[Cite as State v. Lynch, 2019-Ohio-4297.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28291
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-275
                                                  :
 WESLEY LYNCH                                     :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 18th day of October, 2019.

                                             ...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
      Attorney for Defendant-Appellant

                                            .............
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FROELICH, J.

       {¶ 1} After the trial court overruled his motion to dismiss, Wesley Lynch pled no

contest1 in the Montgomery County Court of Common Pleas to having weapons while

under disability, a third-degree felony. The trial court found him guilty and sentenced

him to community control. Lynch appeals, claiming that the trial court erred in denying

his motion to dismiss.    For the following reasons, the trial court’s judgment will be

affirmed.

                           I. Factual and Procedural History

       {¶ 2} According to Detective Brian Dedrick’s testimony at the hearing on the motion

to dismiss, Dayton police officers executed a search warrant on October 5, 2015, at a

duplex on Third Street. The building was divided into upper (Unit B) and lower (Unit A)

residences; the search warrant was for Unit A. Unit A had two bedrooms and a common

bathroom. Officers found a Kel-Tech 380 handgun, along with court-related paperwork

belonging to Lynch and a cell phone, on top of the vanity in the bathroom; Dedrick

described the vanity as approximately seven feet tall. The record does not provide

additional details about the search of the residence, but we infer, based on the indictment,

that drug paraphernalia also was located during the search.

       {¶ 3} Four individuals, including Lynch, were in Unit A during the execution of the

warrant. Dedrick asked Lynch about the gun. Lynch told Dedrick that he did not have

any knowledge of the gun or anything else found during the search.



1 The trial court’s judgment entry incorrectly states that Lynch entered a guilty plea. This
typographical error may be corrected with a nunc pro tunc entry.
                                                                                          -3-


       {¶ 4} The police ordered DNA testing of the gun.          The results, which were

available in June 2016, indicated that Lynch’s DNA was on the gun. The case was

ultimately presented to the Prosecutor’s Office for consideration in January 2018.

       {¶ 5} On April 11, 2018, Lynch was indicted for having weapons while under

disability and possession of drug paraphernalia, both based on conduct that allegedly

occurred on October 5, 2015. In June 2018, Lynch moved to dismiss the indictment,

claiming unjustifiable preindictment delay by the State. Lynch argued that his father, now

deceased, was the only person who could state how the gun came to be on top of the

vanity where it was found. The State opposed the motion, noting that Lynch’s father was

not interviewed at the time of the incident, and two other individuals were present and

living in the home at the time of the offense. The State asserted that any prejudice was

speculative.

       {¶ 6} The trial court held a hearing on the motion to dismiss on August 24, 2018,

during which Detective Dedrick and Lynch testified. When asked why the case was

presented in January 2018, Dedrick responded, “I saw the case needed to be presented

and presented it.” (Tr. at 16.)

       {¶ 7} Lynch testified that his father, Wesley Mosley, leased Unit A, and that he

(Lynch), his uncle, and his girlfriend sometimes stayed there.         The three men and

Lynch’s girlfriend were present at the residence on October 5, when the search warrant

was executed. All four individuals were arrested that day.

       {¶ 8} Lynch testified that the Kel-Tech handgun belonged to his father, and stated

that his father had owned it “for a couple years.” Lynch said that he had seen the weapon

“a little bit before” 2014, prior to his father’s moving into Unit A. Lynch explained that he
                                                                                          -4-


had handled the gun, moving it or putting it under a mattress when his father left it around.

Lynch indicated, however, that he had “never handled it after that,” and had never seen

the gun at the Third Street residence. When asked if he knew how the gun came to be

on top of the vanity, Lynch responded, “You’d have to ask my dad.” (Tr. at 20.) He

stated that he did not see his father put it there and had no idea how it got there. (Id. at

21.) Lynch testified that his father died in January 2017 (a year prior to the indictment).

       {¶ 9} On cross-examination, Lynch indicated that he recognized the court-related

paperwork as belonging to him, and he acknowledged that it was dated March 20, 2015.

When asked how his court paperwork had gotten on top of the vanity, Lynch again

responded, “Something you have to ask my dad.”             (Tr. at 25.)    However, Lynch

acknowledged that he did not know if his father was the person who put the gun on top

of the vanity. (Id. at 26.)

       {¶ 10} On November 8, 2018, the trial court overruled the motion to dismiss,

reasoning that Lynch had not shown actual prejudice and “did not show that the

exculpatory evidence could not be obtained by other means.” Lynch subsequently pled

no contest to having weapons while under disability, in exchange for which Lynch agreed

to forfeit the weapon and the State agreed to dismiss the drug paraphernalia charge.

The court subsequently sentenced Lynch to community control.

       {¶ 11} Lynch appeals, claiming that the trial court erred in denying his motion to

dismiss.

                                 II. Preindictment Delay

       {¶ 12} “Delay between a defendant’s involvement in alleged criminal conduct and

an indictment involving such conduct may deprive a defendant of his constitutionally
                                                                                        -5-

protected due process rights.” State v. Moore, 2017-Ohio-1307, 88 N.E.3d 593, ¶ 24 (2d

Dist.), citing State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of

the syllabus.   However, “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. Therefore, “[w]hen a defendant alleges that he has

been prejudiced by the State’s pre-indictment delay in pursuing a case, the defendant

must first produce evidence demonstrating that the delay has caused actual prejudice to

his [or her] defense.” State v. Shoopman, 2d Dist. Montgomery No. 27182, 2017-Ohio-

2612, ¶ 8, citing Luck at 157-158.      “Then, if the defendant has established actual

prejudice, the State must produce evidence of a justifiable reason for the delay.” Id.,

citing Luck at 158.

       {¶ 13} “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 Luck at

157-158. “A determination of actual prejudice involves ‘ “a delicate judgment” ’ and a

case-by-case consideration of the particular circumstances.” Id. at ¶ 20, quoting State

v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United

States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “[S]peculative

prejudice does not satisfy the defendant’s burden.” Id.

       {¶ 14} “A reviewing court must scrutinize a defendant’s claim of prejudice in light

of the particular evidence that was lost or is unavailable as a result of the delay and, in

particular, consider the effect of the lost evidence on the defense[.]” Shoopman at ¶ 9,

citing Jones at ¶ 23; State v. Morgan, 2d Dist. Clark No. 2018-CA-103, 2019-Ohio-3691,
                                                                                            -6-


¶ 86-88. “The death of a potential witness during the preindictment period can constitute

prejudice, but only if the defendant can identify exculpatory evidence that was lost and

show that the exculpatory evidence could not be obtained by other means.” State v.

Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 103.

       {¶ 15} The Ohio Supreme Court has commented that “[t]he burden upon a

defendant seeking to prove that preindictment delay violated due process is ‘ “nearly

insurmountable,” ’ especially because proof of prejudice is always speculative. Adams

at ¶ 100, citing United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012).

       {¶ 16} On the record before us, the trial court did not err in denying Lynch’s motion

to dismiss. The parties agree that Lynch’s DNA was found on the handgun, and Lynch

acknowledged that he had previously handled the gun, although he claimed that the

handling occurred prior to 2014 and prior to his father’s living at the Third Street residence.

       {¶ 17} Although Lynch stated that his father would know how the gun and his court

paperwork came to be on top of the vanity, Lynch acknowledged on cross-examination

that he did not see his father place the gun on the vanity and he did not know if his father

was the person who put the gun on top of the vanity. Lynch’s father was not interviewed

at the time of the offense, and there is nothing in the record to suggest that he made a

formal statement at any time thereafter. Based on the record, it is speculative whether

Lynch’s father put the gun on the vanity or otherwise knew who placed it there. Likewise,

it is possible that Lynch’s uncle and girlfriend, who were living at the residence and

present when the police executed the search warrant, could provide information about

how the gun came to be on the vanity.          Accordingly, Lynch failed to establish that

exculpatory evidence was lost as a result of his father’s death and that the evidence could
                                                            -7-


not be obtained by other means.

      {¶ 18} Lynch’s assignment of error is overruled.

                                     III. Conclusion

      {¶ 19} The trial court’s judgment will be affirmed.

                                    .............



WELBAUM, P.J. and TUCKER, J., concur.


Copies sent to:

Mathias H. Heck
Lisa M. Light
Robert Alan Brenner
Hon. E. Gerald Parker Jr.
