[Cite as State v. Crymes, 2017-Ohio-2655.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104705



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                   HAKIM D. CRYMES
                                                      DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-602689-A

        BEFORE:           McCormack, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: May 4, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Daniel T. Van
Edward R. Fadel
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario St.
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

Russell S. Bensing
1360 East 9th St., Suite 600
Cleveland, OH 44114
TIM McCORMACK, P.J.:

        {¶1} The state of Ohio appeals from a Cuyahoga County Court of Common Pleas

decision that dismissed an indictment for rape against Hakim Crymes. Hakim Crymes,

at the time of the alleged offense in 1995, was 17 years old. He was not charged until

2015, 20 years after the alleged offense.   The trial court, in assessing this 20-year-old

accusation, utilized the burden-shifting standard prescribed by the Supreme Court of

Ohio. The trial court found, due to the full 20-year delay in due diligence pursuing this

allegation, both that Hakim Crymes suffered actual prejudice to his ability to defend

himself and that the prosecution had no justifiable reason for the delay in prosecution.

After a careful review of the record and applicable law, we reach the same conclusion.

We affirm the trial court’s decision.

Rape Allegation in 1995

        {¶2} In 1995, 13-year-old C. told her mother that appellee, a friend of hers, then

17,    raped her.   The incident as alleged occurred in the morning of January 16, 1995.

C.’s mother, a member of the Cleveland Police Department, made a police report the next

day.

        {¶3} Two weeks later, on February 1, 1995, the police questioned Hakim Crymes

 about C.’s accusation.    He gave the police a detailed written statement regarding the

events leading to the accusation. C. was his girlfriend. The two of them had engaged

in sexual intercourse once, before Christmas break weeks before.   She called him at 1:00

a.m. on January 16 to make sure he was coming over to her house in the morning.        He
said yes and went back to bed. She called him again at 6:15 a.m. to ask again if he was

coming over.     He arrived at her house at about 7:10 a.m. She was watching T.V.        He

sat down and started kissing her. She kissed him back. He started to pull down her

pants. She pulled the rest of her clothing off. He took off his pants, and they engaged

in sexual intercourse.    Afterward, she told him to take a bath.    They then sat down to

watch TV, with her sitting on his lap. Around 9 a.m., appellee asked C. if they could

engage in sex again.     She said no, because her sisters were about to wake up.   Appellee

and C. went back to watch TV.           Her sisters woke up soon after.       According to

appellee’s statement, “[w]e were just laughing and joking.” He stayed at the house until

11:00 a.m.

        {¶4} C. herself was interviewed by the police two days after the incident, on

January 18, 1995.      C. stated she had known appellee since November 1994.        On that

day, he came over at around 8:00 a.m.; she let him in.        Her sisters, 10 and 11, were

asleep in their bedroom.     She was on the couch watching cartoons.     He pulled her legs

and tried to pull down her jogging pants. She tried to pull them back up, and he told her

to “just let it go.”   He then inserted his penis in her vagina.   Her sisters woke up after

that.   C. then told appellee to leave, and he did.    C. stated that she screamed for help

when he pulled her pants down but her sisters did not hear her. When asked why

appellee was at her house early in the morning that day, she answered “I don’t know.”

When asked by the police who else was home at the time, she stated her sisters were
home but did not mention her mother. That night she told a girlfriend about what

happened, and the next morning she told her mother.

       {¶5} After C. told her mother, her mother took her to the emergency room at

University Hospitals.   There, according to the emergency room nurse’s notes, C. told the

nurse that appellee was “someone she has had a crush on.”        According to what C. told

the nurse, appellee did not leave immediately after her sisters woke up, but left “later that

day.” She told a girlfriend about the sexual conduct, and the girlfriend told C.’s cousin

about it. The cousin brought appellee to C.’s house the next morning (January 17) to

confront him. In front of C.’s mother, both appellee and C. denied anything improper

occurred.    C.’s mother, however, confronted C. again and wanted to take her to a doctor

for   testing.   C. then told her mother “what had happened.”      It was unclear from the

nurse’s notes whether C. described the sexual conduct as forced or otherwise at that time.

       {¶6} A police report dated February 2, 1995, contained a notation: “all booking

cards, reports, and facts sheets to be sent to juvenile court.” That notation was the last

of any police activity reflected in the record.   It then took 20 years for the case to rise

from the archives and reach the juvenile court.   In 2014, the rape kit collected from C. at

the hospital in 1995 was sent to BCI for testing — even though the testing would have

yielded no new evidence as the police knew appellee’s identity from the very beginning

and appellee already acknowledged engaging in sexual intercourse with C. when

interviewed by the police.      Consistent with appellee’s statement, the rape kit was

matched to appellee.
Prosecution Twenty Years Later

       {¶7} Although the DNA match added no new evidence to this stale case, it

somehow breathed new life into it.       On January 14, 2015, the day before the 20-year

statute of limitations would have expired in this rape case, the state filed charges in the

juvenile court against appellee, now not a 17-year-old teenager but a 37-year-old man.

The juvenile court held that it did not have jurisdiction and dismissed this matter. The

state appealed the juvenile court’s decision to this court.

       {¶8} On that appeal, this court cited R.C. 2151.23(I), which states that the

juvenile court has jurisdiction when a juvenile offender is “taken into custody or

apprehended” for a criminal matter before the age of 21.      This court concluded that it

did not have an adequate record for       determining whether or not appellee was “taken

into custody or apprehended” in 1995 within the meaning of the statute, when he was

interviewed by the police.    This court reversed and remanded the case to the juvenile

court for an evidentiary hearing.        In re H.C., 8th Dist. Cuyahoga No. 102601,

2015-Ohio-3676.       On remand, the juvenile court conducted a hearing and concluded

appellee had not been “taken into custody or apprehended” in 1995 when he was

interviewed by the police. Consequently, the juvenile court decided it did not have

jurisdiction and again dismissed the case. Subsequently, on January 15, 2016, the grand

jury indicted appellee with rape and kidnapping, 21 years after appellee admitted to

sexual conduct with C. but claimed the sexual conduct was consensual.
         {¶9} In response to the 2016 indictment, defense counsel sought to obtain the 1995

phone records to confirm the two phone calls appellee told the police C. made to him in

the early morning of January 16, 1995.       Counsel learned from the carrier AT&T that no

records can be recovered from 1995 for appellee’s phone number.

         {¶10} Appellee filed a motion to dismiss the indictment asserting pre-indictment

delay.    The trial court conducted a hearing on the motion.         Appellee submitted an

affidavit from an AT&T compliance security analyst, which stated                 information

regarding appellee’s telephone account was unavailable.

         {¶11} The trial court determined appellee suffered actual prejudice from the

preindictment delay and there was no justifiable reason for the delay in prosecution.    The

trial court noted that appellee told the police in 1995 about the two early morning phone

calls he received from C. on the day of the incident asking if he was coming over to her

house, yet C. claimed she was surprised that he showed up at her house. The trial court

reasoned that, had the case been tried in 1995 and C. denied making the phone calls,

appellee would have had the benefit of the phone records to cross-examine her.       Because

the phone records were no longer available due to the lapse of more than 20 years,

appellee’s ability to adequately cross-examine his accuser was lost forever.        The trial

court found the inability      resulting from the lost evidence to be significant and

constituted actual prejudice in this case.   The trial court also noted the accused’s identity

had been known to the police from the beginning, and the accuser, whose mother was a

member of the police department, would also have been readily available for further
investigation.   The trial court concluded there was no justification “whatsoever” for the

20-year delay in the prosecution of this matter.   The court granted appellee’s motion and

dismissed the case.

       {¶12} The state now appeals, raising one assignment of error.    It states: “The trial

court erred in dismissing the indictment on grounds of preindictment delay.” We review

a trial court’s decision on a motion to dismiss for preindictment delay de novo as to the

legal issues, but afford great deference to the court’s findings of fact. State v. Dixon,

2015-Ohio-3144, 40 N.E.3d 601, ¶ 19 (8th Dist.).

Preindictment Delay

       {¶13} The Sixth Amendment to the United States Constitution on its face provides

no protection to those who have not been charged; however, “[w]hen unjustifiable

preindictment delay causes actual prejudice to a defendant’s right to a fair trial, despite

the state’s initiation of prosecution within the statutorily defined limitations period, the

Due Process Clause affords the defendant additional protection.” State v. Jones, 148

Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 11 (“Jones II”), citing United States

v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

       {¶14} In Jones II,    the Supreme Court of Ohio reversed this court’s en banc

decision in State v. Jones, 2015-Ohio-2853, 35 N.E.3d 606 (8th Dist.) (“Jones I”).        In

the en banc decision, this court applied a “due process” standard to analyze claims of

unconstitutional preindictment delay instead of a long-established burden-shifting

two-part test. The Supreme Court of Ohio explained that this court’s decision blurred
the distinctions between the existence of actual prejudice and the lack of a justifiable

reason for the preindictment delay.          The Supreme Court of Ohio reaffirmed the

burden-shifting two-part test: a defendant must first present evidence of actual prejudice;

the burden then shifts to the state to show that it has 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),

and State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127.

       {¶15} Regarding the first part of the test, the Supreme Court of Ohio cautioned

that the determination of actual prejudice involves a delicate, case-by-case consideration

of the particular circumstances. Jones II at ¶         20.     The courts are to “consider the

evidence as it exists when the indictment is filed and the prejudice the defendant will

suffer at trial due to the delay.”   (Citation omitted.) Id.

       {¶16} The Supreme Court of Ohio stressed that the mere possibility that

“memories will fade, witnesses will become inaccessible, or evidence will be lost is not

sufficient to establish actual prejudice.”         (Citation omitted.)     Jones II at ¶ 21.

Nonetheless, the Supreme Court of Ohio rejected the state’s argument that “any claim of

actual prejudice based on the death of a potential witness is too speculative to succeed

unless the defendant can establish precisely what that witness would testify to and that the

testimony would be directly exculpatory.”          Id. at ¶    27.   Rather, the courts are to

“scrutinize the claim of prejudice vis-à-vis the particular evidence that was lost or

unavailable as a result of the delay and, in particular, considered the relevance of the lost
evidence and its purported effect on the defense.” Id. at ¶ 23, citing State v. Walls, 96

Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52.

      {¶17} For a proper analysis of actual prejudice, the Supreme Court of Ohio sought

guidance from State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984). In that case,

defendant Luck was charged with murder 15 years after the victim’s death.             When

arrested 15 years later, Luck told the police that one of the deceased witnesses was with

her (Luck) at the time of the murder and he was “the one person who could have helped

her in this matter but he was dead.” Luck at 157.          Although there was no evidence

establishing what the deceased witness would have actually testified to at trial, the

Supreme Court of Ohio found     Luck had been actually prejudiced by her inability to seek

verification of her story from the deceased witness.       Id. at 158.   See also Jones at ¶

28.

      {¶18} Citing Luck, the Supreme Court of Ohio held in Jones that “[a]ctual

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 II at ¶     28.

      {¶19} Turning now to the instant case, we first note that, unlike other crimes of

violence, rape cases where consent is the only issue often turns on a credibility contest

between the accused and the accuser.     In this case, although C.’s sisters     were in the

house that morning, by both appellee’s and C.’s accounts, they were not aware of

anything that transpired between C. and appellee.   Thus, this case involves a classic “he
said she said” scenario; the newly tested DNA evidence shed no new light on the ultimate

question raised by this prosecution.      The DNA evidence shows that sexual conduct

occurred between appellee and C., which appellee acknowledged to the police from the

outset.

          {¶20} This is not a case where a defendant, after DNA testing matches him to the

crime, makes a self-serving claim that some evidence existed to support his account of the

event but the evidence was lost due to the passage of time.      Rather, appellee told the

police back in 1995, two weeks after the alleged incident, that C. called him twice after

midnight, hours before the sexual conduct, to make sure he was coming to her house.

Appellee gave the police the specific times of the phone calls, one at 1:00 a.m. and one at

6:10 a.m., easily able to be verified at the time by the police through an examination of

the phone records in 1995. While the phone records would not show the content of the

phone conversations, the existence of the phone calls is crucial for the defense because it

goes to C.’s credibility — when asked about appellee’s presence in her house in the early

morning, C. told the police she did not know why he was there.      If she were to deny at

trial that she had made these phone calls, the defense could have impeached her by the

phone records.      On the other hand, if she were to admit making the calls, the defense

could attempt to impeach her by disproving her prior statement that she did not know why

appellee was at her house early in the morning.     Moreover, the existence of two phone

calls from C. to appellee hours before the sexual conduct, although not direct proof of

consent, would help appellee verify his account of the event, thereby bolstering the
defense. Luck at 157-158; Jones at ¶ 28.          In particular, due to the 20-year-long delay in

prosecuting this matter, what was once eminently verifiable is no longer verifiable today.

Appellee’s ability to have the police confirm the existence of the phone calls — a most

critical piece of evidence in this he-said-she-said case that could corroborate what he said

— is, after these two decades, irreparably lost.

       {¶21}       Applying Jones II and balancing the prejudicial factors against the

evidence at the time of the indictment, we determine de novo, as the trial court did, that

appellee would suffer actual prejudice were he required to stand trial today. Because of

the delayed prosecution, appellee no longer had the ability to cross-examine his accuser,

impeach her credibility, or to seek verification of his story. The evidence cited by

appellee of the specific phone calls from the alleged victim hours before the incident,

which could well contradict the victim’s account of the event, would certainly minimize

the impact of the accuser’s testimony and bolster the defense.                  Jones II at ¶      28.

Appellee has demonstrated a “viable, tangible connection” between the lost evidence to

the defense of his case. State v. Richardson, 8th Dist. Cuyahoga No. 103925,

2016-Ohio-5843, ¶ 13.        The prejudice resulting from the lost evidence in this case was

not hypothetical or speculative, but actual, as the trial court found.1


         In the State v. Jones, 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176 (“Jones III”), this
       1


court, upon remand from the Supreme Court of Ohio, concluded Jones failed to show actual prejudice.
  This court reasoned that although Jones claimed his mother, who was present in the house when the
incident occurred, was no longer an available witness to testify on his behalf, his brother was also in
the house and it is conceivable that his mother’s testimony would have been cumulative. For that
reason, this court concluded Jones had not shown the loss of his mother as a potential witness would
minimize or eliminate the impact of the state’s witness and bolster his defense. In contrast, the lost
       {¶22} Under the two-part test, the burden then shifted to the state to show that the

delay in prosecution was justified. The trial court found no justification “whatsoever”

for the delay in the indictment.       Indeed, the record reflects the police knew the identity

and whereabouts of both appellee and C., whose mother was an employee of the

Cleveland Police Department.          Both appellee and C. provided a written account of the

alleged incident to the police.       The file contained a notation that the reports and facts

sheets were to be sent to the juvenile court. Yet, nothing was done by the police or

prosecution for another 20 years, and by now, 20 years later, appellee was a 37-year-old,

and no longer had available to him the juvenile system for the adjudication of the rape

allegation.   The state did not provide any reason or justification for the delay, and the

record reflects none.      Under the two-part test reaffirmed by Jones II, the trial court

properly dismissed the case on the ground of unconstitutional preindictment delay.2




evidence in this case is not replaceable. Although C.’s sisters were in the house at the time of the
sexual conduct, they were, by both C.’s and appellee’s accounts, unaware of it. As to the other
persons mentioned in C.’s hospital interview (her girlfriend and cousin), they were not present at the
time of the alleged offense; further, C.’s girlfriend and cousin were potential witnesses for the state,
not for the defense. Therefore, these witnesses’ potential availability does not reduce the prejudice
appellee would suffer from the lost phone records. As actual prejudice involves a case-by-case
consideration of the particular circumstances, Jones III is distinguishable.

          In Richardson, supra, this court remanded the preindictment case because the trial court
       2


applied the “due process” standard adopted in this court’s Jones I decision and improperly focused on
the length of time of the delay, rather than applying the burden-shifting two-part test. In the instant
case, although the hearing over appellee’s motion to dismiss for preindictment delay was held on June
6, 2016, before the release of the Supreme Court of Ohio’s Jones decision, a review of the hearing
transcript reflects that the trial court applied the correct burden-shifting two part-test in analyzing
whether this case should be dismissed for preindictment delay.
       {¶23} We emphasize that this is not a case where a rape defendant escapes justice

until the DNA evidence matches the defendant to the crime.       Unlike the defendant in the

Jones case, appellee acknowledged sexual conduct with his accuser from the outset.

There was never any doubt regarding the source of the semen.        This is a he-said-she-said

case involving two minors who knew each other, and the police dropped its investigation

purposely after interviewing the two minors.       Twenty-two years later, it has become

impossible for appellee to prove his defense of consent.          The Due Process Clause

provides a safeguard against prosecuting such a defendant whose right to a fair trial has

been   actually prejudiced by the unjustifiable indictment delay.

       {¶24} Appellee also argues that he was prejudiced by the unavailability of the

juvenile system for the offense that he allegedly committed when he was a 17-year-old.

He argues that, were the case prosecuted in 1995, the law at the time required an

amenability hearing before a bindover to the adult court, and, had he been found

delinquent, he would have faced at most detention in a juvenile facility until he reached

the age of 21. The trial court did not rule on this alternative ground for dismissal, and the

state does not address the issue on appeal.    We need not reach the issue as it is mooted

by our disposition of this matter pursuant to Jones II.

       {¶25} 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.



________________________________________
TIM McCORMACK, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
