[Cite as State v. Anders, 2018-Ohio-1375.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY

STATE OF OHIO,                                  :    Case No. 17CA3595

        Plaintiff-Appellee,                     :

v.                                              :    DECISION AND
                                                     JUDGMENT ENTRY
JASON A. ANDERS,                                :
                                                     RELEASED: 04/04/2018
        Defendant-Appellant.                     :
                                             APPEARANCES:

Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Ohio Assistant
Public Defender, Columbus, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Harsha, J.
        {¶1}     After a jury convicted Jason A. Anders of three counts of rape, the court

sentenced him to an aggregate prison term of 30 years to life. Claiming that his

constitutional right to a speedy trial was violated when the state waited nearly two years

and nine months after the indictment to arrest him, Anders asserts the trial court

incorrectly denied his motion to dismiss the charges. Although this delay was

presumptively prejudicial and triggered a speedy trial analysis, our review of the factors

in Barker v. Wingo, 407 US 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), supports

the trial court’s decision. The delay was not so protracted or egregious that it

warranted granting relief absent a showing of some particularized trial prejudice, which

Anders has not done.

        {¶2}     Next Anders contends that his convictions for rape were against the

manifest weight of the evidence because the victim’s testimony was inconsistent,
Ross App. No. 17CA3595                                                                   2


unreliable, and incredible. We have reviewed the entire record, weighed the evidence,

applied all reasonable inferences, and considered the credibility of witnesses. As a

result we conclude that the jury did not clearly lose its way in resolving conflicts in the

evidence and create such a manifest miscarriage of justice that we must reverse the

rape convictions. The jury was free to credit the child victim’s testimony, which

established beyond a reasonable doubt that Anders committed the three rapes.

          {¶3}    Therefore, we overrule Anders’s assignments of error and affirm his

convictions and sentence.

                                                 I. FACTS

          {¶4}    In February 2014, the Ross County Grand Jury returned a secret

indictment charging Jason A. Anders with three counts of rape in violation of R.C.

2907.02(A)(1)(b), with the specification that the victim, J.D., was less than ten years old.

The indictment alleged that the rapes occurred in the period from August 2007 through

June 2008. The court issued a warrant on the indictment with special instructions to

enter it into the LEADS1 database as a radius pick-up of 12 and to direct it to Detective

Tony Wheaton of the Ross County Sheriff’s Office for service.

          {¶5}    Nearly 33 months later in November 2016, the U.S. Marshal’s Office

arrested Anders on the warrant. Less than a month following the service of the warrant,

Anders filed a motion to dismiss the indictment based on a purported violation of his

constitutional right to a speedy trial. He claimed that the post-indictment delay of 33

months between the issuance of the indictment and his arrest violated the Sixth


1LEADS stands for the Law Enforcement Automated Data System. See State v. Chancey, 4th Dist.
Washington No. 15CA17, 2015-Ohio-5585, ¶ 16.
2   Radius 1 refers to a warrant active anywhere in the United States.
Ross App. No. 17CA3595                                                             3


Amendment. He argued: (1) the delay was presumptively prejudicial; (2) the delay was

caused solely by the state’s negligence as it made no efforts to serve him with the

warrant; (3) he timely asserted his right to dismissal of the charges; and (4) his defense

was impaired by the delay because neither he nor his family have any recollection of

ever living at the Bainbridge, Ohio address where the offenses were alleged to have

occurred.

                                  A. Motion to Dismiss

                                1. The State’s Evidence

       {¶6}   Detective Wheaton testified at the hearing on the motion to dismiss.

Wheaton indicated he took several initial steps to attempt to contact Anders in October

2012, prior to the indictment. He ran a background check that listed Anders’s address

as 27 West Main St., Mt. Sterling, Ohio. Because that address was in Madison County,

he asked the Madison County Sheriff’s Office to contact Anders and request that he

contact the Ross County Sheriff’s Office. In December 2012 and February 2013, Det.

Wheaton personally travelled to the Mt. Sterling address in unsuccessful attempts to

locate Anders. In July 2013, he again travelled to the Mt. Sterling address, where a new

tenant advised him that Anders had moved out the previous summer; however,

Anders’s mail was still coming there. Det. Wheaton checked with the local post office

and determined that Anders had not left a forwarding address.

       {¶7}   Det. Wheaton then attempted to contact Anders’s parents at the

Washington Courthouse address supplied by the victim’s father, Shane. Det. Wheaton

twice requested the Washington Courthouse Police Department to contact Anders’s
Ross App. No. 17CA3595                                                                   4


parents. Moreover, he personally travelled to the parents’ residence and left notes for

them to contact him; he never received any response.

       {¶8}   After issuance of the secret indictment in February 2014, Det. Wheaton

again made multiple attempts to locate Anders. In March 2014, Det. Wheaton ran a

check on OLEG,3 but it listed the Mt. Sterling address Wheaton had used

unsuccessfully. Wheaton also maintained contact with Shane, who had informed

Wheaton that he was still communicating with some of Anders’s old friends and family

members in an effort to find him. Again in September 2014 and July 2015, Det.

Wheaton contacted Shane, who had no new information on Anders’s whereabouts.

       {¶9}   In January 2015, Det. Wheaton ran Anders’s social security number

through LEADS, but it still showed the old Mt. Sterling address. He also checked

Facebook but was unable to find Anders there.

       {¶10} In August 2015, Shane telephoned Det. Wheaton to say he was unsure

where Anders was living “but he had heard that he may be living somewhere in

Kentucky.” In August 2015 and January 2016, Det. Wheaton requested a LEADS check

of Anders in both Ohio and Kentucky. The Ohio check came back with the Mt. Sterling

address. The Kentucky LEADS search was not fruitful because Det. Wheaton was not

LEADS certified and Anders’s Kentucky driver’s license was necessary to obtain an

accurate check. Because Det. Wheaton did not know whether Anders had a Kentucky

driver’s license, the dispatch center could not obtain information outside of the Ohio

system other than there were no warrants or convictions for Anders in Kentucky. Det.

Wheaton also checked for any Facebook accounts for Anders again but he was


3OLEG is the Ohio Law Enforcement Gateway. See State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, ¶
11 (4th Dist.).
Ross App. No. 17CA3595                                                                5


unsuccessful. Again Wheaton talked to Shane, who could not provide any information

other than he was still hearing that Anders was living somewhere in Kentucky.

       {¶11} In September 2016, the U.S. Marshal’s Office contacted the Ross County

Sheriff’s Office and asked if it needed assistance in locating any individuals with

outstanding warrants. The sheriff’s office gave the warrant for Anders to the U.S.

Marshal’s Office for service. In October or November 2016, the U.S. Marshal’s Office

located Anders in Kentucky and arrested him.

       {¶12} On cross-examination Det. Wheaton acknowledged that he had not tried

to contact the IRS or the Kentucky Bureau of Motor Vehicles to locate Anders.

However, he continued unsuccessfully to search additional social media outlets like

Twitter. And he had contacted Anders’s former Ohio employer, who provided the same

Mt. Sterling address.

                                2. The Defense Testimony

       {¶13} Anders testified that from the dates of the alleged rapes in 2007-2008 until

his arrest, he lived in three different places in Ohio—the Moxley Road, Bainbridge

house where the crimes allegedly occurred, an apartment in Mt. Sterling, and his wife’s

brother’s residence in Washington Courthouse—as well as three different places in

Kentucky. He got married before he moved to Kentucky, worked at two different jobs

there, and made no effort to conceal where he was living. Anders had no idea he had

an outstanding warrant for his arrest, so he had no reason to hide.

       {¶14} At the conclusion of the hearing the trial court ruled from the bench and

denied the motion.

                                          B. Jury Trial
Ross App. No. 17CA3595                                                                              6


          {¶15} The case proceeded to a jury trial, which revealed that Shane worked with

Anders and in October 2007, they decided to move into a home together on Moxley

Road in Bainbridge, Ohio. Shane’s family included his wife and two sons, J.D. and D.D.

In the winter of 2007-2008, when J.D. was six years old and in kindergarten, he lived at

the Bainbridge home.

                                         1. The State’s Case

          {¶16} J.D. testified that his parents slept in an upstairs bedroom and he and his

brother slept in Anders’s bedroom on the first floor, although they were supposed to

sleep on couches in the living room. According to J.D., he slept in the bed with Anders

and his brother slept on the couch in that bedroom.

          {¶17} J.D. testified about the following incidents of inappropriate sexual behavior

that winter. In the first incident J.D. was playing with Batman and Superman action

figures in Anders’s bedroom when Anders stuck his penis in J.D.’s mouth for a few

minutes. J.D. stopped because it left a “bad taste” and he was choking. Anders then

lay on his back on his bed and told J.D. to sit on his penis “like a toilet.” Anders put a

wet substance on his penis, saying that it might help, and then Anders moved his penis

in and out of his butt, for a few minutes. Upon stopping, Anders told J.D. not to tell his

father, Shane. J.D. testified that Anders’s anal rape hurt and caused him to bleed

twice.4

          {¶18} In the second incident about a week later, Anders drove J.D. around in his

car. On the way back home after J.D. told Anders to go faster, Anders stopped the car



4 Although J.D. testified about two separate rapes on this first date, one involving oral intercourse and the
other involving anal intercourse, the state eventually submitted the case to the jury on only the anal rape
that had occurred that day because it had charged Anders with only three rapes, not four.
Ross App. No. 17CA3595                                                               7


in the middle of the road, exposed his penis, put it in J.D.’s mouth, and said “suck on

this.” After 20 seconds, J.D. stopped because “it tasted nasty.”

       {¶19} In the third incident about a month or two after the second one, J.D., who

was sleeping on the bed in Anders’s bedroom, woke up to find Anders sucking his

penis. Anders stopped after about a minute, and he told J.D. not to tell his father.

       {¶20} Sometime after these incidents occurred, Anders and J.D.’s family moved

to separate places. J.D. testified he did not initially disclose these incidents because he

was scared. In 2008 or 2009, when Anders, Shane, and J.D. were in the same place,

Shane asked J.D. if Anders had ever touched him inappropriately. J.D. said no

because Anders was present, causing J.D. to be scared. When he was in fourth-grade,

J.D. finally told his mother that Anders had abused him, but she did not tell law

enforcement officers about it. In September 2012, J.D. told his cousin, Doug, who told

J.D.’s father, Shane, about it. Shane took J.D. to the sheriff’s office to report the abuse,

and subsequently the Child Protection Center interviewed J.D.

                                  2. The Defense Case

       {¶21} Anders testified that he met Shane when they were both working at YUSA.

He met the rest of Shane’s family when Shane invited Anders over for a cookout. The

family was then living in an apartment so Anders and Shane decided to move into a

house together to save money. Anders stated that he took the downstairs bedroom and

that Shane’s family all stayed upstairs. Anders denied that J.D. ever slept in his room.

He recalled that sometimes the boys were left at home with him and that he took them

fishing and to McDonald’s. Anders’s parents lived close by, and they sometimes took

care of the boys too.
Ross App. No. 17CA3595                                                              8


       {¶22} Anders recalled there was tension over a vehicle trade and it was more

severe than Shane described. Anders claimed that it was an “even trade,” but that

Shane later determined he wanted money in addition to the vehicle. According to

Anders the relationship between the two of them soured “quite a bit” and they had a

heated discussion over the money issue.

       {¶23} Anders ultimately left the home because he didn’t like being around

domestic disputes between Shane and his wife, who argued frequently over money.

Life in the house became more chaotic. But leaving the house still did not resolve the

situation with the truck, so eventually Anders gave the truck back to Shane to avoid any

further issues. However, that didn’t stop Shane from continuing to demand money.

       {¶24} When asked about J.D.’s allegations and testimony, Anders stated

unequivocally that none of that story ever happened. He also stated that though he

visited with Shane and his family periodically after moving out, Shane never asked

Anders whether he had abused J.D.

                                     3. The Verdicts

       {¶25} At the conclusion of the trial the jury returned verdicts finding Anders guilty

of all three rapes. The trial court sentenced Anders to an aggregate prison sentence of

30 years to life.

                             II. ASSIGNMENTS OF ERROR

       {¶26} Anders assigns the following errors for our review:

       I. JASON’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED WHEN THE
       STATE WAITED TWO YEARS AND NINE MONTHS AFTER THE
       INDICTMENT TO ARREST HIM.

       II. JASON’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE.
Ross App. No. 17CA3595                                                                9



                                III. LAW AND ANALYSIS

                           A. Constitutional Right to Speedy Trial

       {¶27}   In his first assignment of error Anders asserts that the delay of 33

months between the indictment and his arrest violated his constitutional right to a

speedy trial. Anders contests the trial court’s denial of his motion to dismiss, which was

based on the purported violation of the Sixth Amendment.

       {¶28} “The Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy

trial.” State v. Doughman, 2017-Ohio-4253, __ N.E.3d __, ¶ 17 (4th Dist.), citing State

v. Blackburn, 118 Ohio St.3d163, 2008-Ohio-1823, 887 N.E.3d 319, ¶ 10. The Due

Process Clause makes the Sixth Amendment speedy-trial provision applicable to the

states. State v. Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶ 29, citing Klopfer v. North

Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

       {¶29} Appellate review of a trial court's decision on a motion to dismiss for a

violation of the speedy trial requirements presents a mixed question of law and fact.

State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, ¶ 23; State v. Brown,

131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist. 1998). Thus, appellate courts will

defer to a trial court's findings of fact as long as competent, credible evidence supports

them. Brown, 131 Ohio App.3d at 391, 722 N.E.2d 594. Appellate courts then

independently determine whether the trial court properly applied the law to the facts. Id.

When we review the legal issues presented in a speedy trial claim, we must strictly

construe the relevant statutes against the state. Id., citing Brecksville v. Cook, 75 Ohio

St.3d 53, 57, 661 N.E.2d 706, 709 (1996).
Ross App. No. 17CA3595                                                                 10


       {¶30} To determine whether a defendant has been deprived of constitutional

speedy-trial rights, we must balance four factors: (1) the length of the delay, (2) the

reason for the delay, (3) the defendant’s assertion of a speedy-trial right, and (4)

prejudice to the defendant. State v. Triplett, 78 Ohio St.3d 566, 568, 679 N.E.2d 290

(1997), citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed2d 101 (1972);

Doughman at ¶ 18. None of the factors is per se determinative of the issue; instead, a

court considers the factors collectively. See Spencer at ¶ 30, citing Barker at 532.

Unfortunately, the Supreme Court’s formulation of the Barker test compels courts to

approach these cases on an ad hoc basis. See Vermont v. Brillon, 556 U.S. 81,91, 129

S.Ct.1283, 173 L.Ed.2d 231 (2009).

       {¶31} In promulgating its ad hoc balancing test in Barker, the Supreme Court

gave minimal guidance to courts as to the relative weights to be assigned within and

among the four elements. This minimal guidance has led to inconsistent analyses—

straight-balancing and weighted-balancing—and results in resolving constitutional

speedy-trial claims. As one commentator recently stated, “[t]he consequence of the

Barker [sic] court’s broad language and conflicting ideas has been widely varying

application of the Barker test. Yet ‘[t]he complex nature of the Barker v. Wingo

balancing test makes it impossible to evaluate the court’s results for consistency.’

Commentators have expressed a variety of concerns about how courts misapply the

Barker factors to the detriment of defendants.” (Footnotes omitted.) See Osnowitz,

Demanding a Speedy Trial: Re-Evaluating the Assertion Factor in the Barker v. Wingo

Test, 67 Case W.Res.L.Rev. 273, 284 (2016); see also Brooks, A New Speedy Trial

Standard for Barker v. Wingo: Reviving a Constitutional Remedy in an Age of Statutes,
Ross App. No. 17CA3595                                                               11


61 U.Chi.L.Rev. 587 (1994) (proposing a new speedy-trial “motive test,” focusing on the

reason for trial delays because the straight-balancing and weighted-balancing

approaches to the Barker test that federal and state courts have adopted “depend on

the flawed premise that society and individual defendants have inherently conflicting

interests in the speed with which a defendant is brought to trial”); Billings v. Bruce, 965

P.2d 866, ¶ 50-54 (Mont.1998), citing Brooks in adopting a new analysis including

features of both the straight-balancing and motive tests, overruled in State v. Ariegwe,

167 P.3d 815, ¶ 106 (Mont.2007). Despite these flaws in the ad hoc balancing system,

precedent from both the United States and Ohio Supreme Courts requires us to forge

ahead. Brillon, 556 U.S. 81, 91, 129 S.Ct. 1283, 173 L.Ed.2d 231; State v. Adams, 144

Ohio St.3d 42, 2015-Ohio- 3954, 945 N.E.3d 127, ¶ 88.



                                    1. Length of the Delay

       {¶32} “The United States Supreme Court has recognized that the first factor,

length of the delay, involves a double inquiry.” State v. Spencer, 2017-Ohio-456, 84

N.E.3d 106, ¶ 31 (4th Dist.), citing Doggett v. United States, 505 U.S. 647, 651, 112

S.Ct. 2686, 120 L.Ed.2d 520 (1992). First, an accused must show that the length of the

delay was “presumptively prejudicial” to trigger the Barker four-part balancing analysis.

Id. at 651-652. Second, once the Barker analysis is triggered, the court must readdress

the delay and balance it against the three remaining factors. Id. at 652.

       {¶33} Courts generally find post-accusation delay to be presumptively prejudicial

enough to trigger the Barker analysis when it approaches one year. Spencer at ¶ 32,

citing Doggett at fn. 1. In February 2014, the Ross County Grand Jury secretly indicted
Ross App. No. 17CA3595                                                                 12


Anders, who was not served with the warrant and arrested until November 2016, i.e.,

nearly 33 months later. Consistent with our precedent, we find that the 33-month delay

between Anders’s indictment and his arrest on the warrant was presumptively

prejudicial enough to trigger the entire Barker analysis.

       {¶34} Next we readdress the length of the delay, in conjunction with the other

factors. In his brief Anders offers little comment other than to acknowledge the court

found the threshold of presumptive prejudice occurred in the 33-month delay between

the indictment and his arrest. He does imply that the court didn’t give enough weight to

the delay when balancing it with the remaining Barker factors. In pronouncing its ruling

from the bench (there is no subsequent entry in the record memorializing the ruling), the

trial court seemed to place the length of the delay somewhere below the level of being

egregious, but it is difficult to tell from reading the transcript of the hearing. The court

did conclude that the delay was not so long or intolerable as to be outcome

determinative by itself. Because Anders’s brief focuses upon the length of the delay as

it affects whether he needs to affirmatively show actual prejudice, we will do likewise in

our review. However, we do note our agreement with the trial court’s apparent

conclusion that this delay does not reach an egregious level like that in Doggett. But

the length of the delay does weigh in Anders’s favor.

       {¶35} Although Anders claims that the trial court erred by not applying the

presumption of prejudice associated with the 33-month delay to obliterate the need for

an affirmative showing on his part, we reject his claim because presumptive prejudice

alone does not establish a speedy-trial violation. Here the trial court considered the

length of the delay in its balancing of the pertinent factors. See State v. Triplett, 78 Ohio
Ross App. No. 17CA3595                                                                              13

St.3d at 570, 679 N.E.2d 290, quoting Doggett at 656 (“while such presumptive

prejudice cannot alone carry a Sixth Amendment claim, ‘it is part of the mix of relevant

facts, and its importance increases with the length of delay’ ”). We will revisit Anders’s

focus in reviewing the prejudice factor of the analysis.

                                         2. Reason for the Delay

        {¶36} Anders claims that the trial court erred by determining the state’s

negligence was not the reason for the delay. He argues the trial court’s determination

of this factor was erroneous because it: attempted to assign blame to him for moving;

without any evidentiary support, found that Det. Wheaton did more work than many

other officers would have done; and excused the fact that Wheaton failed to do more to

follow up the lead about Anders’s potential presence in Kentucky.

        {¶37} The trial court found that the state was not to “blame” for the delay, i.e.,

that it did not intentionally or negligently cause the 33-month delay in serving Anders

with the warrant on the indictment.5 In Doggett the Supreme Court of the United States

instructed courts subsequently reviewing the second Barker factor to afford

considerable deference to the trial court’s finding on the reason for the delay. Doggett

at 652. Accordingly, we follow that guidance here and conclude competent, credible

evidence supports the court’s factual finding.

        {¶38} Det. Wheaton testified at the hearing on the motion to dismiss that he

conducted several LEADS and OLEG checks, searched social media sites, contacted




5 Anders seems to take issue with the trial court apportioning “blame” in its analysis of the issue.
However, the Supreme Court of the United States has utilized the term “blame” when addressing the
reason for the delay. See Doggett, 505 U.S. at 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (“whether the
government or the criminal defendant is more to blame for th[e] delay”), cited with approval in Brillon, 556
U.S. at 90, 129 S.Ct. 1283, 173 L.Ed.2d 231.
Ross App. No. 17CA3595                                                                14


sheriff’s offices and a post office, travelled personally to Mt. Sterling and Washington

Courthouse, and talked with J.D.’s father, Shane, in his unsuccessful attempts to locate

Anders.

       {¶39} Although Det. Wheaton acknowledged Shane told him in August 2015 he

“heard that” Anders “might” be living somewhere in Kentucky, the trial court reasonably

concluded that, “the detective did not have concrete evidence or proof that [Anders] had

even gone to Kentucky.” Even without more detailed evidence, Det. Wheaton

requested a Kentucky LEADS check, continued searching social media sites, and kept

contacting Shane.

       {¶40} Under these circumstances, the trial court’s factual finding that the state

was not negligent is supported by competent, credible evidence. This is clearly not a

case where the sheriff’s office stood by idly, doing nothing until a defendant is

fortuitously arrested by another agency. The proper question is not whether the state

could have done more, but rather whether it did enough to be reasonable, i.e. not

negligent. Up to this point the record indicates the state was relatively diligent in its

efforts.

       {¶41} Moreover, even if we assume that the state was negligent in failing to

properly follow up on the unverified Kentucky lead, this factor would only weigh slightly

in his favor because the Kentucky tip was made in August 2015; any delay attributable

to not acting on this new information would account for only 15 months of the 33-month

delay. See Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶ 34, quoting Doggett, 505 U.S. at

657, 112 S.Ct. 2686, 120 L.Ed.2d 520 (“ ‘to warrant granting relief, negligence

unaccompanied by particularized trial prejudice must have lasted longer than
Ross App. No. 17CA3595                                                                 15


negligence demonstrably causing prejudice’ ”). The 15-month delay from Shane’s

disclosure of the hearsay that Anders might be living somewhere in Kentucky, to the

service of the warrant, “was not so protracted or intolerable as to warrant relief absent

some particularized trial prejudice.” Spencer at ¶ 34, citing State v. Manley, 4th Dist.

Adams No. 97CA637, 1997 W: 451360 (Aug. 6, 1997) (finding that the 29-month delay

caused by the state’s negligence was not so protracted or intolerable as to warrant relief

absent some particularized trial prejudice).

       {¶42} Affording Anders the benefit of this assumption, we agree with him that

this factor weighs in his favor, but not to the extent he claims. This factor weighs

minimally for Anders.

                        3. Anders’s Assertion of Right to Speedy Trial

       {¶43} The trial court and the parties agree that Anders timely asserted his

constitutional right to a speedy trial by raising it in his motion to dismiss within a month

after being arrested. This factor weighs in favor of Anders.

                                    4. Prejudice to Anders

       {¶44} Looking at the prejudice component, we find no evidence in the record

that Anders suffered any actual prejudice here. “The three interests that the

constitutional speedy-trial right is designed to protect are: (1) to prevent oppressive

pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to

limit the possibility that the defense will be impaired.” State v. Doughman, 2017-Ohio-

4253, __ N.E.3d __, ¶ 23, citing Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d

101. Anders was not incarcerated during the post-indictment delay and he suffered no

anxiety or concern during this period because he was not aware of the pending charges
Ross App. No. 17CA3595                                                                16


raised in the secret indictment. He did not assert any actual impairment of his trial

defense that was attributable to the delay. In his motion to dismiss he simply claimed

he was prejudiced by the delay because neither he nor his family recalled living at the

Bainbridge, Ohio house where the rapes occurred. But he testified at the hearing on the

motion to dismiss, as well as at trial, that he lived at that house during the relevant time

period.

       {¶45} Nonetheless, Anders argues that the delay was so protracted that a

presumption of prejudice relieves him of any duty to affirmatively show actual prejudice.

Even if we credit Anders’s claim that Det. Wheaton negligently caused the delay

because of his failure to do more to follow up on the Kentucky residence tip, that

negligence can only account for 15 months of the post-indictment delay. That period is

not so protracted or intolerable to warrant relief absent some showing of particularized

trial prejudice.

       {¶46} Courts generally have found such presumptive prejudice to negate any

need for an affirmative showing only in cases where the post-indictment delay lasted at

least five years. See Barker. See also State v. Stevens, 3d Dist. Logan No. 8-14-09,

2014-Ohio-4875, ¶ 24, quoting U.S. v. Serna-Villarreal, 352 F.3d 225, 232 (5th

Cir.2003); State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 29 (1st Dist.).

       {¶47} Similarly, in State v. Boyd, 4th Dist. Ross No. 04CA2790, 2005-Ohio-

1228, ¶ 15, 17, we held that a 17-month delay between a defendant’s indictment and

arrest did not violate the defendant’s constitutional right to a speedy trial because it

“was not so protracted or intolerable as to warrant relief absent some particularized trial

prejudice.” In Boyd the defendant had no knowledge of the indictment against him, so
Ross App. No. 17CA3595                                                                 17


he could not have suffered anxiety and concern. Nor did he allege that the delay

impaired his ability to defend himself. See also State v. Bailey, 2d Dist. Montgomery

No. 20764, 2005-Ohio-5506 (17-month delay between indictment and arrest did not

violate defendant’s constitutional right to a speedy trial because he was unaware of the

pending indictment until shortly before his arrest and his claim of prejudice was not

credible).

       {¶48}   Although Anders cites Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120

L.Ed.2d 520, in support of his claim of presumptive prejudice, that case involved an 8 ½

-year delay, which is significantly longer than the less than 3-year delay here. The

delay in Doggett was egregious because it was over six times the 1-year delay

necessary for triggering the Barker analysis. And for six of the 8 ½ years, the

government did practically nothing to find Doggett (it had initially asked a foreign

government to “expel” Doggett back to the U.S.). As the Doggett court noted, the

“tolerance of such negligence varies inversely with its protractedness.” Id. at 657.

Neither the 33-month total delay, nor the 15-month delay assumptively assigned to the

scope of the Kentucky search, reach the level necessary to warrant Ander’s assertion.

       {¶49} Therefore, the prejudice factor weighs heavily against Anders.

                                 5. Balancing of the Factors

       {¶50} Although the first, second, and third factors weigh in favor of Anders, the

second factor weighs only slightly in his favor and fourth factor weighs heavily against

him. The minimal weight of the second factor is still not enough to carry the day in the

absence of some particularized trial prejudice. After considering the totality of the

circumstances, we conclude that the trial court correctly determined that the state did
Ross App. No. 17CA3595                                                                 18


not violate Anders’s constitutional right to a speedy trial. We overrule Anders’s first

assignment of error.

                             B. Manifest Weight of the Evidence

       {¶51} In his second assignment of error Anders contends that the jury verdicts

finding him guilty of three counts of rape were against the manifest weight of the

evidence.

                                      1. Standard of Review

       {¶52} In determining whether a criminal conviction is against the manifest weight

of the evidence, we must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether the

trier of fact clearly lost its way in resolving conflicts in the evidence, and created such a

manifest miscarriage of justice that we must reverse the conviction. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. We are reminded that generally, the

weight and credibility of evidence are to be determined by the trier of fact. See State v.

Kirkland, 140 Ohio St.3d 73, 15 N.E.3d 818, 2014-Ohio-1966, ¶ 132.

                                     2. The Victim’s Testimony

       {¶53} Anders argues that the jury’s guilty verdicts were against the manifest

weight of the evidence because J.D.’s testimony was inconsistent, unreliable, and

incredible. He cites purported inconsistencies, including: (1) J.D. testifying that he only

rode with Anders once in his car, but Shane testified that J.D. took multiple trips with

Anders (2) J.D. and Shane testifying that J.D.’s cousin, Doug, reported the abuse to the

police, but two detectives testified that Doug’s name is not included in investigative
Ross App. No. 17CA3595                                                                    19


records; (3) J.D. testifying that he never told his father about the abuse, but later

testifying that he did; (4) J.D. testifying that he told his father about the abuse after he

told a child-protection worker, when he actually told Shane about it before then; and (5)

J.D. testifying that he and his brother slept in Anders’s bedroom because they did not

want to sleep on the floor, but J.D. later testified that they were supposed to sleep on

couches in the living room. He also argues that J.D.’s testimony was largely

uncorroborated, and that potential key witnesses, like the child-protection worker who

interviewed J.D. about the abuse, were not called to testify.

       {¶54} J.D.’s testimony was consistent on most of the details of the three rapes—

anal intercourse in Anders’s bedroom, oral intercourse performed in Anders’s car, and

oral intercourse performed by Anders in Anders’s bedroom. And Shane corroborated

that he had learned about the abuse after J.D. reported the abuse to his ex-wife and to

his nephew. Anders’s defense appeared to primarily rely upon the animus between

Anders and Shane that resulted from an exchange of their vehicles. But Shane testified

that he remained friends with Anders after they moved from the Bainbridge house, and

that they continued to see each other.

       {¶55} “ ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the

testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist.

Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto

No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary

weight and credibility issues because it is in the best position to gauge the witnesses'

demeanor, gestures, and voice inflections, and to use these observations to weigh their

credibility. Id.; State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, at ¶ 18.
Ross App. No. 17CA3595                                                               20


       {¶56} The jury was free to credit J.D.’s testimony, which established the three

rapes, and to discount Anders’s abbreviated denial. Notwithstanding its

inconsistencies, J.D.’s testimony is not so incredible as to be unworthy of the jury’s

acceptance of it. We have reviewed the entire record, weighed the evidence and all

reasonable inferences, and considered the credibility of witnesses. We conclude that in

resolving conflicts in the evidence, the jury did not clearly lose its way and create such a

manifest miscarriage of justice that we must reverse the rape convictions. Therefore,

we overrule Anders’s second assignment of error.

                                    IV. CONCLUSION

       {¶57} The trial court properly denied Anders’s motion to dismiss, and the jury’s

verdicts finding him guilty of three rapes are supported by the manifest weight of the

evidence. Having overruled Anders’s assignments of error, we affirm his convictions

and sentence.

                                                                 JUDGMENT AFFIRMED.
Ross App. No. 17CA3595                                                            21


                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
               Concurs in Judgment Only as to Assignment of Error I.

                                   For the Court


                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
