[Cite as State v. Powell, 2019-Ohio-4345.]

                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 107276
                 v.                                :

CARLIN POWELL,                                     :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: October 24, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-15-598275-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Mary M. Frey, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Erika Cunliffe, Assistant Public Defender, for appellant.


EILEEN T. GALLAGHER, P.J.:

                   Defendant-appellant, Carlin Powell, appeals from his convictions

following a jury trial. He raises the following assignments of error for review:
        1. Tina Stewart’s testimony detailing evidence collection by a forensic
        scientist who has since been fired for misconduct violated Powell’s right
        to confrontation and the state rules of evidence which bar such hearsay.

        2. Powell’s rights to due process and a fundamentally fair trial were
        compromised by the jury’s improper exposure to evidence of a third
        victim who the state did not call as a witness.

        3. Powell was deprived of his Sixth Amendment right to the effective
        assistance of counsel.

                After careful review of the record and relevant case law, we affirm

Powell’s convictions.

                        I. Procedural and Factual History

                In August 2015, Powell was named in a seven-count indictment,

charging him with rape in violation of R.C. 2907.02(A)(2) (Count 1); kidnapping in

violation of R.C. 2905.01(A)(4) (Count 2); rape in violation of R.C. 2907.02(A)(2),

with a sexually violent predator specification (Count 3); kidnapping in violation of

R.C. 2905.01(A)(4), with sexual motivation and sexually violent predator

specifications (Count 4); rape in violation of R.C. 2907.02(A)(2), with a sexually

violent predator specification (Count 5); corruption of a minor in violation of R.C.

2907.04(A) (Count 6); and kidnapping in violation of R.C. 2905.01(A)(4), with

sexual motivation and sexually violent predator specifications (Count 7). The

indictment stemmed from allegations that Powell sexually assaulted three victims:

(1) M.S., with the offenses occurring on or about September 20, 1997 (Counts 1 and

2); (2) D.E., with the offenses occurring on or about January 15, 1997 (Counts 3 and

4); and (3) A.W., with the offenses occurring on or about November 16, 1998 (Counts

5-7).
               In November 2016, Powell filed a motion to dismiss for preindictment

delay, arguing that he was prejudiced by the unjustifiable delay between the alleged

commission of the offenses and the time he was indicted. Following a hearing, the

trial court denied Powell’s motion to dismiss.           In January 2018, the matter

proceeded to a jury trial.1

               At trial, A.W. testified that when she was 15 years old, she was walking

to school on the morning of November 16, 1998. As she was walking, a vehicle

containing two men pulled up next to her. A.W. testified that she knew the driver of

the vehicle from the neighborhood. A.W. described the driver as a bald man with

brown hair and a beard. She described the passenger as being a dark-skinned man

with dreadlocks. A.W. stated that she was speaking with the driver when she was

suddenly pulled inside the vehicle by the man in the passenger’s seat. A.W. testified

that she was scared and did not feel free to leave the vehicle.

               At some point, A.W. fell asleep while she was inside the vehicle. When

she woke up, A.W. was at an unfamiliar house. A.W. testified that she could not

remember specific details about the house, but recalled seeing people inside who

seemed “drugged up.” A.W. believed that she may have been drugged herself, and

that she remained in the house for “maybe three days.” While inside the home, A.W.

alleged that she was forced to have nonconsensual vaginal sex with the bearded man,

who she identified at trial as being Powell. When A.W. was eventually able to leave



       1 The sexually violent predator specifications associated with Counts 3, 4, 5, and 7
were tried to the bench.
the house, she went to the nearest payphone and called her grandfather. She was

subsequently taken to the hospital where a sexual assault kit was collected. A.W.

recalled the police retrieving her clothing as potential evidence. However, A.W.

could not remember whether she spoke to a police officer about the incident.

               In 2015, A.W. was contacted by Investigator Nicole DiSanto to discuss

the November 1998 incident. During this meeting, A.W. was shown a photo array

by a blind administrator. A.W. testified that she identified Powell’s photograph from

the photo array and wrote that she was “a hundred percent sure” he was the person

who sexually assaulted her.

               During    her    cross-examination,     defense    counsel    thoroughly

questioned A.W. about perceived inconsistencies between her trial testimony and

the statements she initially made to law enforcement and medical personnel. A.W.

was shown a copy of her police report, marked defendant’s Exhibit A. The relevant

inconsistencies between A.W.’s testimony and the information contained in the

police report included (1) A.W.’s description of the vehicle that pulled up beside her,

(2) A.W.’s accounting of the number of individuals inside the vehicle, (3) A.W.’s

description of the vehicle, (4) A.W.’s physical description of the perpetrators (5) the

location of the alleged sexual assault, (6) A.W.’s description of the assault, (7) A.W.’s

accounting of the number of individuals who perpetrated the alleged sexual assault,

and (8) the actions A.W. took before returning home. A.W. testified that she

disagreed with many of the statements contained in the police report, but qualified

her testimony, stating “then again, it happened 20 years ago.”
              Captain Renee Kane of the Cleveland Police Department testified that

at approximately 1:30 a.m. on November 17, 1998, she responded to a missing

persons report filed by A.W.’s mother. Captain Kane stated that she generated a

missing persons report and initiated an investigation to locate A.W., which proved

unsuccessful. However, the Cleveland police were notified on November 19, 1998,

that A.W. was located by her family.

              Retired Cleveland police officer, Matthew Stepic, testified that he

responded to MetroHealth Medical Center for the reported rape of A.W. Officer

Stepic testified that he interviewed A.W. about the incident and collected her sexual

assault kit, which he transported to the police department’s property room. Officer

Stepic then completed a written police report.

              D.E. testified that in January 1997, she met Powell at a convenient

store near the apartment she shared with her sister. After having a conversation and

smoking marijuana together, D.E. and Powell exchanged phone numbers and

agreed to meet up again. Approximately one week later, Powell picked D.E. up in

his vehicle. D.E. stated that Powell had a friend with him in the car. She described

the friend as a white man with curly blonde hair. Powell then drove to a home

located in Cleveland, Ohio. Powell and D.E. went inside the home, while Powell’s

friend remained in the car.

              Once inside the home, D.E. and Powell began smoking marijuana.

D.E. stated that there were two other individuals with them at the time. However,

after a period of time, the other two individuals went upstairs, leaving D.E. and
appellant alone. D.E. testified that Powell suddenly reached over and grabbed her

by the neck. D.E. described the incident as follows:

      I was startled, because I really didn’t know what was going on. And I
      was trying to push him away to stop and he pushed me down. He had
      me by my neck and he had my arms. He was quite bigger than me. And
      I started to try to scream for the other people who were in the house to
      come down and help me. So I began to yell for some help, like “Please
      help me,” you know, “I need help, I need help, I need help.” Nobody
      came. I started to fight with him to try to get him off of me and he just
      kept squeezing harder, and he said that if I kept fighting that he was
      going to hurt me, he was going to beat me up, and he wasn’t going to
      stop. So I kind of relaxed and he started to undress me and also, you
      know, himself, and he began to penetrate me.

      ***

      He had me, he was holding me tightly, and, you know, he told me, “You
      shut the fuck up. You’re not leaving here.” I did not feel that I had a
      choice. So after that had happened and I kept asking him to please stop
      and he told me to shut the fuck up, he hit me in the face and it was done.
      He just got up off of me. And I was sobbing and crying and — I don’t
      really know what I thought was going to happen next. I got up and I
      moved away from him.

               D.E. clarified that Powell held her down and penetrated her vagina

with his penis. When she returned home, D.E. immediately told her sister that she

had been raped and went to the hospital for medical examination, where a sexual

assault kit was completed.

               D.E. testified that a Cleveland police detective arrived at her home the

next day to take a statement. D.E. admitted that she initially told detectives that the

rape occurred inside Powell’s vehicle. D.E. further conceded that she did not tell

detectives about smoking marijuana with Powell. She explained that she did not tell

the police the complete truth because she blamed herself for what happened, did not
want her father to know she was smoking marijuana, and did not want to be “looked

at differently” for going to a place she did not know with a person she had just met.

               Years later, D.E. was contacted by Investigator Nicole DiSanto to

discuss the January 1997 incident. During this meeting, D.E. was shown a photo

array by a blind administrator. D.E. testified that she identified Powell as the person

who sexually assaulted her. D.E. stated that she knew it was Powell “immediately

when [she] saw [the photo array].”

               During    her   cross-examination,     D.E.   was    confronted    with

inconsistencies between her trial testimony and her initial statement to the police

and medical personnel. In relevant part, the records indicated that (1) D.E. stated

that she met Powell at a K-Mart, rather than a local convenience store; (2) D.E.

described the passenger in Powell’s vehicle as a black male; (3) Powell kissed her in

the back seat of the vehicle; and (4) that the sexual assault occurred inside the

vehicle. Defense counsel also referenced D.E.’s criminal history and police records

indicating that D.E. failed to appear for an appointment to further discuss the

incident.

               Retired sex-crimes detective, Sgt. Michael Kmiecik of the Cleveland

Police Department, testified that he conducted a field interview of D.E. in 1997. He

testified that he had no independent recollection of the conversation. However,

having reviewed the police report, Sgt. Kmiecik testified that when the information

gathered from the interview with D.E. was presented to the prosecutor, it was

determined that there was “insufficient evidence to sustain a charge or to have
probable cause to charge anyone at that time.” Accordingly, the file pertaining to

D.E. was marked as “no further investigation leads at this time.” During his cross-

examination, Sgt. Kmiecik testified that in 2007, a follow-up detective reached out

to D.E. “after getting a hit on DNA.” Sgt. Kmiecik stated that the follow-up detective

made contact with D.E. and scheduled an appointment to further discuss her case.

However, D.E. was “a no-show for the appointment” and her case was closed

following a consultation with the prosecutor.

              Nicole DiSanto is employed as an investigator by the Cuyahoga

County Prosecutor’s Office. DiSanto testified that she began investigating the sexual

assault of A.W. after the prosecutor’s office received information linking Powell’s

DNA to the DNA recovered from A.W.’s sexual assault kit. Upon receiving this

information, DiSanto reviewed the original police report and contacted A.W. about

the incident. DiSanto testified that, before discussing the facts and circumstances

of the incident with A.W., a blind administrator presented A.W. with a photo array.

DiSanto stated that A.W. identified Powell as her attacker and confirmed that the

incident was not a consensual encounter.

              DiSanto testified that she also travelled to North Carolina to conduct

a recorded interview with Powell regarding his recollection of A.W. According to

DiSanto, Powell admitted that he “[knew] her from the neighborhood.” However,

he denied having sex with A.W. and stated that he would not have been having sex

with a 15-year old when he was 21-years old.
              DiSanto also testified at trial regarding her investigation of the sexual

assault committed against D.E. She stated that she began investigating the case after

the prosecutor’s office received a DNA hit linking Powell’s DNA to the DNA

recovered from D.E.’s sexual assault kit. Upon receiving this information, DiSanto

interviewed D.E. in April 2015.       During the interview, D.E. was forthright,

emotional, and told DiSanto right away that she had originally lied to the police

about the circumstances of the sexual assault when she was 16-years old. DiSanto

stated that a blind administrator presented D.E. with a photo array and that D.E.

“was able to identify Carlin Powell as her attacker.” DiSanto testified that she also

conducted an interview with Powell regarding his interactions with D.E. DiSanto

testified that Powell stated that he could not remember D.E.’s face. He further

denied having intercourse with D.E.

              When confronted with the DNA evidence obtained from A.W.’s and

D.E.’s sexual assault kits, Powell denied ever raping anyone. However, Powell also

testified that “he was doing drugs and everything and doesn’t remember anything”

from the relevant time period. DiSanto further testified that “as soon as DNA was

brought up, he said, ‘Well, it was on her panties.’” When DiSanto asked why he

would be specific about panties, Powell stated, “Well, because that’s where it would

leak out and that’s where someone’s semen would go if they had sex.” At the

conclusion of the interview, Powell consented to a buccal swab, which was submitted

to the Ohio Bureau of Criminal Investigation for comparison to the evidence

contained in A.W.’s and D.E.’s sexual assault kits.
              Tina Stewart testified that she was formerly employed as a scientific

examiner with the Cleveland Police forensics laboratory. Stewart worked in the

serology section of the forensic laboratory during the time period when D.E.’s and

A.W.’s sexual assault kits and clothing were first analyzed.      Stewart provided

extensive testimony regarding the chain of custody protocol and procedures utilized

by the forensic laboratory.

              Stewart explained that when evidence was delivered to the laboratory

for testing, the evidence was assigned a six-digit number that was unique to that

piece of evidence. A forensic analyst would then generate a “matching [laboratory]

card with the same laboratory number, and on that card would have information

about that evidence.”     Stewart testified that when the forensic analysis was

completed, the results of the testing would be written on the front side of the

corresponding laboratory card. If evidence submitted to the laboratory tested

positive for blood or semen, the evidence would be placed in an individually sealed

envelope, marked with the unique six-digit number previously assigned to that

evidence, and stored in the laboratory in case further testing was required. The

remaining evidence was transported to the Cleveland Police property room.

              Stewart also testified regarding the procedure that was utilized for

testing evidence, including the steps taken to prevent the contamination of evidence.

She explained, in relevant part:

      The analysts changed their gloves between different evidence, and then
      when the evidence was finished being analyzed it would be sealed with
      evidence tape. And also, on the back of the [laboratory] cards we have
      the chain of custody listed where the evidence has been, so we have a
      written copy of where all the evidence has gone.

If evidence came into the laboratory unsealed or with a broken seal, that information

would be noted by the analyst on the laboratory card.

              Regarding D.E.’s case, the state presented Stewart with D.E.’s

forensic laboratory report, marked state’s exhibit No. 25. Stewart testified that

D.E.’s sexual assault kit and clothing were submitted to the laboratory on

January 17, 1998. The evidence was assigned a unique six-digit number. Stewart

testified that state’s exhibit No. 25 is a copy of the laboratory card used by the

analysts to record all pertinent information about the tested evidence. Stewart

explained that the front side of the laboratory card contained the results of the

serology testing and the initials of the analysts who performed the serology testing.

In turn, the back of the card listed the evidence submitted to the laboratory and the

chain of custody log. Stewart then identified each piece of evidence submitted to the

laboratory for testing in D.E.’s case. She also discussed the custodial history of the

relevant evidence by referencing the chain of custody information delineated on the

back of the laboratory card. Stewart clarified that she was not the primary analyst

assigned to conduct the forensic analysis in D.E.’s case.

              Regarding the serology testing performed on the evidence submitted

in A.W.’s case, the state presented Stewart with A.W.’s forensic laboratory report,

marked state’s exhibit No. 26. Stewart testified the A.W.’s rape kit and clothing were

submitted to the laboratory on November 23, 1998. The evidence was assigned a
unique six-digit number. Stewart testified that state’s exhibit No. 26 is a copy of the

laboratory card, which also listed the evidence tested, the results of the serology

testing, and the relevant chain of custody information. Stewart identified the

evidence that was submitted to the laboratory for testing and discussed the custodial

history of the relevant evidence by referencing the chain of custody information

delineated on the back of the laboratory card. Stewart confirmed that she did not

perform the serology testing in A.W.’s case.

               During her cross-examination, Stewart was questioned extensively

about the possibility of evidence being contaminated due to the procedures used in

1998 that are no longer standard practice. For instance, Stewart conceded that the

laboratory received most of D.E.’s hospital clothing in a single bag. While Stewart

indicated that D.E.’s underwear was stored separately, she agreed that placing all of

D.E. remaining clothing in one bag would not comply with current standard

procedures. In addition, Stewart admitted that the laboratory reports did not

specify the tests that were performed on the evidence collected. Stewart was also

questioned at length about the primary analyst who worked on both D.E. and A.W.’s

cases. Stewart testified that the analyst, J.M.S., was subsequently fired, then

reinstated, by the laboratory “because they thought he did an error with one of his

statistics,” resulting in the reversal of a criminal conviction in an unrelated case.

               During her direct examination, Stewart did not provide any testimony

regarding the results of the serology testing that was performed in each case.

However, during her cross-examination, Stewart was asked for the first time to
discuss the results of the testing in D.E.’s case. Relevant to this appeal, Stewart

confirmed that D.E.’s vaginal swabs tested negative for semen and blood; her vaginal

smear slides tested negative for spermatozoa; the “outside area of rear of blue and

black panties” tested positive for seminal fluid; and the “seat area of jeans, stain on

right front leg of jeans” tested positive for seminal fluid. On redirect examination,

Stewart reiterated the results of D.E.’s serology tests and explained the nature of the

forensic tests that were performed in each case.

               Heather Bizub, a DNA analyst for the Bureau of Criminal

Identification, testified that she compared the DNA derived from Powell’s buccal

swab to the biological evidence extracted from D.E.’s sexual assault kit and the

clothing collected from her at the hospital. Her findings were reduced to a DNA

report, dated September 11, 2015. Bizub testified that D.E.’s vaginal swab contained

a mixture of DNA, with D.E. being a major contributor, as well as male DNA.

However, Bizub explained that the data was insufficient for her to make a

comparison or draw a conclusion regarding the male contributor. Thus, Bizub

stated that she could not provide an opinion as to whether Powell was the minor

contributor. Regarding bodily fluid extracted from a cutting of D.E.’s underwear,

Bizub testified that Powell was identified as the sole contributor. She stated, to a

reasonable degree of scientific certainty, that the frequency of a similar DNA

appearing was one in 27 quadrillion-60 trillion unrelated individuals.

               Bizub testified that she was also involved in the DNA testing

performed on the evidence submitted in A.W.’s case.           Bizub stated that she
compared the DNA derived from Powell’s buccal swab to the biological evidence

extracted from A.W.’s sexual assault kit. Her findings were reduced to a DNA report,

dated September 14, 2015. Bizub testified that an anal sample taken from A.W.

contained a mixture of DNA, with A.W. being a major contributor. The sample

contained male DNA, but the profile was insufficient for Bizub to render a

conclusion about the source of the minor contributor. However, Bizub testified that

she identified Powell as a contributor to the seminal fluid mixture extracted from

A.W.’s pubic hair combings, a vaginal swab, and two separate skin swabs. Bizub

stated, to a reasonable degree of scientific certainty, that for the pubic hair combings

the frequency of a similar DNA appearing was one in 533 trillion unrelated

individuals. For the vaginal swab, the frequency was one in 36 quintillion-310

quadrillion unrelated individuals. For the first skin swab, the frequency was one in

36 quintillion unrelated individuals. Finally, for the second skin swab, the frequency

was one in 36 quintillion-310 quadrillion unrelated individuals.

               M.S. did not appear for trial. Accordingly, the trial court granted the

state’s motion to dismiss Counts 1 and 2 of the indictment, which correlated to the

conduct alleged to have been committed against M.S. Defense counsel rested

without presenting any witnesses.

               At the conclusion of trial, the jury found Powell guilty of Count 3, the

rape of D.E.; Count 4, the kidnapping of D.E., with the sexual motivation

specification; and Count 6, corruption of a minor involving A.W. Powell was found

not guilty of the rape and kidnapping offenses alleged to have been committed
against A.W. The trial court further found Powell not guilty of the sexually violent

predator specifications that were attached to Counts 3 and 4.

               At the sentencing hearing, the trial court found that the rape and

kidnapping offenses committed against D.E. were allied offenses of similar import.

The state elected to proceed with sentencing on the rape offense, and the trial court

imposed a nine-year term of imprisonment. The trial court then imposed an 18-

month term of imprisonment on the corruption of a minor offense, to run

consecutively to the rape offense, for an aggregate prison term of 10 years and six

months.

               Powell now appeals from his convictions.

                              II. Law and Analysis

                  A. Hearsay and the Confrontation Clause

               In his first assignment of error, Powell argues Tina Stewart’s

testimony relied on hearsay statements and violated his right to confrontation. He

contends that Stewart’s testimony was not based on her own personal knowledge,

and relied on reports that “lacked the trustworthiness required for admissibility

under Evid.R. 803(6).”

               Powell did not object to Stewart’s testimony or the admission of the

forensic lab records, marked state’s exhibits Nos. 25 and 26. He has therefore

waived all but plain error. Under Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” “Plain error exists when it can be said that but for the error, the outcome
of the trial would clearly have been otherwise.” State v. Issa, 93 Ohio St.3d 49, 56,

752 N.E.2d 904 (2001), citing State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d

894 (1990).

               The Confrontation Clause of the Sixth Amendment to the United

States Constitution, made applicable to the states through the Fourteenth

Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right * * * to be confronted with the witnesses against him.” Further, Section 10,

Article I of the Ohio Constitution provides that “[i]n any trial, in any court, the party

accused shall be allowed * * * to meet the witnesses face to face * * *.”

               “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless

it falls within one of the exceptions listed in Evid.R. 803. Whenever the state seeks

to introduce hearsay into a criminal proceeding, the court must determine not only

whether the evidence fits within an exception, but also whether the introduction of

such evidence offends an accused’s right to confront witnesses against him. State v.

Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29.

               The Confrontation Clause prohibits the admission of an out-of-court

statement of a witness who does not appear at trial if the statement is testimonial,

unless the defendant has had an opportunity to cross-examine the witness.

Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004). “Testimonial” statements generally include hearsay statements “‘made
under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.’” Id. at 52, quoting the

amicus brief of the National Association of Criminal Defense Lawyers. In

determining whether a statement is testimonial for purposes of the Confrontation

Clause, “‘courts should focus on the expectation of the declarant at the time of

making the statement; the intent of a questioner is relevant only if it could affect a

reasonable declarant’s expectations.’” State v. Thomas, 8th Dist. Cuyahoga No.

101202, 2015-Ohio-415, ¶ 21, quoting State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-

5482, 855 N.E.2d 834, paragraph two of the syllabus.

               The Confrontation Clause does not bar the admission of hearsay

statements that are not testimonial. State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-

5637, 876 N.E.2d 534, ¶ 21. Indeed, where nontestimonial hearsay is at issue, the

Confrontation Clause is not implicated and need not be considered. Whorton v.

Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.E.2d 1 (2007).

               In this case, the challenged testimony concerns Stewart’s references

to the forensic laboratory reports generated in each case. The exhibits contain a

photocopy of the front and back of the laboratory cards described by Stewart during

her direct examination. The front side of the card, labeled “Forensic Laboratory

Report,” lists, in relevant part (1) the name of the victim, (2) a general description of

the evidence submitted for testing, (3) the six-digit number assigned to the evidence,

(4) the date the evidence was submitted to the laboratory, (5) the results of the

forensic testing, and (6) the initials of the analyst or analysts who performed the
forensic testing. In turn, the back side of the card provides a detailed description of

each piece of evidence submitted for testing, and lists the chain of custody history of

the evidence, including dates and signatures that correspond to when, where, and

by whom the evidence was moved. Significantly, the forensic laboratory report was

generated before Powell was identified as a suspect. Thus, the report does not

identify Powell as the source of the seminal fluid discovered in each case.

               On appeal, Powell asserts that Stewart “did not personally examine

any of the physical evidence, nor did she come to any independent conclusion

therefrom.” Referencing the scientific conclusions reached in each laboratory

report, Powell contends he was unconstitutionally prevented from cross-examining

the lead analyst, J.M.S., about the testimonial “analyses and conclusions he

reached” in each case.     Thus, Powell argues the trial court circumvented his

constitutional right to confrontation by permitting Stewart to authenticate the

laboratory records.

               For the purposes of clarity, we begin our analysis by addressing the

admissibility of the information contained on the front side of each forensic

laboratory card, including the results of the serology tests performed in each case.

Relevant to this issue are several decisions rendered by the United States Supreme

Court.

               In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174

L.Ed.2d 314 (2009), the trial court admitted into evidence three “certificates of

analysis” setting forth “the results of forensic analysis which showed that material
seized by the police and connected to the defendant was cocaine.” Melendez-Diaz,

557 U.S. at 307, 308. The trial court admitted the notarized certificates, without live

testimony, “pursuant to state law as prima facie evidence of the composition, quality,

and the net weight of the narcotic analyzed.” Id. at 309. After he was convicted, the

defendant appealed, arguing “that admission of the certificates violated his Sixth

Amendment right to be confronted with the witnesses against him.” Id.

               In a five-to-four decision, the United States Supreme Court reversed

the defendant’s conviction, holding that the notarized certificates fell “within the

core class of testimonial statements” because they were “quite plainly affidavits:

declarations of facts written down and sworn to by the declarant before an officer

authorized to administer oaths.” Id. at 310 The court explained that the analysts’

affidavits were introduced into evidence for the purpose of proving the truth of what

they asserted, specifically that the substance in question contained cocaine:

      The fact in question is that the substance found in the possession of
      Melendez-Diaz * * * was, as the prosecution claimed, cocaine — the
      precise testimony the analysts would be expected to provide if called at
      trial. The “certificates” are functionally identical to live, in-court
      testimony, doing “precisely what a witness does on direct
      examination.”

Id. at 310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165

L.Ed.2d 224 (2006). Thus, “[a]bsent a showing that the analysts were unavailable

to testify at trial and that [the defendant] had a prior opportunity to cross-examine

them, [he] was entitled to ‘be confronted with’ the analysts at trial.” Id. at 311,

quoting Crawford, 541 U.S. 36, at 54, 124 S.Ct. 1354, 158 L.Ed.2d 177. The court
further rejected the respondent’s argument that the analysts’ affidavits are

admissible without confrontation because they are “akin to the types of official and

business records admissible at common law.” The court stated, in relevant part:

      Whether or not [the affidavits] qualify as business or official records,
      the analysts’ statements here — prepared specifically for use at
      petitioner’s trial — were testimony against petitioner, and the analysts
      were subject to confrontation under the Sixth Amendment.

Id. at 324.

               In Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180

L.Ed.2d 610 (2011), the Supreme Court was confronted with a situation where one

forensic analyst prepared and certified a report determining the defendant’s blood-

alcohol concentration, but another analyst, who was not involved in the analysis of

the defendant’s blood, introduced the report at trial. Although the witness was a

“knowledgeable representative of the laboratory” who could “explain the lab’s

processes and the details of the report,” id. at 2723 (Kennedy, J., dissenting), the

majority held that the surrogate witness was not a proper substitute for the analyst

who had conducted the test. Thus, the Supreme Court found the admission of the

evidence to be a violation of the confrontation clause, stating:

      The question presented is whether the Confrontation Clause permits
      the prosecution to introduce a forensic laboratory report containing a
      testimonial certification — made for the purpose of proving a particular
      fact — through the in-court testimony of a scientist who did not sign
      the certification or perform or observe the test reported in the
      certification. We hold that surrogate testimony of that order does not
      meet the constitutional requirement. The accused’s right is to be
      confronted with the analyst who made the certification, unless that
      analyst is unavailable at trial, and the accused had an opportunity,
      pretrial, to cross-examine that particular scientist.
Id. at 2710.

               Shortly after Bullcoming, the Supreme Court decided Williams v.

Illinois, 567 US. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), a divided opinion that

involved a rape prosecution. At trial, an expert testified she obtained a DNA profile

report from an independent lab based on a semen specimen taken from a vaginal

swab of the victim. The lab report was not introduced into evidence, but the expert

testified she compared the DNA profile contained in the lab report to the defendant’s

recorded DNA profile and concluded it was a match. The defendant challenged the

expert’s testimony that relied upon the lab report on the basis the report’s admission

without testimony from its author violated the Confrontation Clause.

               The plurality opinion relied in part on Federal Rule of Evidence 703

and held, “[o]ut-of-court statements that are related by the expert solely for the

purpose of explaining the assumptions on which that opinion rests are not offered

for their truth and thus fall outside the scope of the Confrontation Clause.” Id. at

58. Alternatively, the plurality applied the primary purpose test to conclude the

underlying lab report was itself nontestimonial, and thus beyond the reach of the

Confrontation Clause, because the report did not identify the defendant, was not

inherently inculpatory, and was created “before any suspect was identified.” Id. The

report “was sought not for the purpose of obtaining evidence to be used against

petitioner, who was not even under suspicion at the time, but for the purpose of

finding a rapist who was on the loose.” Id. The plurality thus opined the lab report

differed from the certificates of analysis and reports disputed in Melendez-Diaz and
Bullcoming, which were created for the sole purpose of providing evidence against

a particular defendant and were used to establish the truth of the matter asserted.

Id. at 2242.

               In this case, it is undisputed that Stewart was not the primary analyst

in either case and, in fact, had no involvement in the forensic analysis performed in

A.W.’s case. With that said, however, we find the nature and scope of Stewart’s

testimony to be distinguishable from evidence challenged in Melendez-Diaz and

Bullcoming. As noted in Melendez-Diaz, “it is the obligation of the prosecution to

establish the chain of custody for evidence sent to testing laboratories — that is, to

establish ‘the identity and integrity of physical evidence by tracing its continuous

whereabouts.’” Id., 557 U.S. 305, at 335, 129 S.Ct. 2527, 174 L.Ed.2d 314 (Kennedy,

J., dissenting). Here, the state’s sole purpose of presenting Stewart as a prosecution

witness was to authenticate the laboratory’s chain of custody records. Significantly,

Stewart provided no testimony during her direct examination regarding the nature

of the serology tests performed or the scientific conclusions reached by the lead

forensic analyst in each case.

               Under these circumstances, we find Stewart’s testimony, and her

reliance on the challenged forensic reports, was not offered for the truth of the

scientific conclusions reached by other analysts in the forensic laboratory. As stated,

Stewart provided no testimony during her direct examination regarding the results

of the serology tests performed in each case, nor did she offer an opinion regarding

the scientific accuracy of those results. In addition, there is no indication in this
record to suggest the challenged forensic laboratory reports were published to the

jury during Stewart’s testimony. Thus, information concerning the presence of

seminal fluid on clothing submitted in D.E.’s case had not been provided to the jury

until defense counsel questioned Stewart about the specific results of the forensic

testing during her cross-examination. Defense counsel thus invited the testimony

now complained of on appeal. State v. Seiber, 56 Ohio St.3d 4, 17, 564 N.E.2d 408

(1990) (“A party cannot take advantage of an error he invited or induced.”).

               It is evident that defense counsel questioned Stewart about the

results of the serology testing in an effort to (1) challenge the reliability of J.M.S.’s

laboratory work, and (2) suggest the seminal fluid discovered on D.E.’s clothing was

caused by cross-contamination and/or inadequate testing procedures. This was a

strategic decision by defense counsel that intended to challenge the weight of the

subsequent DNA evidence. Nevertheless, any potential hearsay or confrontation

arguments concerning Stewart’s testimony about the nature of the serology tests

performed, or the scientific conclusions rendered in the forensic laboratory reports,

was invited error. The challenged exhibits were only offered into evidence after

defense counsel opened the door, thereby permitting the state to further develop the

record about the results of the serology testing performed by Stewart’s colleagues.

               Moreover, even if we were to conclude that the trial court’s admission

of the serology results violated Evid.R. 803 and/or the Confrontation Clause, Powell

has not demonstrated plain error. The results of the serology testing were minimally

probative when compared to the subsequent DNA testing that identified Powell as a
contributor to the DNA profiles discovered in the victim’s biological evidence.

Notwithstanding his references to the lead analysts’ past misconduct in an unrelated

case, Powell has provided no basis to conclude that the laboratory’s custodial and

testing procedures compromised the integrity or accuracy of the subsequent DNA

analysis.

               With respect to the admission of the remaining portions of the

forensic laboratory report, including the inventory of evidence and chain of custody

log reflected on the back side of the laboratory card, we find no error.

               Evid.R. 803(6) creates a hearsay exception for “records of regularly

conducted activity.” This rule excepts business records from exclusion at trial if they

are made in the course of a regularly conducted business activity “because the courts

presume that such records are trustworthy given the self-interest to be served by the

accuracy of such entries.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-

Ohio-4047, ¶ 21, citing Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d 245

(1947).

               In order to qualify for the business-records exception, a record must

meet the following criteria (1) the record must be one recorded regularly in a

regularly conducted activity; (2) a person with knowledge of the act, event, or

condition recorded must have made the record; (3) it must have been recorded at or

near the time of the act, event, or condition; and (4) the party who seeks to introduce

the record must lay a foundation through testimony of the record custodian or some

other qualified witness. State v. Boiani, 8th Dist. Cuyahoga No. 98314, 2013-Ohio-
1342, ¶ 29, citing State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31,

¶ 171.

                 The phrase “other qualified witness” does not necessarily mean that

the witness must have firsthand knowledge of the transaction giving rise to the

record. State v. Sherrills, 8th Dist. Cuyahoga No. 89844, 2008-Ohio-1950, ¶ 31;

citing State v. Vrona, 47 Ohio App.3d 145, 547 N.E.2d 1189 (9th Dist.1988).

         Rather, it must be demonstrated that the witness is sufficiently familiar
         with the operation of the business and with the circumstances of the
         record’s preparation, maintenance, and retrieval, that he can
         reasonably testify on the basis of this knowledge that the record is what
         it purports to be, and that it was made in the ordinary course of
         business consistent with the elements of Rule 803(6).

Sherrills at id., citing State v. Shaheen, 3d Dist. Hancock No. 5-97-03, 1997 Ohio

App. LEXIS 3487 (July 29, 1997); State v. Patton, 3d Dist. Allen No. 1-91-12, 1992

Ohio App. LEXIS 997 (Mar. 5, 1992).

                 Based on Stewart’s experience and knowledge concerning the

procedures and standards followed by the forensic laboratory, we find no abuse of

discretion in allowing her, a qualified witness, to identify and authenticate the

itemized list of submitted evidence and the chain of custody logs. Here, Stewart

provided extensive testimony concerning her employment history in the serology

department of the forensic laboratory. Stewart stated that she worked in the

department at the time the evidence pertaining to the victims was submitted to the

laboratory, and had firsthand knowledge of the laboratory’s custodial procedures

and chain-of-custody protocol. During her direct examination, Stewart explained
how evidence is received, maintained, and cataloged in the laboratory’s ordinary

course of business. Stewart described the methods utilized by the forensic analysts

to prevent evidence contamination, and generally described the type of information

that would be chronicled by the analyst in the laboratory report. Regarding the

reports generated in A.W.’s and D.E.’s cases, Stewart discussed the scope of the

information set forth in each report and stated that the information was

contemporaneously recorded in the laboratory’s regular course of business.

              In an effort to challenge the trustworthiness of the relevant records,

Powell again relies on Stewart’s testimony that the primary analyst, J.M.S., was fired

from the laboratory after a rape conviction was reversed due to his statistical error.

However, Evid.R. 803(6) contemplates the trustworthiness of specific exhibits at the

time they were made. Bank of N.Y. Mellon v. Broyles, 7th Dist. Mahoning No. 16-

MA-0093, 2018-Ohio-357, ¶ 16. Here, the circumstances relied upon by Powell

provide no basis to suggest that the itemized list of evidence or the chain-of-custody

logs were inaccurate or fraudulently maintained. A conclusion to the contrary would

require this court to rely on speculative arguments concerning J.M.S.’s character

and past actions in an unrelated case.

              Accordingly, we find no error in the acceptance of Stewart’s testimony

or the court’s admission of the corresponding records. The chain of custody logs

constituted reliable, nontestimonial hearsay that qualifies for the business-record

exception under Evid.R. 803(6). In addition, we find no Confrontation Clause

violation. We recognize that whether a business record meets a hearsay exception
is immaterial in regard to the Confrontation Clause; it is the nontestimonial

character of the record that removes it from the purview of the Confrontation

Clause. As the United States Supreme Court has explained:

       Business and public records are generally admissible absent
       confrontation not because they qualify under an exception to the
       hearsay rules, but because — having been created for the
       administration of an entity’s affairs and not for the purpose of
       establishing or proving some fact at trial — they are not testimonial.

       Melendez-Diaz, 557 U.S. 305, at 324, 129 S.Ct. 2527, 174 L.Ed.2d 314
       (2009). However, in this case, the list of evidence and chain of custody
       logs were not prepared for the purpose of proving a fact at trial. Indeed,
       the evidence logs do not purport to prove any fact necessary to the
       conviction. Rather, the information was documented by the laboratory
       in an effort to catalog the evidence in a secure and reliable fashion.

               Powell’s first assignment of error is overruled.

                           B. State’s References to M.S.

               In his second assignment of error, Powell argues his “rights to due

process and a fundamentally fair trial were compromised by the jury’s improper

exposure to evidence of a third victim who did not testify at trial.” Powell contends

that the state’s use of evidence relating to M.S. amounted to prosecutorial

misconduct that deprived him of his constitutional right to a fair trial.

               In this case, the record reflects that the state alluded to the allegations

of rape and kidnapping committed against M.S. during voir dire, expressing to the

jury that three rapes occurred in three different years. In addition, the prosecution

described the factual circumstances supporting the charges relating to M.S. during

its opening statements and indicated that the jury would be hearing from each of the

three victims during the trial. Finally, the record reflects that the state elicited direct
examination testimony from Tina Stewart regarding her involvement in M.S.’s case.

However, before Stewart was permitted to testify about M.S.’s rape kit, which was

submitted to the forensic laboratory on September 27, 1995, the trial court

prevented further testimony regarding M.S. and her rape kit until “M.S. makes

herself available.”

               On appeal, Powell argues the prosecution’s repeated references to

M.S. amounted to prosecutorial misconduct, as the state had reason to believe that

M.S. would not appear as a witness.         According to Powell, “the information

surrounding M.S. * * * unjustifiably bolstered the evidence supporting the other

rape allegations,” and “allowed the state to establish a pattern where they otherwise

could not have done so.”

               “The test for prosecutorial misconduct is whether the prosecutor’s

remarks were improper and, if so, whether they prejudicially affected the substantial

rights of the accused. The touchstone of analysis is the fairness of the trial, not the

culpability of the prosecutor.” State v. Eisermann, 8th Dist. Cuyahoga No. 100967,

2015-Ohio-591, ¶ 43. Prosecutorial misconduct constitutes reversible error only in

rare cases. State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993).

               Under the circumstances presented in this case, we find the state’s

references to M.S. during trial did not amount to prosecutorial misconduct that

deprived Powell of his constitutional rights to due process and a fair trial. Following

the state’s attempt to question Stewart about her involvement in M.S.’s case, an

extensive conversation was held outside the presence of the jury. At that time, the
state admitted that M.S. had missed her scheduled flight and was not in Cuyahoga

County. However, the prosecutor indicated that the state intended to work with

M.S. to reschedule her flight before the trial concluded. Thus, at the time the vague

references to M.S. were made, the prosecutor had a good-faith basis to expect M.S.

would appear and testify at trial. Once it became apparent that the victim would not

appear for trial, the state properly dismissed the counts related to M.S. Moreover,

the record reflects that the trial court sufficiently protected Powell’s constitutional

rights and presumption of innocence by preventing the state from developing

specific testimony regarding the allegations of sexual assault committed against

M.S. until she appeared for trial.

               Powell’s second assignment of error is overruled.

                      C. Ineffective Assistance of Counsel

               In his third assignment of error, Powell argues defense counsel

rendered ineffective assistance of counsel by (1) failing to seek severance of the three

separate sexual misconduct incidents, and (2) failing to renew or file a motion to

dismiss this prosecution for preindictment delay that more specifically alleges the

evidence lost as a result of the delay.

               To establish a claim for ineffective assistance of counsel, Powell must

show that his trial counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989). To establish prejudice, the defendant must demonstrate there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland at 694.

              In evaluating a claim of ineffective assistance of counsel, a court must

give great deference to counsel’s performance. Id. at 689. “A reviewing court will

strongly presume that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” State v.

Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy

or tactical decisions cannot form the basis for a claim of ineffective counsel.” State

v. Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v.

Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Additionally, the failure to do

a futile act cannot be the basis for claims of ineffective assistance of counsel, nor

could such a failure be prejudicial. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-

Ohio-1228, at ¶ 37. We separately address each allegation of ineffective assistance

of counsel.

                                   1. Severance

              Initially, Powell argues defense counsel rendered ineffective

assistance of counsel by failing to file a motion to sever the charges involving each

victim so that there would be separate trials. Powell contends that “if counsel had

moved to sever the offenses, the motion would have been granted because he was

prejudiced by the joinder.”     He further asserts that “there was a reasonable

probability that the verdict would have been different had a motion to sever been

made.”
      To determine whether defense counsel was ineffective for failing to
      request severance, we consider whether the failure to file a motion to
      sever was deficient and, if so, whether Powell was prejudiced by this
      failure. This analysis, in turn, is based on whether joinder was
      appropriate in the first place.

State v. Ford, 8th Dist. Cuyahoga No. 106394, 2018-Ohio-5169, ¶ 29.

              Crim.R. 8(A) governs the joinder of offenses in a single indictment.

Under Crim.R. 8(A), two or more offenses may be charged together if the offenses

“are of the same or similar character, or are based on the same act or transaction, or

are based on two or more acts or transactions connected together or constituting

parts of a common scheme or plan, or are part of a course of criminal conduct.”

              The law favors joining multiple offenses in a single trial if the

requirements of Crim.R. 8(A) are satisfied. State v. Diar, 120 Ohio St.3d 460, 2008-

Ohio-6266, 900 N.E.2d 565. “[J]oinder and the avoidance of multiple trials [are]

favored for many reasons, among which are conserving time and expense,

diminishing the inconvenience to witnesses and minimizing the possibility of

incongruous results in successive trials before different juries.” State v. Torres, 66

Ohio St.2d 340, 421 N.E.2d 1288 (1981). See also State v. Schiebel, 55 Ohio St.3d

71, 86-87, 564 N.E.2d 54 (1990); State v. Schaim, 65 Ohio St.3d 51, 58, 600 N.E.2d

661 (1992).

              Under Crim.R. 14, however, the trial court may grant a severance, if it

appears that the defendant would be prejudiced by the joinder. The defendant bears

the burden of proving prejudice. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-

1507, 824 N.E.2d 959, ¶ 29.
               The state can refute a defendant’s claim of prejudice by joinder of

multiple offenses in two ways (1) a showing that the evidence of each crime is simple

and direct (the “joinder test”) or (2) evidence of the other crimes would be

admissible even if the counts were severed (the “other acts” test). State v. Lott, 51

Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). When the evidence is “simple and

direct,” an accused is not prejudiced by joinder regardless of the nonadmissibility of

evidence of the crimes as other acts under Evid.R. 404(B). Id. Thus, if the state can

meet the requirements of the “joinder test,” it need not meet the requirements of the

stricter “other acts test.” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and

100899, 2015-Ohio-1013, ¶ 66, citing State v. Franklin, 62 Ohio St.3d 118, 122, 580

N.E.2d 1 (1991).

               “Simple and direct” evidence means the evidence of each crime is “so

clearly separate and distinct as to prevent the jury from considering evidence of [one

crime] as corroborative as the other.” State v. Belle, 8th Dist. Cuyahoga Nos. 107046

and 107300, 2019-Ohio-787, ¶ 25, citing State v. Quinones, 11th Dist. Lake No.

2003-L-015, 2005-Ohio-6576, ¶ 48. Evidence is “simple and direct” if the trier of

fact is capable of segregating the proof required for each offense. Belle at id., citing

State v. Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 937 N.E.2d 136, ¶ 39 (10th

Dist.).

               The object of the “simple and direct” test is to prevent the jury from

improperly considering evidence of various crimes as corroborative of each other.

State v. Echols, 128 Ohio App.3d 677, 694, 716 N.E.2d 728 (1st Dist.1998). However,
“[a] trier of fact is believed capable of segregating the proof on multiple charges

when the evidence as to each of the charges is uncomplicated.” State v. Lunder, 8th

Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33. Thus, “Ohio appellate courts

routinely find no prejudicial joinder where the evidence is presented in an orderly

fashion as to the separate offenses or victims without significant overlap or

conflation of proof.” State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-

5138, ¶ 16, citing State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225,

2010-Ohio-4202, ¶ 33.

               After careful consideration, we are unable to conclude that defense

counsel rendered ineffective assistance of counsel by failing to file a motion to sever.

Here, the allegations of sexual assault in each case relied on testimony and DNA

evidence that was simple and direct. See Echols, 8th Dist. Cuyahoga No. 102504,

2015-Ohio-5138, at ¶ 19 (“[DNA] evidence, although scientific in nature and

presented through expert testimony, is simple in its application.”). While the

prosecution introduced extensive testimony regarding the investigation and

forensic analysis performed in each case, the record reflects that the state’s witnesses

discussed the evidence relating to each victim separately, succinctly, and without

significant overlap or conflation of proof.

               Viewed collectively, there was little danger that the jury would

confuse the evidence or improperly consider the evidence of each victim’s

accusations as corroborative of the others. Indeed, although Powell was found guilty

for the rape and kidnapping of D.E., the jury found him not guilty of the rape and
kidnapping charges associated with A.W. This reflects the jury’s ability to segregate

the proof required in each case. See State v. Lee, 8th Dist. Cuyahoga No. 104682,

2017-Ohio-1449, ¶ 19 (the evidence was “simple and direct” as reflected by the jury

acquitting the defendant of offenses relating to one of the several shootings); State

v. Bonneau, 8th Dist. Cuyahoga No. 97565, 2012-Ohio-3258, ¶ 22 (the jury’s not

guilty verdict as to the counts relating to one victim and its guilty verdicts as to the

counts relating to another demonstrated that the jury was able to separate the

evidence and considered each victim separately); State v. Nitsche, 2016-Ohio-3170,

66 N.E.3d 135, ¶ 95 (8th Dist.) (defendant could not show prejudice from joinder as

he was acquitted of one charge); and State v. Shivers, 8th Dist. Cuyahoga No.

106601, 2018-Ohio-5174.

               Because we find that joinder was appropriate in this case, we reject

Powell’s argument that he was prejudiced by his counsel’s failure to request a

severance.

                             2. Preindictment Delay

               Powell further contends that defense counsel rendered ineffective

assistance of counsel by failing to renew Powell’s motion to dismiss based on

preindictment delay.

               Here, Powell must demonstrate that his trial counsel performed

deficiently by failing to raise the issue of preindictment delay, and that there was a

reasonable probability of success had his counsel timely presented that issue to the
trial court. State v. Mack, 101 Ohio St.3d 397, 2004-Ohio-1526, 805 N.E.2d 1108, ¶

31.

               Preindictment delay violates due process only when it is unjustifiable

and causes actual prejudice. State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69

N.E.3d 688, ¶ 12. The Ohio Supreme Court has established a burden-shifting

framework for analyzing preindictment delay due process claims. State v. Whiting,

84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). Under this framework, a defendant

is first required to present evidence of actual prejudice; if actual prejudice is

established, the burden shifts to the state to produce evidence of a justifiable reason

for the delay. Id.

               The mere “possibility that memories will fade, witnesses will become

inaccessible, or evidence will be lost is not sufficient to establish actual prejudice,”

because those are manifestations of the prejudice inherent in any delay. State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 105, citing United

States v. Marion, 404 U.S. 307, 326, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However,

the Supreme Court of Ohio has rejected the argument that “any claim of actual

prejudice based on the death of a potential witness is too speculative to succeed

unless the defendant can establish precisely what that witness would testify to and

that the testimony would be directly exculpatory.” State v. Jones, 148 Ohio St.3d

167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 27. Instead, courts are to undertake a case-

by-case consideration of the relevance of the lost evidence and its purported effect
on the defense. Id., citing State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775

N.E.2d 829, ¶ 52.

              “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 at

¶ 28, citing State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984). The

Luck court found that the grounds set forth by the defense in that case — deaths of

witnesses, the fading of memories, and the loss of evidence — “when balanced

against the other admissible evidence” established that the defendant suffered

actual prejudice. Luck at 157-158.

              On appeal, Powell asserts that defense counsel’s motion to dismiss for

preindictment delay was “simply too general” and was premised on a deficient

investigation into “who was present before, during and after the respective incidents

and whether they would be available for trial.” Powell suggests that “had counsel

done even a modicum of leg work in advance,” counsel would have established

actual prejudice and had “a colorable motion to dismiss for preindictment delay.”

              After careful consideration of the record and the arguments originally

set forth in counsel’s motion to dismiss for preindictment delay, we find nothing in

this record to support Powell’s position that he was prejudiced by unavailable

testimony. Without identifying specific individuals or the potential nature of their

lost testimony, Powell broadly asks this court to “infer” that there are potentially

exculpatory witnesses who are no longer available due to the delayed indictment.
However, the record is silent on this issue. Thus, this court has no information to

support Powell’s inference that potential defense witnesses have been lost.

Moreover, Powell’s argument concerning the adequacy of counsel’s investigation is

equally speculative. Presuming defense counsel exercised reasonable professional

judgment, we find nothing in this record to suggest defense counsel did not

investigate the availability of all witnesses who might have bolstered Powell’s

defense or minimized the impact of the state’s evidence.

               Under the totality of the circumstances presented in this case, we are

unable to conclude that counsel rendered ineffective assistance of counsel by failing

to renew or supplement the motion to dismiss for preindictment delay.

               Powell’s third assignment of error is overruled.

               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 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
MICHELLE J. SHEEHAN, J., and
RAYMOND C. HEADEN, J., CONCUR
