[Cite as State v. Pettry, 2017-Ohio-1548.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104519




                                        STATE OF OHIO

                                                       PLAINTIFF-APPELLANT

                                                 vs.

                               BILLY RAY PETTRY, SR.

                                                              DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-585054-A

        BEFORE:           Jones, J., Stewart, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: April 27, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Kevin M. Cafferkey
55 Public Square
2100 Illuminating Building
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

         {¶1} Plaintiff-appellant, the state of Ohio, appeals the trial court’s decision to

dismiss the indictment of defendant-appellee, Billy Ray Pettry, Sr. We affirm.

         {¶2} This appeal stems from an incident that occurred in 1994. On May 2, 1994,

“D.F.” reported to police that her former boyfriend had sexually assaulted her inside his

apartment.     D.F. sought medical treatment for her injuries.    The police report listed the

suspect as Billy Ray Perry.     The day after the incident, a detective attempted to follow

up with D.F., but she had given the police an incorrect phone number and address.          The

case was then closed.

         {¶3} In 2012, evidence from the rape kit was submitted to the Bureau of Criminal

Investigation (“BCI”). A DNA profile was developed, and the results were sent to the

Cleveland police in June 2013.     In April 2014, Detective Jack Lent (“Detective Lent”) of

the Cleveland Police Department, Sex Crimes Unit, located and spoke with D.F.              She

told the detective that the suspect’s last name was Pettry, not Perry, and provided

further identifying information.    Detective Lent located Pettry, interviewed him, and

took a DNA sample.

         {¶4} On April 17, 2014, Pettry’s DNA was taken to BCI for testing against D.F.’s

rape kit. On April 29, 2014, BCI matched Pettry’s DNA to that of the unknown male in

D.F.’s vaginal swabs at frequency of occurrence of 1 in 65,620,000,000,000 unrelated

people     and    on    her   underwear    at   frequency    of     occurrence    of   1    in
9,551,000,000,000,000,000 unrelated people.

       {¶5} On May 2, 2014, the state indicted John Doe #27 and identified John Doe #27

only by his DNA profile for the rape and kidnapping of D.F. A warrant for John Doe’s

arrest was issued on May 5, 2014. It was not until January 12, 2016, that the state

moved to amend the indictment to change the name of the defendant from John Doe #27

to Billy Ray Pettry, Sr.

       {¶6} Pettry filed a motion to dismiss the indictment, arguing that he had not been

indicted within the applicable statute of limitations.   The trial court held a hearing and

granted his motion.

       {¶7} The state filed a timely notice of appeal, assigning one assignment of error

for our review, in which it argues that the trial court erred when it dismissed the

indictment.

       {¶8} A 20-year-statute of limitations applies to rape offenses.                R.C.

2901.13(A)(3)(a).     The state bears the burden of showing that prosecution was

commenced within the applicable limitations period. State v. King, 103 Ohio App.3d

210, 212, 658 N.E.2d 1138 (10th Dist.1995); State v. Martin, 8th Dist. Cuyahoga No.

100753, 2015-Ohio-761.

       {¶9} In this case, D.F. alleged that Pettry raped her on May 2, 1994.     The state

indicted John Doe #27 for the rape and kidnapping of D.F. on May 2, 2014, the day the

statute of limitations was set to expire. Although the state indicted John Doe #27, not

Pettry, it argues that the trial court erred in dismissing the indictment because law
enforcement exercised reasonable diligence in furtherance of commencing the

prosecution of Pettry. We disagree.

       {¶10} This court has recently upheld the dismissal of a John Doe indictment under

similar circumstances. State v. Gulley, 8th Dist. Cuyahoga No. 101527, 2015-Ohio-3582,

discretionary appeal not allowed by 144 Ohio St.3d 1505, 2016-Ohio-652, 45 N.E.3d

1050. In Gulley, the victim alleged she was raped on October 14, 1993, and gave police

Gulley’s name.    The police interviewed Gulley and had his address and social security

number.   The police closed the investigation shortly after the alleged rape because the

victim failed to give a formal statement.   In 2012, the victim’s rape kit was submitted for

testing to BCI. In October 2013, the victim was shown a photo array and identified

Gulley as the man who had raped her.        On October 11, 2013, the state indicted “John

Doe.” In January 2014, BCI did a DNA comparison and found that the DNA in the

profile matched Gulley’s DNA.      Two months later, the state amended the indictment to

add Gulley as the defendant. Id. at ¶ 6.

       {¶11} Gulley filed a motion to dismiss based on preindictment delay, which the

trial court granted. This court affirmed, but based on different grounds, holding that to

indict a known defendant as John Doe is contradictory to the intent behind the statute of

limitations. Id. at ¶ 16.   This court was concerned that using the name “John Doe” with

a DNA profile in the indictment, instead of naming Gulley, was insufficient because

Gulley was a named suspect at the time of the rape and, moreover, the victim again

identified Gulley from a photo array several days prior to the statute of limitations
expiring. Id. at ¶ 15.      This court concluded that reasonable diligence does not support

the use of a John Doe-DNA indictment where law enforcement had the defendant’s name

but simply failed to investigate the matter further because the victim did not show for her

interview. Id. at ¶ 16.

       {¶12} Likewise, in the case at bar, when D.F. reported the alleged rape in May

1994, she told the police that her former boyfriend assaulted her.            While the police did

have the defendant’s last name as Perry, instead of Pettry, they had Pettry’s correct

address and a description of him. In 2014, the victim again identified Pettry as the

perpetrator.1 Not only did D.F. identify Pettry before the statute of limitations expired

and the police met with and secured a buccal swab from Pettry, but, unlike what occurred

in Gulley, the DNA match in this case was made prior to the expiration of the statute of

limitations.

       {¶13} In Gulley, this court determined that a DNA match was not necessary to

indict the defendant by name when he was known at the time of the alleged rape and the

victim again identified him once the case was reopened but before the statute of

limitations expired. In this case, not only was Pettry’s identity not at issue, but the state

had a DNA match before the statute of limitations expired.

       {¶14} Because the statute of limitations in this case expired by the time the

indictment was amended to contain Pettry’s name, dismissal was proper; the underlying

       1
         The record also reflects that the defendant and D.F. have a child together, although it is
unclear whether the child was born before or after the alleged rape. Nevertheless, identity was not at
issue in this case.
prosecution was not commenced within the statutorily prescribed 20-year-time period.

Therefore, the trial court did not err by granting Pettry’s motion to dismiss. The sole

assignment of error is overruled.

       {¶15} Judgment affirmed.

       It is ordered that appellee recover of 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.




LARRY A. JONES, SR., JUDGE

MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR
