[Cite as State vs. Bourn, 2019-Ohio-2327.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellant,              :
                                                                No. 107525
                 v.                                :

MELVIN BOURN,                                      :

                 Defendant-Appellee.               :



                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 13, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-618413-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, Oscar Albores and Daniel T. Van, Assistant
                 Prosecuting Attorneys, for appellant.

                 Mark A. Stanton, Chief Public Defender, Robert Blanshard
                 McCaleb, Assistant Public Defender, for appellee.


ANITA LASTER MAYS, P.J.:

                   Plaintiff-appellant, state of Ohio appeals the trial court’s decision to

grant a motion to dismiss rape charges against defendant-appellee, Melvin Bourn

(“Bourn”), for preindictment delay. We affirm the trial court’s decision.
I.    Facts and Procedural History

              Bourn was indicted on June 19, 2017, on an eight-count indictment

for committing two separate rapes on January 14, 2005, and April 13, 2005. On

December 9, 2017, Bourn filed a motion to dismiss the charges due to prejudicial

preindictment delay. A hearing was held, and the trial court dismissed the four

counts of rape for the January 14, 2005 incident, but denied Bourn’s motion for the

April 13, 2005 incident. Bourn then filed a motion for reconsideration, and the trial

court granted Bourn’s motion to dismiss the remaining charges. The state is now

appealing the trial court’s decision to dismiss the charges from the April 13, 2005

incident.

      A.     Appellant’s Claims

              The state claims that on April 13, 2005, Bourn raped N.J. On this day,

N.J. and Bourn were having drinks at a neighborhood bar across the street from her

home. N.J. noticed Bourn staring at her. She decided to leave the bar for home

because she was not feeling well. N.J. walked across the street to her home, entered,

and locked the door. Later, N.J.’s friend Erika Young (“Young”) came to N.J.’s home

to check on her. When Young opened the front door, she observed Bourn engaging

in anal sex with N.J., who appeared to be unresponsive. Young waited outside on

the porch for Bourn to exit, and when he did, they engaged in a verbal exchange.

              Later that morning, when N.J. awoke her “butt was hurting real bad.”

Young asked N.J. why the man from the bar was in her home. Young told N.J. what

she witnessed a few hours before. N.J. called Joseph Gay (“Gay”), her boyfriend at
the time, and asked him to come to her home. Gay arrived at the home and told N.J.

that he attempted to have sex with her, but because she was unresponsive, he

stopped. N.J. then called EMS and went to the hospital to be examined. A rape kit

was performed on N.J.

              After N.J. returned home, Young, Gay, and two other individuals were

with her in the house when a man came to the door. Young identified the man at

the door as Bourn, the man she saw having sex with N.J. while she was

unresponsive. Gay and Bourn got into a verbal altercation, and Bourn pulled out a

gun. Gay tried to get the gun away from Bourn, and the gun went off three times.

The bullet struck Gay in the hand, and Bourn ran away.

              Six years later, in the spring of 2011, the Cleveland Police Department

(“CPD”) started an initiative to forward its backlogged rape kits to BCI for DNA

testing. On April 19, 2013, N.J.’s rape kit was submitted to BCI. The DNA from

N.J.’s rape kit was found to be a match to Bourn in May 2015. Bourn was

subsequently indicted on four counts surrounding the events that occurred on

April 13, 2005.

      B.    Appellee’s Claims

              Bourn claims that prior to April 13, 2005, he met N.J. on the street

and they exchanged phone numbers. On April 13, 2005, Bourn called N.J. and she

invited him to a bar. Bourn claims that he abstains from alcohol so they agreed to

meet at her home. Bourn arrived at N.J.’s home, and they had consensual sex in

N.J.’s living room. Bourn remembers being interrupted by Young, but after she left,
Bourn and N.J. finished. Bourn left N.J.’s home, promising to call soon. Later that

morning, Bourn called N.J. a few times and she invited him back to her home. When

Bourn arrived, Bourn claims that Gay attacked him and he left N.J.’s home, and

never contacted her again.

               According to Bourn, the state tested the rape kit in May 2015, and the

results were confirmed in 2017 that the DNA matched Bourn’s, whose DNA was in

the government’s CODIS system since 2002 due to a prior conviction.

      C.     Trial Court’s Decision

               The trial court, in its ruling on Bourn’s reconsideration motion to

dismiss for preindictment delay, used State v. Kafantaris, 2018-Ohio-1397, 110

N.E.3d 793 (8th Dist.), as its reason for granting Bourn’s motion. The trial court

stated, “based on the holding by the Court of Appeals in Kafantaris and the almost

identical facts in this case, the court must follow the precedent and dismiss the

remaining counts against Bourn for preindictment delay.”             Journal entry

No. 104541157 (July 10, 2018).

               The trial court reasoned that much of the evidence is no longer

available, like in Kafantaris. Also, the trial court stated,

      The confirmation of the DNA match occurred May 5, 2017, twelve
      years after the alleged crimes. Bourn had [a] prior conviction in 2002
      for gross sexual imposition for which he was incarcerated. His DNA
      was apparently already in the CODIS system since that is how his
      identity was matched from the rape kit. His identity could have been
      discovered quickly and easily had the testing of the rape kit not
      languished for twelve years.
      At the time of the first hearing on this issue, the court was not
      presented with the Kafantaris case, which is nearly on all fours with
      this case. Kafantaris, which granted a motion to dismiss for
      preindictment delay, was based on the facts that the nightclub where
      the victim met Kafantaris was no longer in existence, the rape kit was
      not tested for 20 years, the original investigation file was lost, the
      phone records were unavailable, and the state had sufficient
      information in 1996 to identify and locate Kafantaris.

      Here, the nightclub is gone, the original file is gone, the officer
      handling the file, Officer Moore, has passed away, the rape kit was not
      tested for 12 years, the phone records are unavailable, and the state
      had sufficient information in 2005 to identify and locate Bourn.

              The trial court determined that facts in Bourn’s case were “strikingly

similar” to the facts in Kafantaris; the trial court therefore, granted Bourn’s motion

to dismiss. As a result, the state filed this appeal, and assigned one error for our

review:

      I.     The trial court erred when it granted the motion to dismiss for
             preindictment delay on the basis that the defense had
             demonstrated prejudice for Jane Doe 2’s case.

II.   Preindictment Delay

      A.     Standard of Review

              “In reviewing a trial court’s decision on a motion to dismiss for

preindictment delay, we apply a de novo standard of review to the legal issues but

afford great deference to findings of fact made by the trial judge.” State v. Tate,

2016-Ohio-5622, 70 N.E.3d 1056, ¶ 18 (8th Dist.), citing State v. Smith, 8th Dist.

Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23.
      B.     Did the Trial Court Err when it Granted the Motion for
             Preindictment Delay When it was Clear that the
             Defense had Not Demonstrated Actual Prejudice?

              The state argues in its sole assignment of error that Bourn cannot

demonstrate actual prejudice as a result of preindictment delay. The state also

argues that Bourn has failed to demonstrate any concrete proof of lost exculpatory

evidence prejudicing his ability to defend his case.

      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 Ohio Supreme Court has held that “the determination of ‘actual
      prejudice’ involves ‘a delicate judgment based on the circumstances of
      each case.’” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775
      N.E.2d 829, ¶ 52, citing United States v. Marion, 404 U.S. 307, 326,
      92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The mere “possibility that
      memories will fade, witnesses will become inaccessible, or evidence
      will be lost is not sufficient to establish actual prejudice,” as 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
      Marion at 326. An actual prejudice analysis requires courts to
      undertake a case-by-case consideration of the relevance of the lost
      evidence and its purported effect on the defense. Id., citing Walls at
      ¶ 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.

Kafantaris, 2018-Ohio-1397, 110 N.E.3d 793, at ¶ 19-21.

               Bourn states that he demonstrated actual prejudice regarding his

right to a fair trial. He specifically points to the phone records that would have

bolstered his claims that there were numerous phone calls and conversations

between him and N.J., and that they spoke on the phone after the alleged rape. At

the time, Bourn’s phone carrier was Revol, and since this incident, Revol has gone

out of business. In Kafantaris, we stated,

      [t]he trial court’s decision to dismiss this case was based largely on
      this court’s decision in State v. Crymes, 8th Dist. Cuyahoga
      No. 104705, 2017-Ohio-2655. In Crymes, the defendant argued that
      he was prejudiced by the unavailability of phone records where such
      records could have negatively impacted the alleged victim’s
      credibility. * * * This court held that the defendant suffered actual
      prejudice because the phone records went directly to the victim’s
      credibility. Specifically, the court found that the phone calls,
      “although not direct proof of consent, would help appellee verify his
      account of the event, thereby bolstering the defense.” Crymes at ¶ 20.

Kafantaris at ¶ 25.

               Similar to the facts in Kafantaris, the original investigative file is

missing. In Kafantaris, we stated, “we find it possible that notes in the original case

file could have minimized or eliminated the impact of the state’s evidence.” Id. at

¶ 23. Also, the bar where N.J. claimed to have met Bourn is no longer in business.

Bourn claims that he never went to the bar because he does not drink alcohol. Like

the trial court, considering all of these factors, we find that Bourn has demonstrated
actual prejudice, and now the burden shifts to the state to produce evidence to justify

the delay. Id. at ¶ 19.

               The state argues that the delay was justifiable because it must move

cautiously before indicting an individual. We reject the state’s reasoning. In 2011,

CPD began to forward its backlog of rape kits to the state. This is six years after the

alleged rape took place. N.J.’s rape kit did not get submitted until 2013, eight years

after the alleged rape. In 2015, the DNA from N.J.’s rape kit was matched with

Bourn, and two years later, in 2017, the state was notified of the match. It is also

noted that the state had Bourn’s DNA on file since 2002. The evidence reveals that

had the rape kit been tested in 2005 or shortly thereafter, a DNA match would have

been made sooner. We find that the same DNA evidence was available to the state

at the time of the active investigation that was available 12 years later.

               [A] delay can be found to be unjustifiable when

      “the state’s reason for the delay is to intentionally gain a tactical
      advantage over the defendant, see United States v. Marion, [404 U.S.
      at 324, 92 S.Ct. 455, 30 L.Ed.2d 468], or when the state, through
      negligence o[r] error in judgment, effectively ceases the active
      investigation of a case, but later decides to commence prosecution
      upon the same evidence that was available to it at the time that its
      active investigation was ceased.”

State v. Powell, 2016-Ohio-1220, 61 N.E.3d 789, ¶ 14 (8th Dist.), citing State v.

Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097.

               In Kafantaris, we stated, “[s]imilarly, the rape kit existed in 1996 and

could have been tested. The state does not argue otherwise. Thus, an argument that

there was no value in the DNA evidence in this case prior to 2016 is not persuasive.
Therefore, the DNA evidence obtained in 2013 and 2016 does not constitute new

evidence.” Kafantaris, 2018-Ohio-1397, 110 N.E.3d 793, at ¶ 34. We find that the

state’s argument in this case is not persuasive. In light of our holding in Kafantaris,

we affirm the trial court’s decision to dismiss the case based on prejudicial

preindictment delay.

               The state’s sole assignment of error is overruled.

               Judgment is affirmed.

      It is ordered that the 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.

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

Rule 27 of the Rules of Appellate Procedure.



_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

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