[Cite as State v. Lynch, 2018-Ohio-1078.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105122




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            CORNELIUS LYNCH

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-585501-A

        BEFORE: Celebrezze, J., Keough, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: March 22, 2018
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
BY: Jeffrey Gamso
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Cornelius Lynch (“Lynch”), brings this appeal challenging his

convictions for rape and kidnapping. Specifically, Lynch argues that the trial court erred by

denying his motions to dismiss the indictment based on preindictment delay, the state engaged in

prosecutorial misconduct, he was denied the effective assistance of counsel, and that the charges

should have been dismissed based on double jeopardy grounds. After a thorough review of the

record and law, this court affirms.

                               I. Factual and Procedural History

       {¶2} The instant appeal arose from an incident that occurred between Lynch and his

girlfriend’s daughter, M.H.   At the time of the incident, M.H. was 12 years old, and Lynch had
been living with his girlfriend, S.P., and M.H. for a few years. M.H. alleged that Lynch

sexually assaulted her on May 26, 1994. M.H. reported the incident to her mother the next

morning, and M.H. went to the hospital where a rape kit examination was performed.         M.H.

spoke with hospital staff and the police about the incident, and she indicated that Lynch was her

assailant.      Cuyahoga County Division of Children and Family Services (“CCDCFS”)

investigators also interviewed M.H. and Lynch. Approximately two weeks later, M.H. recanted

her allegations against Lynch.

        {¶3} Although M.H. recanted her allegations, her rape kit was submitted to the Ohio

Bureau of Criminal Investigation (“BCI”) for DNA testing in August 2012.           DNA testing

established that Lynch could not be excluded as the source of semen on the vaginal swab from

the rape kit.

        {¶4} After learning of the DNA match, investigators reinterviewed M.H. and S.P.    M.H.

informed the investigators that Lynch assaulted her in May 1994.

        {¶5} On May 15, 2014, in Cuyahoga C.P. No. CR-14-585501-A, the Cuyahoga County

Grand Jury returned a three-count indictment charging Lynch with (1) rape, a first-degree felony

in violation of R.C. 2907.02(A)(1)(b), with a furthermore specification alleging that Lynch

purposely compelled the victim to submit by force or threat of force, (2) rape, a first-degree

felony in violation of R.C. 2907.02(A)(1)(b), and (3) kidnapping, a first-degree felony in

violation of R.C. 2905.01(A)(4). Count 1 alleged that Lynch engaged in vaginal intercourse

with M.H., and Count 2 alleged that Lynch engaged in cunnilingus with M.H. Lynch was

arraigned on May 30, 2014. He pled not guilty to the indictment.        Shortly after Lynch was

indicted, S.P. died.

        {¶6} Lynch’s counsel filed a motion to withdraw on July 2, 2014. The trial court
granted counsel’s motion, and the court assigned a new attorney to represent Lynch on July 9,

2014.

        {¶7} On October 31, 2014, Lynch’s counsel filed motions for independent DNA analysis

and to dismiss the indictment based on preindictment delay.            Lynch’s counsel filed a

supplemental motion to dismiss based on preindictment delay on November 17, 2014. On

February 12, 2015, the trial court denied defense counsel’s motion to dismiss.

        {¶8} On August 5, 2015, Lynch’s counsel filed a motion for reconsideration of the motion

to dismiss for preindictment delay.      The trial court denied defense counsel’s motion for

reconsideration on October 2, 2015.

        {¶9} On February 2, 2016, Lynch’s counsel filed a second supplemental motion to

dismiss based on preindictment delay.     On February 12, 2016, the trial court denied defense

counsel’s motion to dismiss.

        {¶10} A jury trial commenced on March 7, 2016. On March 10, 2016, the trial court

declared a mistrial based on an issue that arose with one of the 12 jurors. On March 11, 2016,

Lynch’s second attorney filed a motion to withdraw as counsel.           The trial court granted

counsel’s motion, and the court assigned a new attorney to represent Lynch on March 17, 2016.

        {¶11} On September 9, 2016, Lynch’s counsel filed a motion to reconsider the defense’s

previous motions to dismiss based on preindictment delay.      After holding a hearing, the trial

court denied the motion to reconsider on September 13, 2016.

        {¶12} A second jury trial commenced on September 15, 2016. At the close of trial, the

jury found Lynch guilty on all three counts on September 20, 2016. The trial court referred

Lynch to the probation department for a presentence investigation report and set the matter for

sentencing.
       {¶13} The trial court held a sentencing hearing on October 20, 2016. The trial court

merged Counts 1 and 3 for sentencing purposes. The state elected to sentence Lynch on Count

1. The trial court imposed a prison term of 15 years to life on Count 1, and a prison term of 15

years to life on Count 2. The trial court ordered the counts to run concurrently. The trial court

found Lynch to be a sexually oriented offender and reviewed his reporting requirements.

       {¶14} On November 1, 2016, Lynch filed the instant appeal challenging his convictions.

He assigns four errors for review, which we will address out of order for ease of discussion:

       I. [Lynch’s] rights to due process and a fair trial were violated when the trial court
       denied his motion to dismiss for pre-indictment delay and then denied his motion
       to reconsider that ruling.

       II. Prosecutorial misconduct encouraging the jury to convict based on sympathy
       for M.H. violated [Lynch’s] constitutional rights to a fair trial and due process and
       to be convicted based only on the evidence against him.

       III. Counsel provided constitutionally ineffective assistance when he failed to
       object to the prosecutor’s improper argument as set forth in the [s]econd
       [a]ssignment of [e]rror.

       IV.    Because there was no manifest necessity for the trial court to grant a

       mistrial, the constitutional protection against being twice put in jeopardy for the

       same offense required that the charges against [Lynch] be dismissed.

                                      II. Law and Analysis

                                    A. Preindictment Delay

       {¶15} In his first assignment of error, Lynch argues that the trial court erred by denying

his motions to dismiss the indictment based on preindictment delay.

       {¶16} The statute of limitations for a criminal offense is a defendant’s primary protection

against overly stale criminal charges. U.S. v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971). However, in some circumstances, the Due Process Clause of the Fifth
Amendment provides limited protection against preindictment delay. U.S. v. Lovasco, 431 U.S.

783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The Ohio Supreme Court has held that “[a]n

unjustifiable delay between the commission of an offense and a defendant’s indictment

therefor[e], which results in actual prejudice to the defendant, is a violation of the right to due

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

the syllabus.

       {¶17} The Ohio Supreme Court recently reaffirmed a two-part, burden-shifting test to

determine whether preindictment delay constitutes a due process violation. State v. Jones, 148

Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13 (“Jones I”). First, the burden is on the

defendant to present evidence of actual prejudice; once a defendant does so, the burden then

shifts to the state to produce evidence of a justifiable reason for the delay.   Id. at ¶ 13, citing

State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). “A court must determine

whether the defendant has established actual prejudice to his ability to defend himself before

independently determining whether the state met its burden of establishing a justifiable reason for

the delay in bringing charges.”         State v. Hunter, 8th Dist. Cuyahoga No. 104789,

2017-Ohio-4180, ¶ 11, citing Jones I at ¶ 16-18, 29.

       A determination of actual prejudice involves “‘a delicate judgment’” and a
       case-by-case consideration of the particular circumstances. State v. Walls, 96
       Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting [Marion at 325].
        A court must “consider the evidence as it exists when the indictment is filed and
       the prejudice the defendant will suffer at trial due to the delay.” Id. [The Ohio
       Supreme Court] has suggested that speculative prejudice does not satisfy the
       defendant’s burden. Id. at ¶ 56 (noting that Walls’s claims of prejudice were
       speculative at best); [State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
       N.E.3d 127, ¶ 100] (noting the difficulty for defendants claiming unconstitutional
       preindictment delay because “proof of prejudice is always speculative”).

       The “possibility that memories will fade, witnesses will become inaccessible, or
       evidence will be lost is not sufficient to establish actual prejudice.” (Emphasis
       [sic].) Id. at ¶ 105, citing Marion at 325-326. Those are “the real possibilit[ies]
       of prejudice inherent in any extended delay,” and statutes of limitations
       sufficiently protect against them. Marion at 326. That does not mean,
       however, that demonstrably faded memories and actually unavailable witnesses or
       lost evidence cannot satisfy the actual-prejudice requirement.

Jones I at ¶ 20-21.

       {¶18} In the instant matter, during the trial court’s September 13, 2016 hearing on

appellant’s motion to reconsider, defense counsel argued that Lynch suffered actual prejudice as

a result of the significant delay in prosecution. Specifically, defense counsel explained that “the

main reason for the actual prejudice [is] the death of [S.P.] * * * she made statements at the time

of the incident letting at least hospital personnel know as well as police that she did not believe

[M.H.] was telling the truth.” (Tr. 581.) Defense counsel further asserted that the state was

unable to show that the delay in prosecution was reasonable. The state argued that S.P.’s

unavailable testimony would not be exculpatory due to the DNA evidence linking Lynch to

M.H.’s rape kit. The state explained that the police ceased the active investigation in 1994

because M.H. recanted her allegations against Lynch, and that the case was reopened when the

prosecution received the new DNA evidence linking Lynch to the rape kit.

       {¶19} The trial court indicated that it reviewed the case law set forth in Jones I, State v.

Jones, 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176 (“Jones II”), Luck, 15 Ohio St.3d 150,

472 N.E.2d 1097, and Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199. In denying defense

counsel’s motion to reconsider, the trial court found the facts of this case to be distinguishable

from Jones II. The trial court concluded, “I’m not convinced that actual prejudice has occurred

from the delay.   Even if we get to, you know, the point of actual prejudice in this case. In

looking at it when the burden shifts to the State to show that it was not unjustifiable, you know,

based on the facts here, I do find that a delay was justifiable anyway.” (Tr. 596-597.)
       {¶20} In reviewing a trial court’s decision on a motion to dismiss for preindictment delay,

this court applies a de novo standard of review to the legal issues, but we afford great deference

to the trial court’s findings of fact. Hunter, 8th Dist. Cuyahoga No. 104789, 2017-Ohio-4180,

at ¶ 16, citing State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, and State v.

Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 45.

       {¶21} In the instant matter, Lynch argues that he was prejudiced by the preindictment

delay because S.P. passed away and, thus, was not available to testify; CCDCFS records were

lost; and information regarding the rape kit’s chain of custody was lost.

       {¶22} First, regarding S.P.’s lost testimony, Lynch asserts that (1) S.P. knew that M.H.’s

allegations could not be true; (2) S.P. told the hospital personnel that Lynch was in bed with her

at the time that M.H. alleged he raped her; and (3) S.P. opined that M.H. likely made up the

allegations because she did not want Lynch to marry her.

       {¶23} Second, regarding the lost CCDCFS records, Lynch argues that there are no records

of the investigation or notes from the interviews conducted by CCDCFS investigators. The

only CCDCFS record available is an incident report indicating that M.H.’s allegation was

unsubstantiated. Lynch asserts that these notes and records “would contain further information

tending to throw doubt on M.H.’s claims.” Appellant’s brief at 5.

       {¶24} Third, regarding the lost chain of custody information, Lynch argues that there is

no information about how the rape kit was stored by the Cleveland Police Department in the

Fourth District’s property room or how it was transported to the main property room downtown.

He contends that this information is important because there was not a complete DNA profile

extracted from the semen from M.H.’s vagina in the rape kit.

       {¶25} After reviewing the record, we find that Lynch fails to demonstrate actual
prejudice. Although Lynch offered an explanation of what purportedly exculpatory testimony

S.P. would have offered, the unavailable testimony must be balanced against the evidence at the

time of the indictment to determine whether Lynch would suffer actual prejudice. Jones II, 8th

Dist. Cuyahoga No. 101258, 2017-Ohio-176, at ¶ 6, citing Jones I, 148 Ohio St.3d 167,

2016-Ohio-5105, 69 N.E.3d 688, at ¶ 24.

        {¶26} As noted above, the DNA evidence available at the time of the indictment revealed

that Lynch could not be excluded as the source of semen on the vaginal swab from M.H.’s rape

kit.   We cannot say that S.P.’s testimony that the allegations against Lynch could not be true

would minimize or eliminate the impact of the DNA evidence and bolster the defense.

Furthermore, Lynch fails to demonstrate actual prejudice by speculating that he could have

asserted an alibi based on S.P.’s testimony that he was in bed with her at the time M.H. alleged

that he raped her.

        {¶27} Although S.P. was not available to testify at trial, Lynch acknowledges that “[w]e

know much of what [S.P.] would have testified to from her statements as they appear in [M.H.’s]

medical record from the hospital at the time they took the rape kit.” Appellant’s brief at 4.

Regarding S.P.’s unavailable testimony about M.H.’s motive for fabricating the allegations, the

record reflects that Lynch was available to testify, and did, in fact, testify about any motives M.H.

may have had for fabricating the allegations.   Lynch testified that S.P.’s children did not care for

him, did not want him in the home, and wanted S.P. to be with their father rather than Lynch.

Accordingly, S.P.’s testimony on this point would have been cumulative to Lynch’s testimony.

        {¶28} Lynch’s claim of prejudice regarding the loss of CCDCFS records or notes is

speculative at best.    He presumes that the CCDCFS investigators took notes during the

interviews of M.H. and Lynch, and retained these notes in the case file. As noted above, M.H.
recanted her allegations against Lynch approximately two weeks after the May 26, 1994 incident.

 Lynch asserts that the missing CCDCFS records “would provide a concrete explanation of why

there was no basis for the prosecution.” Appellant’s reply brief at 5. Lynch presumes that the

CCDCFS records or notes contained a “concrete explanation” — other than the fact that M.H.

recanted — as to why the allegations were found to be unsubstantiated.

       {¶29} Lynch’s claim of prejudice regarding the loss of chain of custody information is

also speculative. There is no evidence that the information regarding the storage conditions at

the Fourth District or how the rape kit was transported to the main property room was initially

preserved but subsequently lost as a result of the delay.         The missing information may be

evidence of an incomplete chain of custody; however, this defense would have existed regardless

of the passage of time.    See Jones II, 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176, at ¶ 9.

Furthermore, several witnesses — BCI forensic scientist Andrea Dennis, Cleveland Police

Officer Alex Parente, BCI forensic scientist Marissa Keeley, Cleveland Police Detective Michael

Moctezuma, and Cuyahoga County Prosecutor’s Office Investigator Timothy Clark — were

available to testify regarding the rape kit’s collection, sealing, storage, and transportation.

       {¶30} Assuming, arguendo, that Lynch sufficiently demonstrated actual prejudice, we

find that the trial court properly determined that the delay in prosecution was justified.

       {¶31} Lynch argues that the state’s delay in bringing the charges against him was not

justifiable because M.H. identified Lynch as her rapist both to S.P. and the police, and the police

and prosecution allowed the rape kit to sit untested for 18 years. We disagree.

       {¶32} The record reflects that the delay was a result of M.H. recanting her rape allegation

approximately two weeks after reporting the allegation to her mother and the police in May 1994.

 Although a rape kit was conducted at the time of the incident, DNA evidence was not
discovered until 2014 when the rape kit was tested by BCI.      The DNA evidence establishing

that Lynch could not be excluded as a contributor to the DNA profile from M.H.’s rape kit was

“new evidence” that justified the delayed indictment.

       {¶33} Based on the foregoing analysis, Lynch’s first assignment of error is overruled.

                                 B. Prosecutorial Misconduct

       {¶34} In his second assignment of error, Lynch argues that he was deprived of his

constitutional rights to a fair trial and due process when the prosecutor engaged in misconduct

during closing arguments.

       {¶35} Closing arguments must be viewed in their entirety to determine whether the

disputed remarks were prejudicial. State v. Mann, 93 Ohio App.3d 301, 312, 638 N.E.2d 585

(8th Dist.1993).   An appellant is only entitled to a new trial when a prosecutor asks improper

questions or makes improper remarks and those questions or remarks substantially prejudiced

appellant. State v. Pate, 8th Dist. Cuyahoga No. 95382, 2011-Ohio-1692, ¶ 19, citing State v.

Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984).

       {¶36} A prosecutor has a duty in closing argument to avoid efforts to obtain a conviction

by going beyond the evidence before the jury.           Smith at 14.   “Prosecutors must avoid

insinuations and assertions calculated to mislead. They may not express their personal beliefs

or opinions regarding the guilt of the accused, and they may not allude to matters not supported

by admissible evidence.”    State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990).

However, “‘[i]n the tension and turmoil of a trial, both the prosecution and the defense have wide

latitude in summation as to what the evidence has shown and what reasonable inferences may be

drawn therefrom.’” Id. at 165, quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773

(1970). See also State v. Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996) (the prosecutor is
entitled to some latitude in closing argument as to what the evidence presented has shown).

          {¶37} The test for prosecutorial misconduct is whether the prosecutor’s remarks were

improper and, if so, whether they prejudicially affected substantial rights of the accused. State

v. Smith, 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000), citing Smith, 14 Ohio St.3d at 14, 470

N.E.2d 883. The touchstone of analysis “is the fairness of the trial, not the culpability of the

prosecutor.” Id., citing Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78

(1982).

          {¶38} In the instant matter, Lynch takes issue with the prosecutor’s comments about the

rape kit examination procedure that M.H. went through at the hospital after disclosing the

allegations against Lynch to her mother. During closing arguments, the prosecutor stated, in

relevant part,

          Now, let’s talk about what happened to [M.H.] as a result of her disclosing what
          [Lynch] did to her.

          When she said what he did, when she said what he did, this is what happened to
          her. She had to go to the hospital. As a 12-year-old girl, she had to have her
          legs up in stirrups with her knees apart, a speculum inserted into her vagina,
          swabs stuck five to six centimeters into her vagina, swabbing her vagina, and
          swabbing her cervix. That’s what happened as a result of [M.H.] telling her
          mom what [Lynch] did to her.

(Tr. 1284.) The prosecutor continued, “[a]t the hospital [M.H.] says who did this to her.

Cornelius Lynch. And [Dr. Keith Lim] puts her in the stirrups, and he has her spread her legs.

He has to insert a speculum into a child, all things [M.H.] had to endure for telling people what

[Lynch] did to her[.]” (Tr. 1287.)

          {¶39} Lynch argues that “[t]here was no proper reason, no justification for [the

prosecutor’s] gratuitous statements to the jury.   [The statements’] purpose, their only purpose,

was to inflame, to prejudice, to create sympathy for M.H. And that is an improper purpose.”
Appellant’s brief at 8. We disagree.

       {¶40} Initially, we note that defense counsel did not object to the prosecutor’s statements

about the rape kit examination procedure. Accordingly, Lynch has waived the issue on appeal

except for plain error. Pate, 8th Dist. Cuyahoga No. 95382, 2011-Ohio-1692, at ¶ 21, citing

State v. Owens, 51 Ohio App.2d 132, 146, 366 N.E.2d 1367 (9th Dist.1975). Accord State v.

Harris, 8th Dist. Cuyahoga No. 104329, 2017-Ohio-2751, ¶ 83. Under Crim.R. 52(B), “[p]lain

errors or defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” Moreover, “[p]lain error does not exist unless, but for the error, the

outcome at trial would have been different.” State v. Joseph, 73 Ohio St.3d 450, 455, 653

N.E.2d 285 (1995), citing State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).

       {¶41} One of the defense’s theories of the case was that M.H. made up the allegations

against Lynch because she did not want her mother to marry him. On direct examination,

Lynch testified that there was stress and tension in the home, both before and after M.H. alleged

that he raped her. He explained that S.P.’s children did not care for him, did not want him in

the home, and wanted S.P. to be with their father. During closing arguments, defense counsel

stated that when S.P. took M.H. to the hospital, S.P. told the doctors that she was sure that M.H.

made up the allegations against Lynch “because [her children] want [S.P.] to get back with their

natural father[.]” (Tr. 1304-1305.) Defense counsel further explained that while S.P. was

going to marry Lynch, her children did not want him around and wanted him out of the house.

       {¶42} After reviewing the record and the purportedly improper remarks in context, we

cannot say that prosecution’s comments about the rape kit examination procedure were improper.

 The prosecutor’s comments about the rape kit examination procedure were made to rebut the

defense’s theory that M.H. fabricated the allegations and to support the prosecution’s theory that
Lynch did, in fact, rape M.H. Furthermore, the prosecutor’s comments were supported by

evidence in the record.

       {¶43} M.H. testified that her mother took her to the hospital where an examination was

performed “[i]n [her] vagina area.” (Tr. 1066.) Dr. Lim testified that he conducted M.H.’s

rape kit examination and he described the procedure in detail. Based on this evidence, the

prosecutor reasonably inferred that M.H. would not assent to or endure an invasive rape kit

examination if she made up the allegations.       The prosecutor’s comments fairly represented the

state’s interpretation of the evidence that it presented during trial, and the prosecutor is entitled to

latitude to argue the state’s interpretation of the evidence. See State v. Ketterer, 111 Ohio St.3d

70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 172.

       {¶44} Finally, the trial court instructed the jury that it must decide the case based on the

evidence presented and that “closing arguments do not constitute evidence.” (Tr. 1322.) We

presume that the jury heeded the trial court’s instructions. State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 157.

        {¶45} Based on the foregoing analysis, Lynch’s second assignment of error is overruled.

                                        C. Double Jeopardy

        {¶46} In his fourth assignment of error, Lynch argues that the charges against him should

have been dismissed because there was not a manifest necessity for declaring a mistrial in the

first prosecution.

        {¶47} While the jury was deliberating in the first trial, the trial court received a note from

the foreperson that indicated an issue arose with one of the jurors. Specifically, the note

indicated that Juror 7 was “exhibiting very serious signs of mental or emotional problems.          He

will not let anyone else speak, constantly interrupts, makes threats, slurring his words and
admitted, ‘I’m having problem with my head.’ Also he demands the transcripts.” (Tr. 513.)

The trial court shared the note with the parties and made it a part of the record.    The trial court

had already excused the alternate juror at the time it received the note.            The trial court

questioned the foreperson to learn more about the issue and to determine whether the issue had

been resolved.

        {¶48} The foreperson stated that Juror 7 was interrupting other jurors and not letting

anybody speak. (Tr. 516.) The foreperson further explained that Juror 7 also made threats to

both the jury as a whole and to specific individual jurors, was slurring his words and incoherent,

and engaging in other disruptive conduct. (Tr. 516.) The foreperson stated that two of the

jurors indicated that they do not feel safe in the deliberation room with Juror 7. (Tr. 517.)

Juror 7 was adamant about using the notes he took throughout the trial although the trial court

instructed the jurors not to do so.

        {¶49} The trial court questioned Juror 7 about these issues. Furthermore, the trial court

questioned the individual jurors separately about the issue.

        {¶50} After polling the individual jurors, the trial court concluded that Juror 7 “is unable

to follow the instructions given by the Court, is unable to live up to his oath as a juror.   And I

don’t think that leaving this juror on that jury, that they can come to a fair and just resolution in

this case.” (Tr. 571.) Before deciding whether to declare a mistrial, the trial court attempted

to contact the alternate juror that had been previously discharged. The trial court was unable to

reach the alternate juror, and as a result, declared a mistrial.

        {¶51} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, made applicable to the states through the Fourteenth Amendment, protects a

criminal defendant from multiple prosecutions for the same offense. Oregon v. Kennedy, 456
U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Double Jeopardy Clause does not,

however, bar reprosecution in every case.         Where a defendant requests a mistrial, double

jeopardy does not bar a retrial unless the defendant’s request for a mistrial is precipitated by

prosecutorial misconduct intended to provoke a defendant into seeking a mistrial.        N. Olmsted v.

Himes, 8th Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 36-37.

        {¶52} In the instant matter, we initially find no merit to Lynch’s assertion that he

explicitly objected to the trial court declaring a mistrial.   In fact, the record reflects that defense

counsel requested a mistrial after the foreperson informed the trial court about the issues that

arose with Juror 7: “Your Honor, I would — I think we’re in a position now — with the

alternate being excused yesterday, I think we’re in the same position we would be in with a hung

jury, and I would request a mistrial[.]” (Tr. 518.) Defense counsel reiterated this request

while the trial court was polling the individual jurors about these issues: “Your Honor, we’re

asking for a mistrial.” (Tr. 552.)

        {¶53} Lynch appeared to disagree with defense counsel’s request for a mistrial. When

counsel stated that the defense was asking for a mistrial, Lynch asserted, “[n]o, no, we’re not.”

(Tr. 553.) In his appellate brief, Lynch appears to suggest that this statement demonstrates that

he wanted to proceed with 11 jurors.

        {¶54} It is well established that “although a defendant has the right to counsel or the right

to act pro se, a defendant does not have any right to ‘hybrid representation.’” State v. Mongo,

8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139, ¶ 13, quoting State v. Martin, 103 Ohio St.3d

385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 29.               This court has explained,“when counsel

represents a criminal defendant, a trial court may not entertain a defendant’s pro se motion.”

Mongo at ¶ 14.
        {¶55} Lynch was represented by counsel in the first prosecution, and thus, the trial court

could not entertain Lynch’s pro se objection to granting a mistrial.       Furthermore, when the trial

court declared a mistrial, neither defense counsel nor Lynch objected. Lynch does not argue nor

does the record indicate that the state invited a mistrial. Accordingly, the Double Jeopardy

Clause does not bar a second prosecution.

        {¶56} Assuming, arguendo, that Lynch objected to a mistrial, the record reflects that a

manifest necessity existed for the mistrial.

        Where a defendant objects to a mistrial, the defendant may be retried if “manifest
        necessity” exists for the mistrial, State v. Gunnell, 132 Ohio St.3d 442,
        2012-Ohio-3236, 973 N.E.2d 243, ¶ 25, or if “‘the ends of public justice would
        otherwise be defeated.’” State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900,
        quoting State v. Widner, 68 Ohio St.2d 188, 189, 429 N.E.2d 1065 (1981), citing
        [Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)].
         “Manifest necessity” means a “high degree” of necessity must exist before a
        mistrial may properly be declared. However, it does not require a showing that a
        mistrial was “absolutely necessary” or that there was no other alternative but to
        declare a mistrial. Washington at 511.

        There is no “mechanical formula” for determining what constitutes a “manifest
        necessity” for a mistrial: “[T]he manifest-necessity standard ‘abjures the
        application of any mechanical formula by which to judge the propriety of
        declaring a mistrial in the varying and often unique situations arising during the
        course of a criminal trial.’” [Gunnell at ¶ 27], quoting Illinois v. Somerville, 410
        U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). What constitutes a
        manifest necessity for a mistrial is, therefore, left to the discretion of the trial court
        to be decided on a case-by-case basis, taking into account all the relevant
        circumstances.

State v. Marshall, 2014-Ohio-4677, 22 N.E.3d 207, ¶ 21-22 (8th Dist.).

        {¶57} Lynch argues that there was no manifest necessity for the trial court to declare a

mistrial.   In support of his argument, Lynch suggests that although the alternate juror had been

discharged, the alternate could have been brought back. Lynch asserts that the trial court failed

to investigate the possibility of bringing back the alternate. These arguments are unsupported
by the record.

         {¶58} The record reflects that the trial court made multiple attempts to reach the alternate

juror.     The jury commissioner attempted to contact the alternate juror, left the alternate a

voicemail, and told the alternate to return the phone call.          (Tr. 520.)    Before declaring a

mistrial, the trial court stated, “I would like to see if the alternate is available,” and “I’m going to

* * * see if we can get ahold of the alternate, if the alternate is available.” (Tr. 530, 566.)

When the trial court declared a mistrial, it explained, “we don’t have the alternate here to replace

[Juror 7] with an alternate. It’s my understanding the alternate was discharged from jury service

yesterday after the Court had let the alternate go from this trial, prior to this jury’s deliberations.”

 (Tr. 571.)

         {¶59} After review, we find that the trial court acted reasonably in determining that a

manifest necessity existed for the declaration of a mistrial.       The record reflects that the trial

court exercised sound discretion in determining that Juror 7 was unable to follow the court’s

instructions and perform his duty. After learning about the issues that arose with Juror 7, the

trial court conducted a thorough inquiry, questioning the foreperson, Juror 7, and each juror

separately. The trial court permitted defense counsel and the prosecution to question the jurors

as well.     Furthermore, before deciding to discharge Juror 7 or declare a mistrial, the trial court

made multiple attempts to reach the alternate juror. The trial court only declared a mistrial after

determining that (1) the jury would not be able to reach a fair and just resolution in the case with

Juror 7 on the panel and (2) the alternate juror could not be reached. Accordingly, the trial court

did not abuse its discretion by determining that there was a manifest necessity to declare a

mistrial.

         {¶60} Finally, Lynch cites State v. Davis, 8th Dist. Cuyahoga No. 91324,
2009-Ohio-5217, for the proposition that the case could have and should have gone forward with

11 jurors rather than the trial court declaring a mistrial.   In Davis, both the defendant and the

state consented to proceeding with an 11-person jury. Id. at ¶ 17. In this case, neither Lynch

nor the state requested or consented to proceeding with 11 jurors.            Accordingly, Lynch’s

reliance on Davis is misplaced.

       {¶61} Based on the foregoing analysis, Lynch’s fourth assignment of error is overruled.

                               D. Ineffective Assistance of Counsel

       {¶62} In his third assignment of error, Lynch argues that his trial counsel provided

ineffective assistance.

       {¶63} In order to establish a claim of ineffective assistance of counsel, appellant must

prove (1) his counsel was deficient in some aspect of his representation, and (2) there is a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have been

different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).          In

Ohio, every properly licensed attorney is presumed to be competent and, thus, a defendant

claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio

St.3d 98, 100, 477 N.E.2d 1128 (1985). In determining whether the defendant has been denied

the effective assistance of counsel, the test is “whether the accused, under all the circumstances,

* * * had a fair trial and substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341

N.E.2d 304 (1976), paragraph four of the syllabus.

       {¶64} In the instant matter, Lynch first argues that counsel provided ineffective assistance

by failing to object to the prosecutor’s comments during closing arguments about the rape kit

examination procedure. Based on our resolution of Lynch’s second assignment of error, we

cannot say that counsel provided ineffective assistance by failing to object to the prosecutor’s
comments about the rape kit examination. Having found that the prosecutor’s comments were

not improper, we cannot say that counsel’s failure to object to the comments prejudiced Lynch.

See State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 157;

State v. Hill, 8th Dist. Cuyahoga No. 95379, 2011-Ohio-2523, ¶ 42.

        {¶65} Lynch further argues that counsel provided ineffective assistance by failing to

move to dismiss the case on double jeopardy grounds after the first prosecution was declared a

mistrial. Based on our resolution of Lynch’s fourth assignment of error, we cannot say that

counsel provided ineffective assistance by failing to move for a dismissal on double jeopardy

grounds. As noted above, when the issues arose with Juror 7, defense counsel requested that

the trial court declare a mistrial.   There is nothing in the record indicating that the state invited

the mistrial.   Furthermore, the trial court did not abuse its discretion in determining that there

was a manifest necessity to declare a mistrial.       The trial court determined that Juror 7 was

unable to follow the court’s instructions and perform his duty, and the court was unable to

replace Juror 7 with an alternate juror.

        {¶66} Based on the foregoing analysis, Lynch’s third assignment of error is overruled.

                                           III. Conclusion

        {¶67} After thoroughly reviewing the record, we find that the trial court did not err in

denying Lynch’s motions to dismiss for preindictment delay; the prosecutor did not commit

misconduct during closing arguments; the trial court did not abuse its discretion by determining

that there was a manifest necessity to declare a mistrial, and the second prosecution was not

barred by the Double Jeopardy Clause; and Lynch was not denied his constitutional right to

effective assistance of counsel.

        {¶68} Judgment affirmed.
       It is ordered that 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.



FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, P.J., and
LARRY A. JONES, SR., J., CONCUR
