[Cite as State v. Jones, 2017-Ohio-176.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 101258



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLANT

                                              vs.

                                   DEMETRIUS JONES
                                                    DEFENDANT-APPELLEE




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-577686-A

        BEFORE: S. Gallagher, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                   January 19, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Brett Hammond
          T. Allan Regas
          Daniel T. Van
          Mary Weston
Assistant Prosecuting Attorneys
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Russell S. Bensing
1360 East 9th Street
Suite 600
Cleveland, Ohio 44114
SEAN C. GALLAGHER, J.:

       {¶1}    This case is before us following a remand from the Ohio Supreme Court in

State v. Jones, Slip Opinion No. 2016-Ohio-5105 (hereafter “Jones”).        In Jones, the

Ohio Supreme Court reversed the majority en banc decision of this court in State v. Jones,

2015-Ohio-2853, 35 N.E.3d 606 (8th Dist.), upon finding the Eighth District majority

applied an incorrect standard in its analysis of Jones’s preindictment-delay claim. Jones

at ¶ 30.   The Ohio Supreme Court remanded the case for the court of appeals to make

the appropriate determination “in the first instance,” applying the two-part

burden-shifting analysis enunciated in State v. Whiting, 84 Ohio St.3d 215, 217,

1998-Ohio-575, 702 N.E.2d 1199, and the actual-prejudice standard from State v. Luck,

15 Ohio St.3d 150, 472 N.E.2d 1097 (1984).      Jones at ¶ 29.1 Upon application of the

foregoing mandate, we find that Jones failed to establish actual prejudice from the

preindictment delay. Therefore, we reverse the trial court’s decision to dismiss the

charges of rape and kidnapping against Jones, and we remand the case for further

proceedings.

       {¶2} The underlying facts and the procedural background that led to the trial

court’s decision to dismiss the case for preindictment delay were set forth by the Ohio

Supreme Court in Jones, and are restated herein:

       Early on September 2, 1993, S.W. reported to the Cleveland Police

       1
        We note that while we would have sent this case back to the trial court for a
full hearing under the standard reasserted in Jones, we here (now) follow the
mandate of the Ohio Supreme Court that instructed this court to decide the matter.
Department that Jones had raped her late the previous night. The
responding officers completed an incident report and transported S.W. to St.
Luke’s Hospital, where a rape kit was administered.

The incident report lists addresses for S.W., S.W’s mother — who is listed
as a witness — and Jones, and it also includes S.W.’s account of the alleged
rape. S.W. stated that she was with Jones at his mother’s apartment, where
Jones also lived. She said that when she told Jones that she had to leave,
he refused to let her go, locked her in his bedroom, threw her on the bed,
threatened her with a knife, and told her she was not leaving until they had
sex. She said that she screamed for help and fought Jones but that neither
Jones’s mother nor his brother responded. [Footnote: Jones’s counsel
contested S.W.’s identification of the other individual as Jones’s brother but
did not identify the individual.] She said that Jones ultimately had vaginal
intercourse with her and that her clothes were ripped during the offense.

S.W.’s medical records indicate that she identified Jones as her attacker and
that at the time of her forensic exam, she was still wearing the clothes she
wore at the time of the alleged rape.

In the week after the alleged rape, police officers twice unsuccessfully
attempted to locate S.W. at the address listed in the incident report. A
police report dated September 8, 1993 characterizes the address listed for
S.W. as “a bad address.” There is no indication that the officers made any
other attempt to contact S.W. And despite S.W.’s identification of Jones
by name and address, the report states, “Until such time as the victim comes
forth and assist[s] in this investigation we have no further investigative
leads.” The record does not reveal that the police took any other
investigative steps, such as photographing S.W. or the alleged crime scene,
collecting S.W.’s clothing or other physical evidence, or interviewing
potential witnesses. Rather, the report states that Jones “is no longer
wanted” in connection with the case.

Even though S.W. had identified Jones, the Cleveland Police Department
sent S.W.’s rape kit to the Ohio Bureau of Criminal Investigation (“BCI”)
for DNA testing in September 2011, 18 years after the alleged rape, as part
of Ohio’s sexual-assault-kit testing initiative. BCI informed the Cleveland
Police Department in August 2012 that the testing of swabs from the rape
kit resulted in two DNA profiles — one consistent with S.W. and one
consistent with Jones. In June 2013, BCI informed the Cleveland Police
Department and the Cuyahoga County prosecutor’s office that DNA from
the rape kit matched a sample of Jones’s DNA in the Combined DNA Index
       System.

       On August 30, 2013, one day before the expiration of the 20-year statute of
       limitations that was applicable at the time, [FN omitted] the Cuyahoga
       County Grand Jury returned an indictment, charging Jones with rape and
       kidnapping.

       Jones filed a motion to dismiss the indictment with prejudice in the
       Cuyahoga County Court of Common Pleas, based on unconstitutional
       preindictment delay. He argued that as a result of the state’s delay in
       pursuing the indictment, his mother * * *, who S.W. alleged to have been
       present at the time of the alleged rape and who died in 2011, was no longer
       an available witness. Jones also argued that he is prejudiced by the
       unavailability of S.W.’s 911 call and any physical evidence, including
       S.W.’s clothing. Jones argued that the delay was not justified because,
       Jones asserts, contrary to the supposed inability to locate S.W., the
       Cleveland Police Department arrested S.W. on numerous occasions
       subsequent to the alleged rape. And at a hearing on Jones’s motion to
       dismiss, his attorney argued that the belated DNA match did not justify the
       delay because Jones’s identity was not unknown. The trial court granted
       Jones’s motion to dismiss, noting prejudice from the loss of physical
       evidence and the death of Jones’s mother.

Id. at ¶ 2-8.

       {¶3}     On appeal, we must apply the proper framework for analyzing claims of

preindictment delay. Under the burden-shifting framework for analyzing a due-process

claim based on preindictment delay, a defendant is required to present evidence of actual

prejudice before the burden shifts to the state to produce evidence of a justifiable reason

for the delay. Jones, Slip Opinion No. 2016-Ohio-5105 at ¶ 13, citing Whiting, 84 Ohio

St.3d 215, 217, 1998-Ohio-575, 702 N.E.2d 1199.

       {¶4} In Jones, the Ohio Supreme Court referred to Luck, 15 Ohio St.3d 150, 472

N.E.2d 1097, for guidance regarding the actual-prejudice standard. Jones at ¶ 24-25.

In Luck, one of the deceased witnesses was purportedly with Luck at the time of the
murder for which Luck had been accused and was reportedly “the one person who could

have helped her in [the] matter[.]” Luck at 157. Although there was no testimony

establishing what the witness would have actually testified to at trial, the court found that

Luck had been prejudiced by the inability to seek verification of her story from the

deceased witness and thereby establish mitigating factors or a defense to the charges

against her. Id. at 157-158.     After reviewing the Luck decision, the Ohio Supreme

Court in Jones recognized that “the proven unavailability of specific evidence or

testimony that would attack the credibility or weight of the state’s evidence against a

defendant, and thereby aid in establishing a defense, may satisfy the due-process

requirement of actual prejudice.” Jones at ¶ 25.

       {¶5} However, “the death of a potential witness will not always constitute actual

prejudice.” Jones, Slip Opinion No. 2016-Ohio-5105, at ¶ 26, citing State v. Adams, 144

Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99. In determining actual prejudice,

a court must balance the unavailable evidence in light of the other evidence available at

the time of the indictment and in light of its relevance to the defense. Jones at ¶ 26.

“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.”       Id. at ¶ 28.     Thus, a defendant must

demonstrate a viable, tangible connection between the missing evidence or the

unavailable witness to the defense of the case. State v. Richardson, 8th Dist. Cuyahoga

No. 103925, 2016-Ohio-5843, ¶ 13.
       {¶6} Jones contends that he was prejudiced by the preindictment delay because his

mother, who was placed in the home at the time of the alleged crime, is no longer

available to testify.      Although Jones offered an explanation of what exculpatory

testimony the witness might have offered, the unavailable evidence must be balanced

against the evidence at the time of the indictment to determine whether Jones would

suffer actual prejudice. See Jones at ¶ 24.

       {¶7} We note that the trial court never engaged in an appropriate balancing test for

gauging actual prejudice and much of the trial court’s opinion was focused upon the lack

of police investigation when the identity of the defendant was always known. 2 ,                    3



Although the court recognized the loss of Jones’s mother as a witness, the trial court did

not consider the impact of another witness also having been present in the home.

       {¶8} Unlike the case in Luck, in this case there was more than one witness

identified as having been present at the time of the alleged offense.          The victim claimed

that Jones’s brother was also present. Although the brother’s whereabouts have yet to be

determined, Jones offered nothing to establish that this potential witness would be

unavailable to testify or to contradict the identification of this individual as Jones’s

brother.   Thus, it is conceivable that the mother’s testimony would have been cumulative


       2
        In fairness to the trial court, we recognize that at the time it issued its
decision, the appropriate standard had not been clarified and the court did not have
the benefit of the Jones decision.
       3
           Although we believe the lack of a distinction between cases involving alleged perpetrators
whose identities have always been known and those involving unknown perpetrators is problematic,
the legislature has not drawn any distinctions with regard to the applicable statute of limitations.
to other evidence available at the time of the indictment.    For this reason, Jones has not

shown that the loss of his mother as a potential witness would minimize or eliminate the

impact of the state’s evidence and bolster his defense.

       {¶9} Also, Jones’s reliance upon the loss of the victim’s clothing is a red herring.

There is no evidence that the supposed missing evidence was preserved by the police

investigation, and therefore, the missing evidence cannot be said to have been a result of

the delay. The missing evidence may be evidence of an incomplete investigation, but

that defense would have existed regardless of the passage of time.       A claim of actual

prejudice is to be scrutinized “vis-à-vis the particular evidence that was lost or

unavailable as a result of the delay” and considered with regard to “the relevance of the

lost evidence and its purported effect on the defense.”      (Emphasis added.) Jones at ¶

23.

       {¶10}   It is the defendant’s burden “to establish actual prejudice — separate from

the state’s reasons for the delay — before the burden shifts to the state to justify its

delay.” Jones, Slip Opinion No. 2016-Ohio-5105, at ¶ 14. Upon the record presented,

Jones failed to demonstrate actual prejudice.    Therefore, the trial court’s decision must

be reversed and the case remanded for further proceedings.

       {¶11}   Judgment reversed; case remanded.

       It is ordered that appellant recover from appellee 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.



_______________________________
SEAN C. GALLAGHER, JUDGE

TIM McCORMACK, J., CONCURS;
LARRY A. JONES, SR., P.J., DISSENTS WITH SEPARATE OPINION


LARRY A. JONES, SR., P.J., DISSENTING:

       {¶12} Respectfully, I dissent. I would affirm the trial court’s finding that Jones

suffered actual prejudice based on preindictment delay.

       {¶13} Determining whether actual prejudice has occurred is “a delicate judgment”4

and a defendant asserting actual prejudice because of preindictment delay must be

specific as to what the actual prejudice is.        I disagree with the majority that Jones has

failed to do so.

       {¶14} Jones contends that because of the nearly 20-year delay in prosecuting this

case, a key witness and physical evidence has been lost.              Specifically, as to the key

witness, the victim reported that Jones’s mother and brother had been in the apartment at

the time of the alleged rape and “should have heard it.”           At the time of indictment, his

mother was deceased, however.           As to the physical evidence, Jones contends that the


       4
           United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
victim’s clothing and photographic evidence, which he claimed would not show signs of a

struggle, were no longer available.

       {¶15} I recognize that the death of a potential witness will not always create actual

prejudice. State v. Jones, Slip Opinion No. 2016-Ohio-5105, ¶ 26. But the actual

prejudice burden is a difficult one for defendants because “proof of prejudice is always

speculative.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶

100. Jones’s “proffer” of his mother’s testimony was that she might have testified that

she did not hear any screams by the victim or other noises that would have indicated a

struggle between him and the victim. There is also the possibility that she would have

testified as to the nature of Jones’s and the victim’s relationship. I disagree with the

majority’s insinuation that the “proffered” testimony, when balanced against the other

evidence available at the time of indictment, does not establish actual prejudice.5

       {¶16} I also disagree with the majority’s insinuation that the lack of physical

evidence — namely, photographs of the alleged crime scene or the victim’s clothing —

were for reasons other than the delay. The evidence was not preserved because the case

was closed approximately one week after the alleged rape.         Thus, I believe that physical

evidence did not exist at the time of indictment because of the delay.

       {¶17} Further, although the second part of the preindictment delay test, that is,

whether the state produced evidence of a justifiable delay, was not at issue in this appeal,


       5
          I note that “other evidence” that would generally be present in a rape case, such as the
victim’s clothing and photographs of the alleged crime scene, was not preserved in this case.
I do not believe that this record supports a finding of any investigative delay, as the state

contends.   Rather, as mentioned, the case was closed shortly after the alleged rape and

sat dormant for the next almost 20 years.

       {¶18} In light of the above, I respectfully dissent and believe the trial court’s

judgment dismissing the case based on preindictment delay should be affirmed.
