

with other electronic storage items. Stevens cooperated with police officers and

confessed to viewing and downloading child pornography on his computer over

the past two to three years. He admitted that his computer contained hundreds of

illegal photographs and that he was the only person who used his computer.

       {¶3} On December 6, 2011, a complaint was filed in the Bellefontaine

Municipal Court charging Stevens with one count of pandering sexually oriented

matter involving a minor in violation of R.C. 2907.322(A)(5), a felony of the

fourth degree, and one count of illegal use of a minor in nudity-oriented material

in violation of R.C. 2907.323(A)(3), a felony of the fifth degree. On December 9,


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2011, Stevens was granted a recognizance bond and this matter was bound over to

the Court of Common Pleas.

        {¶4} The Logan County Sheriff’s Office submitted two of Stevens’ laptop

computers to the Bureau of Criminal Investigation (“BCI”). These computers

were analyzed, but no illegal images were found. As a result, on April 4, 2012,

the State filed a motion to dismiss the charges against Stevens, which was granted

the same day.     Sometime in early 2013, the Logan County Sheriff’s Office

realized that it had neglected to send Stevens’ three other computers to BCI to be

tested. In March of 2013, BCI found evidence of child pornography on these

computers.

        {¶5} On July 9, 2013, the Logan County Grand Jury indicted Stevens on six

counts of illegal use of a minor in nudity-oriented material in violation of R.C.

2907.323(A)(3), felonies of the fifth degree, and three counts of pandering

sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5),

felonies of the fourth degree.

        {¶6} Stevens then filed a motion to dismiss on October 8, 2013, alleging

that the State had violated his constitutional right to a speedy trial because over 15

months had passed between the filing of his complaint and his indictment. The

State filed its memorandum contra to Stevens’ motion to dismiss on October 28,

2013.


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       {¶7} On November 1, 2013, Stevens waived his statutory right to a speedy

trial, but preserved his constitutional right to a speedy trial. See (Docket Nos. 35,

36).

       {¶8} On November 6, 2013, the trial court denied Stevens’ motion to

dismiss. In denying his motion, the trial court stated that even though a delay of

more than one year is presumptively prejudicial, “The presumption is rebuttable.

When one asks what is the prejudice to this Defendant, the answer is none.”

(Docket No. 37, p. 3).

       {¶9} On February 24, 2014, pursuant to a plea agreement, Stevens pled no

contest to two counts of illegal use of a minor in nudity-oriented material and one

count of pandering sexually-oriented material. The State dismissed the remaining

counts of the indictment. On March 31, 2014, the court sentenced Stevens to six

months in jail, subject to work release, and five years of community control.

       {¶10} Stevens filed this timely appeal, presenting the following assignment

of error for our review.

                               Assignment of Error

       THE TRIAL COURT ERRED WHEN IT DENIED
       APPELLANT’S MOTION TO DISMISS FOR WANT OF A
       SPEEDY TRIAL.

       {¶11} In his sole assignment of error, Stevens argues that the trial court

erred in denying his motion to dismiss due to a speedy trial violation. Specifically,


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Stevens argues that the trial court erred by requiring Stevens to show that he was

prejudiced by the State’s delay. We disagree.

      {¶12} The Sixth Amendment to the United States Constitution guarantees

that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial * * *.” This right “is fundamental and imposed on the states by

the Due Process Clause of the Fourteenth Amendment to the United States

Constitution.” State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-

4666, ¶ 12, citing Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988

(1967).    The Ohio Constitution provides similar protections to criminal

defendants. Ohio Constitution, Article I, Section 10.

      {¶13} However, it is well established that the Sixth Amendment guarantee

to a speedy trial does not apply until the defendant becomes “an ‘accused[.]’ ”

United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455 (1971). Only when the

accused is formally indicted, or is arrested and being held to answer a criminal

charge, will “the particular protections of the speedy trial provisions of the Sixth

Amendment” be triggered. Id. at 320; see also United States v. MacDonald, 456

U.S. 1, 3, 8-9, 102 S.Ct. 1497 (1982) (“[N]o Sixth Amendment right to a speedy

trial arises until charges are pending.”). “Once charges are dismissed, the speedy

trial guarantee is no longer applicable. At that point, the formerly accused is, at

most, in the same position as any other subject of a criminal investigation.” Id.


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This same principle applies to a defendant’s statutory right to a speedy trial. See

State v. Broughton, 62 Ohio St.3d 253, 258 (1991) (statutory right to speedy trial

not violated when State dismisses a complaint or indictment but uses the same

underlying facts to provide the basis for a new indictment at a later date); State v.

Spratz, 58 Ohio St.2d 61, 62 (1979) (the speedy-trial statute was tolled following a

nolled indictment until the date of reindictment); City of Westlake v. Cougill, 56

Ohio St.2d 230, 233 (1978) (tolling speedy-trial statute during the time between a

nolle prosequi of a misdemeanor charge and the second filing a misdemeanor

charge arising from the same conduct).

       {¶14} Here, the original complaint charging Stevens with criminal conduct

was filed on December 15, 2011, and four months later, in April of 2012, the State

filed a motion to dismiss the complaint. The Logan County Grand Jury indicted

Stevens on the charges that give rise to this appeal on July 19, 2013. Stevens

argues that the delay in prosecution from December 15, 2011 to July 19, 2013

resulted in a violation of his speedy trial rights. However, there was no official

proceeding between April of 2012 and July 19, 2013, because the State had

voluntarily dismissed the complaint against Stevens. Since there was no official

proceeding, Stevens’ Sixth Amendment rights could not have been violated during

that time period.




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       {¶15} In the alternative, Stevens argues that even if this court only

considers the time period when charges were pending against Stevens, we would

still find that his constitutional right to a speedy trial was violated because such

time still totaled 12 months, which is presumptively prejudicial. When a criminal

defendant claims a violation of his constitutional right to a speedy trial, the United

States Supreme Court has pronounced a balancing test for courts to use. Barker v.

Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 (1972). In Barker, the Court held that

courts should assess four factors when evaluating speedy-trial violations: (1) the

length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his

right; and (4) the prejudice to the defendant. Id.

       {¶16} Barker stated that the first factor, the length of the delay, is a

“triggering mechanism.” Id. “Until there is some delay which is presumptively

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

balance.” Id. The Supreme Court has clarified that “in this threshold context,

‘presumptive prejudice’ does not necessarily indicate a statistical probability of

prejudice; it simply marks the point at which courts deem the delay unreasonable

enough to trigger the Barker enquiry.” Doggett v. United States, 505 U.S. 647,

652, fn. 1, 112 S.Ct. 2686 (1992).        Only when the delay is presumptively

prejudicial do courts need to analyze the remaining three factors. Id. Courts have




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found that a delay is considered presumptively prejudicial as it approaches one

year. Id.; State v. Miller, 10th Dist. Franklin No. 04AP-285, 2005-Ohio-518, ¶ 12.

          {¶17} The second Barker factor to consider is “the reason the government

assigns for the delay.”        State v. Triplett, 78 Ohio St.3d 566, 569 (1997).

“[D]ifferent weights should be assigned to different reasons. A deliberate attempt

to delay a trial in order to hamper the defense should be weighted heavily against

the government.” Barker at 531. However, a diligently pursued prosecution that

is delayed for a valid reason, such as a missing witness, will not be weighted

heavily against the government. Id. When the defendant is the cause of the delay,

the factor is weighted against the defendant. Triplett at 570.

          {¶18} The third factor considers the defendant’s assertion of his or her right

to a speedy trial. “Generally, when the defendant has filed a motion to dismiss

based on speedy trial violations, courts will weigh the third Barker factor in the

defendant’s favor.” State v. Watson, 10th Dist. Franklin No. 13AP-148, 2013-

Ohio-5603, ¶ 29, citing State v. Johnson, 12th Dist. Butler No. CA2011-09-169,

2013-Ohio-856, ¶ 40.        A defendant’s failure to assert the right will make it

difficult for a defendant to prove that he or she was denied a speedy trial. Barker

at 532.

          {¶19} The fourth factor of Barker concerns prejudice.           In assessing

prejudice, the Supreme Court has recognized three interests that the right to a


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speedy trial was designed to protect. Id. Those interests are to: (1) prevent

oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused;

and (3) limit the possibility that the defense will be impaired. Id. “Of these forms

of prejudice, ‘the most serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.’ ” Doggett

at 654, quoting Barker at 532. Impairment of one’s defense is also the most

difficult form of prejudice to prove “because time’s erosion of exculpatory

evidence and testimony ‘can rarely be shown.’ ” Doggett at 655, quoting Barker

at 532.

          {¶20} Here, Stevens had pending charges against him between the four

months when the original complaint was filed and when the State dismissed the

complaint. Further, Stevens argues that there was an additional delay of eight

months between when the State indicted Stevens in July of 2013 and when his jury

trial was scheduled in March of 2014.           Assuming arguendo that we accept

Stevens’ computation of time as true and find that it was presumptively prejudicial

to permit review, Stevens’ argument still fails under the remaining Barker factors.

          {¶21} Stevens contends that the State is to blame for the delay because it

was negligent in failing to send all of Stevens’ computers to BCI for testing. Even

if we agree that the State was negligent, it was not negligent during the time when

an official proceeding was pending against Stevens. Further, Stevens caused the


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delay that occurred during the time when charges were actually pending against

him. For example, the record shows that the State had scheduled Stevens’ trial for

November 5, 2013, in order to avoid violating his statutory right to a speedy trial.

It was Stevens, not the State, who filed a motion for a continuance and

subsequently executed a waiver of his statutory right to a speedy trial.        See

(Docket No. 35). This continuance resulted in the trial being rescheduled for

March 13 and 14, 2014. The four-month delay was caused by Stevens and his trial

counsel, and therefore, this factor weighs against Stevens.

       {¶22} There is no dispute that Stevens filed a motion to dismiss based on

speedy trial violations on October 8, 2013. Because Stevens asserted his right to a

speedy trial, we will weigh Barker’s third factor in Stevens’ favor.

       {¶23} On appeal, Stevens fails to state how he was prejudiced by any

alleged delay by the State. Instead he argues that he does not need to demonstrate

prejudice since courts have found that a delay of 12 months in prosecuting a case

is presumptively prejudicial. Contrary to Stevens’ contention, prejudice is not

always presumed. Usually, a defendant must establish actual prejudice before a

constitutional right to a speedy trial will be recognized. State v. Ollivier, 178

Wash.2d 813, 841 (2013).

       {¶24} Stevens argues that the Supreme Court’s decision in Doggett

supports the proposition that a one year delay is presumptively prejudicial under


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the fourth Barker factor. However, the presumed prejudice Doggett referred to

was in connection with Barker’s fourth factor and is to be distinguished from the

threshold presumption of prejudice that triggers the Barker analysis. Id. at 842, fn.

10. Generally, courts “have found presumed prejudice only in cases in which the

post-indictment delay lasted at least five years.” (Emphasis added.) United States

v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir.2003). Thus, even if we were to

consider the time between the State’s original complaint and the scheduled trial

date, the “delay” would not be lengthy enough to constitute the extreme delay

which warrants the presumption of prejudice. Compare United States v. Toombs,

574 F.3d 1262, 1275 (10th Cir.2009) (22-month delay does not constitute extreme

delay); Serna-Villarreal at 232 (delay of three years and nine months is not

sufficient for presumed prejudice);      with Doggett 505 U.S. at 658 (finding

presumed prejudice after a government-caused delay of six years); United States v.

Cardona, 302 F.3d 494, 499 (5th Cir.2002) (finding presumed prejudice after a

delay of five and one half years); United States v. Brown, 169 F.3d 344, 350 (6th

Cir.1999) (finding presumed prejudice after a five and one half year delay).

Therefore, the burden was on Stevens to prove that he was prejudiced by the

delay.

         {¶25} Here, Stevens was not incarcerated while charges were pending and

his ability to provide a defense was not impaired. He does not claim that any


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defense witnesses had died or disappeared during the delay, nor does Stevens

argue that his memory of the alleged events was impaired due to the passing of

time. Indeed, Stevens had already confessed to police officers that he downloaded

illegal images and that he was the only person who used his computers. Further,

after the State dismissed the complaint against Stevens, he was under no more

stress or anxiety than any other citizen under investigation. See United States v.

Hillegas, 578 F.2d 453, 458 (2d Cir.1978) (“After the Government’s dismissal of

the complaint against him appellant * * * was not subject to public obloquy,

disruption of his employment or more stress than any citizen who might be under

investigation but not charged with a crime.”); Barker 407 U.S. at 534 (finding that

defendant was only minimally prejudiced by having to live “under a cloud of

suspicion and anxiety” for four years). As such, any prejudice was minimal and

this factor weighs against Stevens.

       {¶26} In conclusion, we find that Stevens’ constitutional right to a speedy

trial was not violated. During a significant portion of the “delay” there were no

pending charges against Stevens. Even when there were pending charges against

Stevens, any delay was attributable to him. Lastly, Stevens has not shown, and we

cannot find, that he was prejudiced by any such delay.

       {¶27} Accordingly, we overrule Stevens’ sole assignment of error.




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       {¶28} Having found no error prejudicial to Stevens in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                             Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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