[Cite as State v. Owens, 2015-Ohio-3881.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                   No. 102276



                                    STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                                        ROY OWENS

                                                   DEFENDANT-APPELLANT




                          JUDGMENT:
               AFFIRMED IN PART, REVERSED IN PART
                         AND REMANDED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                               Case No. CR-13-578405-A

        BEFORE:             Stewart, J., E.A. Gallagher, P.J., McCormack, J.

        RELEASED AND JOURNALIZED: September 24, 2015
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Mary Weston
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} Just days before the statute of limitations was to expire, the state

of Ohio indicted defendant-appellant Roy Owens for rape. In addition to the

victim’s allegations, the state had in its possession DNA evidence obtained

from the victim at the time of the rape, but not tested for nearly 19 years. The

test result was positive for Owens’s DNA. Owens filed a motion to dismiss the

indictment on grounds of preindictment delay, arguing that the delay

prejudiced him because he was unable to obtain evidence in his defense and

that his memory of the incident, as well as the victim’s memories and those of

other potential witnesses, had faded. The court denied the motion and Owens

pleaded no contest, leading to his conviction. On appeal, Owens argues that

the court erred by denying his motion to dismiss and that the court erred by

sentencing him under the law applicable at the time the alleged rape occurred.

      {¶2} The statute of limitations for a criminal offense is a defendant’s

primary protection against overly stale criminal charges. United States v.

Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).        In some

circumstances, however, the Due Process Clause of the Fifth Amendment has

been applied to provide additional protection against egregious delay in

instituting prosecutions.   United States v. Lovasco, 431 U.S. 783, 97 S.Ct.

2044, 52 L.Ed.2d 752 (1977). To establish that preindictment delay violated
the Due Process Clause, a defendant must first show that the delay caused

actual and substantial prejudice to his right to a fair trial and, second, that the

state delayed prosecution to gain a tactical advantage or slowed the process

down for some other impermissible reason. United States v. Gouveia, 467 U.S.

180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), citing Lovasco at 789; State v.

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

syllabus. In State v. Whiting, 84 Ohio St.3d 215, 1998-Ohio-575, 702 N.E.2d

1199, the Ohio Supreme Court held that the second element of the test requires

the state to produce evidence of a justifiable reason for the delay. Id. at 217.

Decisions granting or denying a motion to dismiss for preindictment delay are

reviewed for an abuse of discretion. State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 33, citing State v. Parson, 6 Ohio St.3d 442,

445, 453 N.E.2d 689 (1983).

      {¶3} Owens does not so much argue that he suffered actual prejudice

from the delay in bringing this prosecution; instead, he argues that the test for

establishing preindictment delay makes it impossible under the circumstances

for him to prove “actual” prejudice. He maintains that he is put in the position

of having to recreate for the court what might have happened had the

prosecution not been delayed: a task that he cannot hope to perform because

there is no other evidence or information available to use for context that would

indicate what the missing witnesses (if any) might have said.
      {¶4} In fact, the actual prejudice standard requires a defendant claiming

preindictment delay to show more than what might have happened — the word

“might” implies speculation and this court has made it clear that speculation

does not show actual prejudice.    State v. Thomas, 8th Dist. Cuyahoga No.

101202, 2015-Ohio-415, ¶ 11; State v. McFeeture, 8th Dist. Cuyahoga No.

100434, 2014-Ohio-5271, 24 N.E.3d 724, ¶ 120. In other contexts, the phrase

“actual prejudice” has been defined as an error, the absence of which would

have led to a reasonable probability that the outcome of the proceeding would

have been different. See, e.g., Strickland v. Washington, 466 U.S. 668, 688,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (ineffective assistance of counsel). In

this sense, “actual” prejudice is distinguished from “harmless” error — any

error that does not affect the outcome of the proceeding. See Crim.R. 52(A)

(“Any error, defect, irregularity, or variance which does not affect substantial

rights shall be disregarded.”).

      {¶5} While the use of the actual prejudice standard sets a high bar to

proving preindictment delay, the bar is set high because the statute of

limitations unquestionably gives the state 20 years in which to commence a

rape prosecution. See R.C. 2901.13(A)(3)(a). It is for this reason that the

concept of preindictment delay is designed to protect defendants only from

government abuses of the statute of limitations; hence the notion that

preindictment delay exists not only when the defendant can show actual
prejudice, but that the state has, in addition, purposely delayed bringing a

prosecution to obtain a tactical advantage or for some other “impermissible”

reason. The law requires a defendant to do more than offer mere speculation

as to how he was prejudiced by any delay because requiring less would

undermine the statute of limitations.

      {¶6} Against this backdrop, we have the added wrinkle that the

prosecution in this case occurred only because the state decided to test the rape

kit as the statute of limitations was about to expire. As represented by the

state, that testing occurred when “the Cleveland Police Department began an

initiative to forward a backlog of rape kits to the Ohio Attorney General’s

Bureau of Criminal Identification and Investigation (hereinafter “BCI”) for

DNA testing.” Appellee’s brief at 2. Owens, with no contradiction by the

state, asserts that the “backlog” in Cleveland amounted to upwards of 4,000

untested rape kits. See Motion to Dismiss at 2. The state gives no plausible

reason why the rape kit was not tested sooner, apart from the comment that

there was “the recent ability to test the rape kit with DNA technology * * *.”

Id. at 15. The phrase “recent ability” is meaningless, at least insofar as it

refers to the technology of DNA testing — that technology existed in 1993 at

the time of the alleged rape.    See, e.g., State v. Pierce, 64 Ohio St.3d 490,

1992-Ohio-53, 597 N.E.2d 107. In reality, it appears that the police did not

test the rape kit because the victim did not appear for several scheduled
interviews and they saw no point in further investigating a crime that the

victim presumably did not wish to prosecute.

      {¶7} Circumstances like these in other cases prompted this court’s en

banc consideration of “the standard for demonstrating actual prejudice” in rape

cases filed on the eve of the 20-year statute of limitations after rape kits were

finally submitted for testing. State v. Jones, 8th Dist. Cuyahoga No. 101258,

2015-Ohio-2853, ¶ 13. We stated in Jones that we would evaluate claims of

actual prejudice “in terms of basic concepts of due process and fundamental

justice.” Id. at ¶ 47.

      {¶8} It would be a misreading of Jones to conclude that it abandoned the

actual prejudice standard set forth in decisions by both the United States

Supreme Court and the Ohio Supreme Court.           The court’s statement that

claims of actual prejudice would be evaluated in terms of basic concepts of due

process and fundamental justice was unremarkable because due process, upon

which all claims of preindictment delay are based, is concerned with

“‘fundamental conceptions of justice which lie at the base of our civil and

political institutions.’” Lovasco, 431 U.S. at 790, 97 S.Ct. 2044, 52 L.Ed.2d

752, quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed.

791 (1935). In other words, the state’s right to bring a criminal prosecution

at any time during the statute of limitations period is balanced by fundamental

due process conceptions of liberty that prohibit the state from exercising that
right in a manner that would be so unfair as to deprive the defendant of due

process of law. We made this precise point in State v. Doksa, 113 Ohio App.3d

277, 680 N.E.2d 1043 (8th Dist.1996):

      It is well-settled, however, that such delay constitutes a violation
      of the constitutional guarantees of due process of law where the
      delay “violates those ‘fundamental conceptions of justice which lie
      at the base of our civil and political institutions,’” and “which
      define ‘the community’s sense of fair play and decency.’” United
      States v. Lovasco (1977), 431 U.S. 783, 790, 52 L.Ed.2d 752, 97
      S.Ct. 2044 (citations omitted). This determination first requires
      the defendant to demonstrate that a lengthy pre-indictment delay
      resulted in actual prejudice to him. Id., at 789. Secondly, the
      reason for the delay must be weighed against the prejudice arising
      out of it. Id., at 790. See, also, State v. Luck, supra, syllabus.

      {¶9} Our decision in Jones does not supplant the existing standard for

determining preindictment delay in favor of a new standard where we apply

our own undefined concept of what is fair.       Lovasco makes it clear that

“[j]udges are not free, in defining ‘due process,’ to impose on law enforcement

officials our ‘personal and private notions’ of fairness and to ‘disregard the

limits that bind judges in their judicial function.’”   Id., quoting Rochin v.

California, 342 U.S. 165, 170, 72 S.Ct. 205, 96 L.Ed. 183 (1965). Jones does

not purport to establish new precedent that materially changes the actual

prejudice standard used for claims of preindictment delay.

      {¶10} That Jones simply acknowledged due process concerns attendant

to preindictment delay cases was borne out by our discussion of the facts in

that case. The victim in Jones told the police that she and Jones, whom she
characterized as a friend, went to his mother’s house. She claimed that a

violent argument ensued between them, culminating with Jones taking her

into a bedroom and raping her. Id. at ¶ 4. The victim reported the crime to

the police, identified Jones by name, and submitted to rape kit testing. The

police took the victim’s clothing and obtained the 911 call reporting the alleged

rape. Jones claimed that the police interviewed him and he told them that he

and the victim engaged in consensual sexual conduct.        However, the police

claimed that they were unable to locate the victim for subsequent follow up, so

they shelved the rape kit and closed the case until such time as the victim came

forward. When the police finally tested the rape kit and received positive

results for Jones’s DNA, they waited more than a year to reopen the case and

indicted him on the last day of the 20-year limitations period.

      {¶11} Jones filed a motion to dismiss the indictment, claiming that the

20-year delay caused him actual prejudice in offering a defense that the victim

consented to sexual conduct.     As proof of actual prejudice, he claimed an

inability to offer evidence from this mother, by then deceased, who was in the

house at the time of the alleged rape and would have corroborated his assertion

that he and the victim were in a relationship and that there was no violent

fight as described by the victim.    In addition, he argued that the victim’s

clothing she wore on the night of the alleged offense had been destroyed, thus
denying him the opportunity to examine it and undermine her claim that she

and Jones engaged in a violent fight.

      {¶12} The court granted the motion to dismiss, finding both that Jones

made out a claim of actual prejudice and that the state offered no justification

for the delay. The court found that the mother’s death, the loss of physical

evidence, and the certainty of diminishing memories, constituted actual

prejudice. The court also found that the police failed to offer any satisfactory

reason for the delay, concluding that its claim that the victim gave them a

“bad” address was unbelievable and that there was no evidence that the police

made any additional effort to contact the victim. Importantly, the court noted

that the police had an address for the victim’s mother, and that it apparently

had no difficulty locating the victim once it obtained the DNA results. Finally,

the court noted that the results of the rape kit were immaterial given that

Jones all along confirmed that he and the victim engaged in sexual intercourse,

so any claim by the police that they did not have enough evidence to prosecute

without the rape kit was disingenuous.

      {¶13} Viewing these facts, this court found that the court did not abuse

its discretion by concluding that Jones established actual prejudice from the

preindictment delay. The trial court’s findings were factual in nature, and

nothing argued by the state showed that the court’s findings rose to the level

of an abuse of discretion. Likewise, we had no basis in Jones to find that the
court abused its discretion by rejecting the state’s assertions regarding the

reasons for the delay.    To the extent there was a question of “substantial

justice,” it applied to the state’s reasons justifying the length of the

preindictment delay — as the trial court noted in its order granting Jones’s

motion to dismiss, “the police did nothing in spite of the fact they had the name

of the defendant, the location of the alleged rape, a rape kit, the availability of

defendant’s clothing, the address of the victim’s mother and the name of the

witness.” In other words, the trial court in Jones found the delay inexcusable

and thus unjustified.

      {¶14} Unlike Jones, the facts of the present appeal do not warrant the

conclusion that the court abused its discretion by denying Owens’s motion to

dismiss on grounds of preindictment delay. Owens pleaded no contest to the

indictment, so the record is sparse. It appears that the victim reported the

rape to the police and gave a statement that identified her assailant as a person

named “Roy.” The police later came to believe this person was Owens. The

police obtained a DNA sample, but the victim failed to show for several

appointments the police made to meet with her and take her statement.

      {¶15} We earlier noted Owens’s acknowledgment that he cannot prove

actual prejudice from the state’s delay in seeking the indictment.              In

argument before the trial judge, Owens claimed that the length of time meant

that he had “no way to recall his whereabouts” at the time of the offense so as
to formulate an alibi defense. That argument carried no weight at all given

that DNA testing confirmed Owens as the source of semen taken from the

victim at the time she reported the rape. As for potential witnesses, Owens

not only concedes that he has none, but that if they did exist, “we simply don’t

know that the missing witnesses might have said.” Appellant’s brief at 5.

This case is very much unlike Jones, where Jones could point to others present

in the house at the time who would have corroborated his claim that he and

the victim were more than friends and that no violent fight occurred in the

house as alleged by the victim. By his own admission, Owens has nothing at

all to show prejudice in a manner consistent with established precedent. This

being the case, we cannot find that the court abused its discretion by

concluding that no actual prejudice was demonstrated. We therefore conclude

that the court did not abuse its discretion by denying the motion to dismiss the

indictment on grounds of preindictment delay.

      {¶16} Owens next argues that the court erred by sentencing him to an

indefinite term of imprisonment of 8 to 25 years in prison rather than a definite

term of prison, contrary to the provisions of R.C. 1.58(B). We sustain this

assignment of error under authority of State v. Hill, 8th Dist. Cuyahoga No.

101633, 2015-Ohio-2389, where we held that the court should have imposed a

definite prison term for an offender who committed a rape before the effective

date of H.B. 86, but who was sentenced after the effective date of H.B. 86. Id.
at ¶ 12-13. The rape offense in this case occurred in September 1993, but

Owens was not sentenced until July 2014, well after the September 30, 2011

effective date of H.B. 86. The court thus erred by failing to afford Owens the

more lenient definite sentencing provisions. See also State v. Bryan, 8th Dist.

Cuyahoga No. 101209, 2015-Ohio-1635; State v. Jackson, 8th Dist. Cuyahoga

No. 100877, 2014-Ohio-5137; State v. Girts, 8th Dist. Cuyahoga No. 101075,

2014-Ohio-5545; State v. Steele, 8th Dist. Cuyahoga Nos. 101139 and 101140,

2014-Ohio-5431. We vacate Owens’s sentence and remand with instructions

for the court to resentence Owens under the provisions of H.B. 86.

      {¶17} Judgment affirmed in part, reversed in part and remanded.

      It is ordered that appellant and appellee share the 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.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
