[Cite as State v. Tyler, 2016-Ohio-8245.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 16-CA-22
RANDY TYLER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 15 CR 643


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        December 16, 2016


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


KENNETH W. OSWALT                              ANDREW T. SANDERSON
Licking County Prosecutor                      Burkett & Sanderson, Inc.
                                               73 North Sixth Street
By: PAULA M. SAWYERS                           Newark, Ohio 43055
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 16-CA-22                                                         2

Hoffman, J.



         {¶1}   Defendant-appellant Randy Tyler appeals his conviction and sentence

entered by the Licking County Court of Common Pleas, on 2 counts of rape, in violation

of R.C. 2907.02(A)(1)(b) and (A)(2), felonies of the first degree; and one count of sexual

battery, in violation of R.C. 2907.03(A)(5), a felony of the third degree, following a jury

trial. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

         {¶2}   On September 10, 2015, the Licking County Grand Jury indicted Appellant

on the aforementioned charges.          The charges arose from conduct which occurred

between June 9, 1997, and June 8, 2000; and between June 9, 2000, and June 9, 2002,

and which involved a minor victim.          Appellant appeared before the trial court for

arraignment on November 3, 2015, and entered a plea of not guilty to the charges.

         {¶3}   Appellant filed a motion to dismiss on the ground of preindictment delay.

Therein, Appellant asserted the delay resulted in actual prejudice to him as the

whereabouts, the mental health, and current name of the victim’s mother were no longer

available; potential witnesses were no longer available; Appellant’s mother who “has

specific knowledge pertinent to this case” was too ill to attend court or participate in any

proceedings; and Appellant’s military records which would establish he had a vasectomy

were no longer available. Appellant further maintained there was no justification for the

delay.

         {¶4}   The state filed a memorandum in opposition. The state indicated the victim

contacted the Pataskala Police Department to report the offenses on September 29,
Licking County, Case No. 16-CA-22                                                     3


2007. The victim was 20 years old at that time and resided in Texas. The Pataskala

Police Department arranged for the victim to meet with Appellant and record their

conversation. When the victim asked Appellant why he had molested her, Appellant

replied he was lonely and sick. After the victim returned to Texas, the Pataskala Police

interviewed Appellant. Sgt. Gary Smith, who was in charge of the case, made subsequent

attempts to contact the victim, but was unsuccessful as she had moved several times and

had also changed her phone number several times.

       {¶5}   The victim moved back to Ohio in 2015. On June 1, 2015, the victim again

contacted the Pataskala Police Department regarding Appellant and reopening the case.

Det. Bradley Ramsey, who was assigned to the case, reviewed the material from the prior

investigation including the recordings of the victim’s conversation with Appellant. Det.

Ramsey interviewed the victim. He also attempted to contact Appellant on numerous

occasions, but was unsuccessful. After completing the investigation, the matter was

turned over to the Licking County Prosecutor’s Office, and Appellant was subsequently

indicted.

       {¶6}   The trial court conducted a hearing on Appellant’s motion to dismiss on

January 20, 2016. Via Judgment Entry filed the same day, the trial court overruled

Appellant’s motion, finding Appellant failed to meet his burden and did not demonstrate

prejudice.

       {¶7}   The matter proceeded to jury trial on February 24, 2016. After hearing all

the evidence and deliberating, the jury found Appellant guilty of all of the charges

contained in the Indictment. The trial court ordered a presentence investigation report.
Licking County, Case No. 16-CA-22                                                         4


The trial court ultimately sentenced Appellant to an aggregate term of incarceration of

thirteen years.

       {¶8}   It is from his conviction and sentence Appellant appeals, raising as his sole

assignment of error:

       {¶9}   THE      DEFENDANT-APPELLANT           WAS    DENIED     THE     EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL.

                                                 I

       {¶10} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show (1) counsel's performance was deficient, and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble,

122 Ohio St.3d 297, 2009–Ohio–2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a

convicted defendant complains of the ineffectiveness of counsel's assistance, the

defendant must show that counsel's representation fell below an objective standard of

reasonableness. Strickland at 688. Judicial scrutiny of defense counsel's performance

must be highly deferential. Id. at 689. In Ohio, there is a presumption that a properly

licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905

(1999).

       {¶11} Even assuming that counsel's performance was ineffective, the defendant

must still show that the error had an effect on the judgment. State v. Bell, 8th Dist.

Cuyahoga No. 102141, 2015–Ohio–4178, ¶ 60, citing State v. Bradley, 42 Ohio St.3d

136, 142, 538 N.E.2d 373 (1989). Reversal is warranted only where the defendant
Licking County, Case No. 16-CA-22                                                           5


demonstrates that there is a reasonable probability that, but for counsel's errors, the result

of the proceeding would have been different. Id.

       {¶12} Appellant contends trial counsel was ineffective for failing to properly

establish the prejudice to his defense caused by the preindictment delay. Specifically,

Appellant maintains “the failure of his counsel to raise issues related to the exculpatory,

recorded phone call between [Appellant] and the alleged victim that was ‘lost’ during the

intervening time so prejudiced the proceedings below as to deny him his constitutionally

guaranteed right to a speedy trial herein.” Brief of Appellant at 5.

       {¶13} The delay between the commission of an offense and an indictment, can,

under certain circumstances, constitute a violation of due process of law guaranteed by

the federal and state constitutions. See State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d

1097 (1984); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468

(1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

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

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

substantially and actually prejudiced due to the delay. State v. Whiting, 84 Ohio St.3d

215, 217, 702 N.E.2d 1199 (1998). However, “proof of actual prejudice, alone, will not

automatically validate a due process claim” as “the prejudice suffered by the defendant

must be viewed in light of the state's reason for the delay.” Luck, supra at 154, citing

Marion. Thus, once a defendant establishes “actual prejudice”, the burden then shifts to

the state to produce evidence of a justifiable reason for the delay. Id. Thereafter, the due

process inquiry involves a balancing test by the court, weighing the reasons for the delay
Licking County, Case No. 16-CA-22                                                           6

against the prejudice to the defendant, in light of the length of the delay. State v. Walls,

96 Ohio St.3d 437, 2002–Ohio–5059, 775 N.E.2d 829, ¶ 51.

       {¶15} The Eighth District Court of Appeals has established the standard for

demonstrating actual prejudice, the “exculpatory evidence standard”:

              The defendant may not rely on speculation or vague assertions of

       prejudice. Proof of actual prejudice must be specific, particularized, and

       non-speculative. Therefore, in order to establish actual prejudice, the

       defendant must demonstrate the exculpatory value of the evidence of which

       he was deprived due to the delay. State v. Thomas, 8th Dist. Cuyahoga

       No. 101202, 2015–Ohio–415, ¶ 11.



       {¶16} The defendant must therefore show “how lost witnesses and physical

evidence would have proven the defendant's asserted defense.” State v. Smith, 8th Dist.

Cuyahoga No. 100501, 2014–Ohio–3034, ¶ 26, citing State v. Davis, 7th Dist. Mahoning

No. 05 MA 235, 2007–Ohio–7216, ¶ 17. “Without proof of prejudice, meaning something

which adversely affects [a defendant's] ability to defend himself at trial, there is no due

process violation for preindictment delay in prosecution.” Id.

       {¶17} We find Appellant is unable to establish actual prejudice as the allegedly

exculpatory lost recorded conversation did not affect his ability to defend himself at trial.

       {¶18} Evid.R. 801(D) defines statements which are not hearsay by their very

definition. Included in these statements are admissions by a party-opponent. See Evid.R.

801(D)(2). Pursuant to Evid.R. 801(D)(2), such statements must be offered “against a

party.” (Emphasis added.) When a statement a defendant makes to a law enforcement
Licking County, Case No. 16-CA-22                                                         7


officer is offered by the state of Ohio against the defendant, a party-opponent, that

statement, by its very definition, is not hearsay. On the other hand, if a defendant seeks

to present an exculpatory statement he made to a law enforcement officer through an

audio recording of the statement, such statement is not being offered against the state,

the party-opponent, but rather offered by the defendant. Therefore, it is hearsay. Evid.R.

801(C). In order for that statement to be permitted without the defendant testifying, the

defendant must establish the statement falls within one of the clearly defined exceptions

to the hearsay rule. See, State v. Lewis, 7th Dist. No. 03 MA 36, 2005–Ohio–2699, ¶ 127–

128.

       {¶19} The potentially exculpatory statements made by Appellant in the lost

recording do not fall within one of the exceptions to the hearsay rule. Accordingly, we find

such evidence would not have been admissible. Because the evidence about which

Appellant complains was inadmissible hearsay, we find Appellant was not prejudiced by

counsel’s failure to raise the issue in his motion to dismiss the complaint due to the

preindictment delay.

       {¶20} Appellant’s sole assignment of error is overruled.
Licking County, Case No. 16-CA-22                                                   8


      {¶21} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, J.

Farmer, P.J. and

Delaney, J. concur
