[Cite as State v. Haynes, 2015-Ohio-4582.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                               Nos. 102457, 102458 and 102459




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.

                             CARLOS HAYNES, ET AL.
                                                      DEFENDANTS-APPELLEES




                                             JUDGMENT:
                                              AFFIRMED


                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
            Case Nos. CR-14-582643-C, CR-14-582643-A and CR-14-582643-B

        BEFORE: Keough, J., Celebrezze, A.J., and Jones, J.

        RELEASED AND JOURNALIZED: November 5, 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
       Brett Hammond
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Carlos Haynes

Robert L. Tobik
Cuyahoga County Public Defender
By: Jeffrey Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

For Leon Webb

James E. Valentine
323 Lakeside Avenue, West
Suite 450, Lakeside Place
Cleveland, Ohio 44113

For Teddie L. Douglas

Jaye M. Schlachet
Eric M. Levy
Law Offices of Jaye M. Schlachet
55 Public Square, Suite 1600
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} In these consolidated appeals, plaintiff-appellant, the state of Ohio, appeals

from   the   judgment    of   the   trial   court   dismissing   the   indictments   against

defendants-appellees, Teddie L. Douglas, Carlos Haynes, and Leon Webb. Finding no

merit to the appeal, we affirm.

       {¶2} The indictments charged the defendants with rape, complicity to commit

rape, corruption of a minor, complicity to commit corruption of a minor, and kidnapping

related to the kidnapping and rape of a 13-year-old girl on April 27, 1994.

       {¶3} It is undisputed that the grand jury voted to indict the defendants on April

24, 2014, but the indictments were not filed with the clerk of courts until May 6, 2014. It

is also undisputed that pursuant to R.C. 2901.13, the statute of limitations expired on

April 26, 2014.

       {¶4} Following arraignment and pretrial conferences, the defendants filed

motions to dismiss, asserting that prosecution was barred by the expiration of the statute

of limitations.   After hearings and the filing of post-hearing briefs, the trial court

dismissed the indictments.

       {¶5} R.C. 2901.13, which sets forth Ohio’s statute of limitations for various

crimes, provides that “a prosecution of [kidnapping, rape, and corruption of a minor] is

barred unless it is commenced within twenty years after the offense is committed.”

       {¶6} Under R.C. 2901.13(E),
       A prosecution is commenced on the date an indictment is returned or an
       information filed, or on the date a lawful arrest without a warrant is made,
       or on the date a warrant, summons, citation, or other process is issued,
       whichever occurs first.

       {¶7} Crim.R. 6(F), addresses the “return” of an indictment and states:

       (F) Finding and return of indictment. An indictment may be found only
       upon the concurrence of seven or more jurors. When so found the foreman
       or deputy foreman shall sign the indictment as foreman or deputy foreman.
       The indictment shall be returned by the foreman or deputy foreman to a
       judge of the court of common pleas and filed with the clerk who shall
       endorse the date of filing and enter each case upon the appearance and trial
       dockets * * *.

       {¶8} In its journal entry dismissing the indictments, the trial court reasoned that the

mere finding of an indictment (i.e., the grand jury’s vote to indict) is not equivalent to the

“return” of the indictment because a grand jury’s vote may be changed by subsequent

grand jury actions. The trial court reasoned that the “return” of an indictment requires

some objective act external to the grand jury’s secret proceedings to confirm that the

grand jury’s finding is complete and final. Thus, the trial court held that to be “returned,”

the grand jury’s vote must be conveyed outside the grand jury body to other officials in

the judicial system to trigger fulfillment of their respective responsibilities. The trial

court found that the foreman’s filing of the grand jury’s vote with the clerk of courts is

the first objective act external to the grand jury’s secret proceedings, and, therefore, an

indictment is returned when the grand jury’s vote is filed with the clerk of courts. The

trial court noted, however, that the foreman’s filing with the clerk does not necessarily

mean docketing of the indictment, and that an indictment may be docketed subsequent to

its return to the clerk.
       {¶9} Applying this reasoning, the trial court found that despite multiple hearings,

there was no evidence establishing that the indictments in this case were returned to the

clerk of courts on or before April 26, 2014, the last day of the 20-year statute of

limitations period. Accordingly, the trial court dismissed the indictments as barred by

the statute of limitations.

       {¶10} In its single assignment of error on appeal, the state contends that the trial

court erred in dismissing the indictments because “the indictment was returned when it

was voted upon by the members of the grand jury and the result of that vote was

presented to the clerk.” The state contends that a return of an indictment does not require

filing the indictment, and that “once the indictment is voted upon, true billed, hand signed

by the foreperson, placed in the secret envelope, and brought to the clerk, it is returned.”

The state asserts that the evidence established that grand jury votes are delivered daily to

the clerk’s office, and thus, the state contends that it commenced prosecution in these

cases when the grand jury’s sealed envelope was returned to the clerk of courts on April

24, 2014.

       {¶11} The defendants, on the other hand, although agreeing with the trial court’s

dismissal of the indictments, assert that the indictments were not returned because they

were never returned to a common pleas court judge, as required by Crim.R. 6(F). As

defendants correctly point out, the judge presiding over the grand jury testified that no

indictment was ever returned to her, and there was no evidence presented suggesting that

the indictments were delivered to any other common pleas court judge.
       {¶12} The trial court found that return to a common pleas court judge was not a

necessary event required to find that an indictment has been returned under R.C.

2901.13(E). The trial court reasoned that to hold otherwise would give a judge veto

power over a grand jury’s indictment, and it concluded that Ohio’s procedure allows the

judge overseeing the grand jury to instruct the foreman to present the indictments directly

to the clerk of courts.

       {¶13} We disagree, and find that the return of an indictment requires presentment

to a judge in the common pleas court. As unambiguously stated by the Ohio Supreme

Court, “Crim.R. 6(F) requires that the indictment be returned to the judge of the common

pleas court and filed with the clerk of that court.” State ex rel. Collins v. O’Farrell, 61

Ohio St.3d 142, 145, 573 N.E.2d 113 (1991); see also State v. Rohde, 2d Dist.

Montgomery No. 26087, 2014-Ohio-5580, ¶ 25 (“The return and filing process for

indictments is outlined in Crim.R. 6(F) and R.C. 2939.22. These provisions require the

indictment to be returned by the foreman to the trial court and then filed with the clerk

who must endorse the date of filing.”) Because the indictments in these cases were never

delivered to the judge of the common pleas court who was presiding over the grand jury,

the indictments were not returned and prosecution was not commenced.

       {¶14} Even if we were to assume that an indictment is deemed returned when it is

delivered to the clerk’s office rather than to the judge, there is no evidence that either the

grand jury voting records or the indictments were filed with the clerk’s office on or before

April 26, 2014, the last day of the limitations period.
      {¶15} Kelley Sweeney, director of special projects with the Cuyahoga County

Clerk of Courts, testified that someone from the prosecutor’s office daily brings down

multiple envelopes that contain the grand jury votes, but said the envelopes are not

necessarily of votes that occurred that day. She identified an envelope that contained the

grand jury’s April 24, 2014 votes in these cases, and testified that the envelope had been

brought to the clerk’s office at some point. She said that the date of April 24, 2014, was

handwritten on the envelope, presumably by someone from the prosecutor’s office, but

the April 24, 2014 date did not necessarily mean that the envelope had been delivered to

the clerk’s office on April 24, 2014.      She was unable to specify on what date the

envelope had been delivered to the clerk’s office, and testified that it could have been

delivered on any number of days following April 24, 2014. The envelope was not

stamped or dated in any way by the clerk’s office.

      {¶16} Sweeney said that the actual indictments, which in these cases were

file-stamped May 6, 2014, are delivered to the clerk’s office from the prosecutor’s office

either electronically via computer or by hand, but she could not tell whether the

indictments in these cases had been delivered by hand or electronically.

      {¶17} Sergeant Kevin O’Donnell, supervisor of the criminal records division of

the Cuyahoga County Sheriff’s Department, testified that a clerk from his office picks up

arrest warrants, including arrest warrants after a secret indictment has been opened, from

the clerk’s office once every business day. O’Donnell said that the arrest warrant for

defendant Haynes was issued on May 6, 2014. He said he could not determine when
arrest warrants were issued for defendants Webb and Douglas, but stated that warrants for

all defendants in a secret indictment are usually issued on the same day.

       {¶18} The state bears the burden of establishing that prosecution was commenced

within the applicable limitations period.     State v. Martin, 8th Dist. Cuyahoga No.

100753, 2015-Ohio-761, ¶ 13, citing State v. King, 103 Ohio App.3d 210, 212, 658

N.E.2d 1138 (10th Dist.1995); State v. Mitchell, 78 Ohio App.3d 613, 616, 605 N.E.2d

978 (8th Dist.1992).

       {¶19} The state failed to meet its burden in this case because although it is

undisputed that the grand jury voted to indict the defendants on April 24, 2014, there is no

evidence regarding when the grand jury voting sheets were returned to the clerk’s office.

The state argues that we can assume by its “routine practice” of daily delivering

envelopes containing grand jury votes to the clerk’s office that the envelope containing

the votes to indict in these cases was delivered on April 24, 2014. But Sweeney testified

that the envelopes delivered to the clerk’s office on a certain day do not necessarily

contain that day’s grand jury votes, and that the envelope could have been delivered after

April 24, 2014. The envelope was not stamped or dated in any way by the clerk’s office,

and Sweeney said she could not determine on what date the envelope was delivered.

       {¶20} Likewise, the state offered no evidence regarding when the indictments

were delivered to the clerk’s office. Sweeney testified that the clerk’s office usually

processes indictments the same day it receives them. The first docket entry for all the

defendants is dated May 6, 2014 and states “indicted secret on 5/6/2014.” Sweeney
testified that the prosecutor’s office usually delivers indictments to the clerk’s office

electronically by computer, but the state offered no evidence that the indictments were

electronically delivered in this case, or on what date. Sweeney speculated that because

the indictments were secret, someone from the prosecutor’s office may have

hand-delivered the indictments to the clerk’s office before May 6, 2014, and then the

indictments were unsealed on May 6, 2014, after one of the defendants was taken into

custody pursuant to an arrest warrant. But the state presented no evidence that the

indictments were hand-delivered to the clerk’s office prior to May 6, 2014, and no

evidence that arrest warrants for any of the defendants were issued prior to that date.

       {¶21} Moreover, simply delivering indictments to the clerk’s office is insufficient

to constitute return of the indictments. Under Crim.R. 6(F), an indictment is deemed

returned when all of the following predicate events have occurred: (1) the indictment is

found upon the concurrence of seven or more grand jurors; (2) the foreman or deputy

foreman signs the indictment; (3) the indictment is returned to the judge of the common

pleas court who is supervising the grand jury; and (4) the indictment is filed with the clerk

of courts, who shall endorse thereon the date of filing and enter the case on the

appearance and trial dockets. Thus, the rule is clear that an indictment is not returned

until it is filed with the clerk. Hence, merely delivering the grand jury votes to the

clerk’s office — without delivery to the judge and filing with the clerk — is insufficient

to constitute the return of an indictment. O’Farrell, 61 Ohio St.3d at 145, 573 N.E.2d

113.
       {¶22} In sum, the indictments in these cases were not delivered to the judge

presiding over the grand jury, as required by Crim.R. 6(F) and therefore, the indictments

were never returned and prosecution was not commenced.

       {¶23} In addition, the state failed to provide evidence that the indictments were

filed with the clerk of courts or that arrest warrants were issued on or before April 26,

2014, the last day of the 20-year limitations period. Accordingly, the state failed to

demonstrate that prosecution was timely commenced and therefore, the trial court

properly dismissed the indictments as barred by the statute of limitations.          The

assignment of error is overruled.

       {¶24} Judgment affirmed.

       It is ordered that appellees 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.

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

the Rules of Appellate Procedure.


KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
LARRY A. JONES, SR., J., CONCUR
