[Cite as State v. McKinley, 2020-Ohio-3664.]


                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellant,                :
                                                              No. 108715
                 v.                                  :

CHARLES MCKINLEY,                                    :

                 Defendant-Appellee.                 :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: July 9, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-633639-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jennifer M. Meyer and Mary Court
                 Weston, Assistant Prosecuting Attorneys, for appellant.

                 Fernando Mack and Edward F. Borkowski, for appellee.


MARY J. BOYLE, P.J.:

                   Plaintiff-appellant, state of Ohio, appeals from a judgment granting

defendant-appellee, Charles McKinley’s, motion to dismiss for preindictment delay.

The state raises three assignments of error for our review:
      1. The trial court erred when it permitted appellee to raise alleged
      prejudice that he did not outline in his motion, thus prejudicing the
      state and the victim.

      2. The trial court erred in finding substantial, actual prejudice.

      3. The trial court erred in finding negligence or error in judgment by
      the investigating officers.

              Finding merit to the state’s second assignment of error, we reverse

and remand.

I. Procedural History and Factual Background

              On October 24, 2018, McKinley was indicted on Count 1, rape in

violation of R.C. 2907.02(A)(2), Counts 2 and 3, attempted rape in violation of R.C.

2923.02 and 2907.02(A)(2), and Count 4, kidnapping in violation of R.C.

2905.01(A)(4). The indictment alleged that the rape took place on January 29, 1999.

              McKinley filed a motion to dismiss for preindictment delay in

February 2019. The trial court held a hearing on McKinley’s motion on March 25,

2019, where the following evidence was presented.

              Special Agent Lindsey Mussell (“Investigator Mussell”) was assigned

to the case in 2017. She explained that on January 29, 1999, the victim, then 19 years

old, went to a house located at 3450 E. 99th Street, Cleveland, Ohio. The victim

reported that she went there with her coworker, James Tatum. The victim told

police that Tatum eventually left the house but she remained. The victim told police

that she was raped by four unknown males in an upstairs bedroom around 1:00 a.m.

on January 29, 1999. After she left the house, the victim went to a friend’s home and
then, at 6:30 p.m. that same day, she went to the hospital where a rape kit was

collected. Detectives from the Cleveland Police Department’s Sex Crimes Unit were

assigned to the case and made “numerous attempts” to contact the victim, including

leaving a voicemail message for her on February 17 and 24, 1999, and leaving a card

at her house on March 4, 1999. The victim never returned their calls, so the case

went cold.

               On January 13, 2012, Cleveland police submitted the victim’s rape kit

to the Ohio Attorney General’s Bureau of Criminal Investigation (“BCI”) for DNA

testing. The male DNA found in the samples taken from the victim was entered into

the Ohio Combined DNA Index System (“CODIS”). On August 16, 2012, a CODIS

hit linked McKinley to the male DNA found in the victim’s rape kit. When Cleveland

police received this information, they attempted to locate the victim. Investigator

Mussell stated that detectives sent a letter to the victim, the victim’s mother, and the

victim’s friend, who was a possible witness in the case. Investigator Mussell said the

detectives were not able to locate the victim at that time.

               In 2017, Cleveland police resubmitted the case to the BCI, which is

when Investigator Mussell was assigned to the case. She said that this case became

high priority due to the statute of limitations about to expire. Investigator Mussell

found the victim using online databases. The victim was living out of state at that

time. The victim told Investigator Mussell that she recalled that one of the rapists

was referred to as “Trip” by the other males. The victim viewed a photo array and

identified McKinley as one of the males who raped her.
              Investigator Mussell also interviewed the victim’s friend, Nyja Brown,

who remembered that the victim came to Brown’s house after the rape. Brown

remembered the victim was crying said that she had just been raped. Investigator

Mussell located a James Tatum, but he was not the same Tatum who took the victim

to the house on E. 99th Street in 1999.

              Investigator Mussell interviewed McKinley in August 2019. She

showed McKinley a photo of the victim that was taken nine days before the alleged

rape. The victim was wearing a fur coat in the photo. Investigator Mussell said that

McKinley denied knowing the victim or that he had ever had sex with her. McKinley

signed and dated the photo, indicating “no” that he did not recognize the victim.

McKinley also denied knowing anyone named James Tatum. Investigator Mussell

also stated that she showed McKinley a photo of the house on E. 99th Street, but he

denied that he had ever been there. Investigator Mussell collected McKinley’s DNA

and confirmed what the “CODIS hit” had already established.

               McKinley testified that after he was charged in this case, he met and

looked over the discovery with his defense counsel. McKinley stated that is when he

began to recall an “interaction” with a woman who wore a fur coat. McKinley stated

that the information that Investigator Mussell had shown him was “totally different

from what [he] found out in discovery.”

              After seeing a photo of a woman in a fur coat in discovery, McKinley

stated that he remembered meeting the woman in 1999 at Vince’s Café. He did not

recall her name, but he believed it was the same woman who was now accusing him
of rape. He believed it was January 1999 because it was cold, and that is why the

woman would have been wearing a fur coat. He said that they were both drinking

“multiple drinks and having a nice conversation, [and] enjoying [themselves].”

              McKinley stated that the woman left the bar with him around 1:00 or

2:00 a.m. He testified that he took her to his cousin’s house, which was the

“Rankins’ house.” He said that his aunt, Dorothy Rankins, “pretty much raised

[him] from the age 13, 14.” The Rankins’ house was located around “89th and

Catharine and Union.” He decided to go there because his place was too far away,

and he had been drinking. As far as he could remember, he had to call someone to

let him into the Rankins’ house because he did not have a key. He could not recall if

he and the woman had a drink in the house, but he remembered that they went

upstairs to the “boys’ bedroom” and had consensual sex.

              McKinley testified that he could not recall who was in the Rankins’

house at that time. He said that other people must have been there, however,

because otherwise, he would not have been able to get inside without a key. He said

that in addition to his aunt, Michael, Portia, and Glenda Rankins lived there as well

as James Wells and Mattie Brown.         McKinley stated that Mattie Brown was

bedridden from a stroke, so she would have been home, and her bedroom was below

where he had sex with the woman in the fur coat. McKinley testified that he fell

asleep, and when he woke up, the woman was gone.

              McKinley stated that if the case would have been brought against him

in 1999, police could have interviewed the security guard and “bar maid” from
Vince’s Café. He said the “fur coat” would have probably “stood out” with the bar

maid because there were not a lot of people wearing fur coats that night. He could

have also obtained surveillance footage from the bar, which would have shown the

woman in the fur coat “willingly” left the bar with him. He said that police could

have also interviewed his Aunt Dorothy and Mattie Brown. McKinley stated that his

aunt now lived in Las Vegas. He said that he spoke with his aunt; she did not recall

anything about that night. Mattie Brown passed away “five or ten years” after that

night, but he said that she would have been able to say whether she heard “any

disturbance.”

                On cross-examination, McKinley said that he told Investigator

Mussell that he had never had so much alcohol that he passed out and could not

remember what happened. He agreed that Investigator Mussell did not “rush” him

when she showed him the woman’s photo. He said that the woman who Investigator

Mussell showed him was not wearing a fur coat. When the state established that in

the photo Investigator Mussell showed him, the woman was wearing a fur coat,

McKinley stated that he did not notice because he was focusing on her face.

                The state then showed McKinley the photo that Investigator Mussell

showed him of the victim in this case. McKinley agreed that the victim was wearing

a fur coat in the photo. McKinley admitted that his signature was on the back of the

photo and that he signed it on July 19, 2018. He further admitted that he told

Investigator Mussell that he did not recognize the woman. He also agreed that he

wrote “no” on the back of the photo, which meant that he did not recognize the
woman. The state then asked, “And do you recognize the woman in that photo

today?” McKinley responded:

      Still to this day I don’t remember who that woman is, but since this
      whole situation is revolving around a fur coat after I read it in discovery,
      I remember having sex with a woman in a fur coat that I remember this.
      I remember this incident. I don’t remember the female, herself, but I
      remember having sex with a female in a fur coat. If the investigator
      would have asked me, “Do you remember having sex with a woman in
      a fur coat[,]” that would have sparked something. The fur coat wasn’t
      brought up until the motion in discovery. When she showed me the
      picture, I wasn’t focused on the fur coat. I was focusing on the picture.

               The state then asked McKinley again to confirm that Investigator

Mussell did in fact show him a photo of a woman wearing a fur coat. McKinley

replied that she had but stated that Investigator Mussell “didn’t mention” the fur

coat to him. McKinley further admitted that in the hour time span that he spoke to

Investigator Mussell, he maintained the whole time that he had never seen the

woman before that day. McKinley insisted that when he “read the fur coat was

involved” as he viewed he discovery in January 2019, that is when he remembered

that he had sex with a woman in a fur coat.

               The state asked McKinley if the woman he had sex with was the

woman in the photo. McKinley responded, “From whatever that was brought to me,

it was her.” When the state asked McKinley to explain further, McKinley stated,

“That was the only female I took from Vince Café to the Rankins’ house. She had a

fur coat on and this fur coat has got everybody -- got my brain thinking and

remembering and it’s linked to her. I’ve never took another female to the Rankins

with a fur coat.”
               McKinley further stated on cross-examination that Michael Rankins

was currently in jail at the Justice Center and that Portia and Glen Rankins and

James Wells still lived in Cleveland. McKinley said that he had tried to get ahold of

these people but had not been able to reach them.

               When asked why he had not told Investigator Mussell “any of the

things” that McKinley testified to, he replied, “Because I was not asked those

questions.” The following exchange then took place:

      [The state]: You told Investigator Mussell you don’t remember any of this.

      [McKinley]: I told her I don’t remember this incident.

      [The state]: And you don’t remember that girl?

      [McKinley]: Yeah, I don’t.

               On redirect-examination, defense counsel again showed McKinley

the same photo of the woman in the fur coat that he had dated and signed, stating

“no” that he did not know the woman. Defense counsel asked McKinley if the

woman in the photo appeared to be 19 years old. McKinley replied that the woman

in the photo appeared older than 19 years old. McKinley stated that the woman

looked like she was in her late twenties or early thirties.

               Investigator Mussell, however, testified that the photo of the woman

in the fur coat that she showed McKinley was taken just nine days before the alleged

rape took place. Thus, the victim was 19 years old in the photo that Investigator

Mussell showed McKinley.
               After considering the evidence presented at the hearing, the trial

court granted McKinley’s motion to dismiss for preindictment delay. It found that

the “missing evidence, specifically the loss of video surveillance footage, as well as

the unavailability of the witnesses such as James Tatum, would create actual

prejudice were the defendant required to stand trial today.” The trial court further

found that the state acted negligently in both 1999 and 2012 in ceasing the

investigation when they were unable to locate the victim. The trial court stated that

the rape kit existed in 1999 and could have been tested for DNA at that point. The

trial court also found that the state was negligent because it failed to prosecute the

case in 2012 after it received the CODIS link.

               It is from this judgment that the state appeals. We will address the

state’s assignments of error out of order for ease of discussion.

II. Preindictment Delay Burden-Shifting Test

               An unjustifiable delay between the commission of an offense and a

defendant’s indictment for that offense, which results in actual prejudice to the

defendant, is a violation of the right to due process of law under Section 16, Article

I, of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United

States Constitution. State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984),

paragraph two of the syllabus.

               The statute of limitations governing a crime provides the “primary

guarantee against bringing overly stale criminal charges.” State v. Copeland, 8th

Dist. Cuyahoga No. 89455, 2008-Ohio-234, ¶ 10, citing United States v. Lovasco,
431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The statute of limitations for

rape is 25 years. R.C. 2901.13(A)(4).1 Here, it is undisputed that McKinley was

indicted within the statute of limitations for rape.

               Nonetheless, the delay between the commission of an offense and an

indictment can, under certain circumstances, constitute a violation of due process

of law guaranteed by the federal and state constitutions — even when the defendant

is indicted within the statute of limitations. Lovasco at 789; United States v.

Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). For instance, a

delay in commencing prosecution is not justified when the state uses the delay to

gain a tactical advantage or through negligence or error ceases its investigation, and

then later, without new evidence, decides to prosecute. Marion at 324; Luck at 158.

               Courts apply a two-part test to determine whether preindictment

delay constitutes a due process violation. Defendants have the initial burden to

show that they were substantially and actually prejudiced due to the delay. State v.

Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). But “proof of actual

prejudice, alone, will not automatically validate a due process claim.” Luck, 15 Ohio

St.3d at 154, 472 N.E.2d 1097, citing Marion. Once a defendant establishes “actual

prejudice,” the burden then shifts to the state to produce evidence of a justifiable


       1 Prior to July 16, 2015, the statute of limitations for rape was 20 years. On July
16, 2015, however, the statute of limitations for rape prosecution increased from 20 years
to 25 years. R.C. 2901.13(A)(4); 2015 H.B. No. 6. This increase is retroactive provided that
the prosecution would not have been barred under the prior 20-year statute of limitations
on July 15, 2015. R.C. 2901.13(L). In this case, the state would not have been barred under
the prior statute of limitations on July 15, 2015, because the rape took place on January
29, 1999. Thus, the 25-year statute of limitation applies here.
reason for the delay. Id. Thereafter, the due process inquiry involves a balancing

test by the court, weighing the reasons for the delay against the prejudice to the

defendant in light of the length of the delay. State v. Walls, 96 Ohio St.3d 437, 775

N.E.2d 829, ¶ 51.

               In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d

688, the Ohio Supreme Court explained:

       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, 404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. 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.
       This 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, at ¶ 100 (noting the difficulty for defendants
       claiming unconstitutional preindictment delay because “proof of
       prejudice is always speculative”).

Id. at ¶ 52.

               “[T]he possibility that memories will fade, witnesses will become

inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.”

Adams at ¶ 105, citing Marion. “Those are ‘the real possibilit[ies] of prejudice

inherent in any extended delay,’ and statutes of limitations sufficiently protect

against them.” Jones at ¶ 21, quoting Marion. “That does not mean, however, that

demonstrably faded memories and actually unavailable witnesses or lost evidence

cannot satisfy the actual-prejudice requirement.” Id. 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. Id. at ¶ 28, citing Luck. However, the 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).

               We review a trial court’s decision regarding legal issues in a motion

to dismiss for preindictment delay pursuant to a de novo standard of review. State

v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-Ohio-5519, ¶ 12, citing

State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814 (12th Dist.).

“De novo review requires an independent review of the trial court’s decision without

any deference to the trial court’s determination.” State v. Clay, 2d Dist. Miami No.

2015-CA-17, 2016-Ohio-424, ¶ 5.

               This court has held, however, that although we apply a de novo

standard of review to the trial court’s decision regarding the legal issues in a motion

to dismiss based on preindictment delay, we afford great deference to the findings

of fact made by the trial judge. State v. Walker, 8th Dist. Cuyahoga No. 106414,

2018-Ohio-3669, ¶ 15, citing State v. Hunter, 8th Dist. Cuyahoga No. 104789, 2017-

Ohio-4180, ¶ 16. We must therefore accept the trial court’s findings of fact if they

are supported by competent, credible evidence. State v. Burnside, 100 Ohio St.3d

152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19,

437 N.E.2d 583 (1982).
      A. Actual Prejudice

               We will address the state’s second assignment of error first because it

is dispositive. In its second assigned error, the state argues that the trial court erred

when it found that McKinley suffered actual prejudice by the preindictment delay.

We agree.

               Although McKinley states that his alleged evidence was lost and

witnesses are no longer available, “the possibility that memories will fade, witnesses

will become inaccessible, or evidence will be lost is not sufficient to establish actual

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

¶ 105, citing Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.

               McKinley argued to the trial court that if he had been prosecuted in

1999, he could have subpoenaed witnesses, including the security guard at the bar

where claims he met a woman in a fur coat, the barmaid at the bar who supposedly

saw them together, James Tatum who the victim claimed gave her a ride to the home

where she said she was raped, his aunt who owned the home where he claims he

took the woman in the fur coat to have sex, a bedridden woman who lived with his

aunt, and several of his cousins who lived with his aunt. He also contends that he

could have obtained video surveillance footage from the bar, which would have

purportedly shown that the woman in the fur coat willingly left the bar with him.

               All of McKinley’s alleged missing or lost evidence, however, means

nothing to his case if the woman in the fur coat who he claims to have had sex with

in 1999 was not the same person who told police in 1999 that four men raped her.
The trial court appears to have accepted McKinley’s story as true despite the fact

that McKinley repeatedly testified that he could not be sure that the woman in the

fur coat who he supposedly met in 1999 was the same woman who told police in

1999 that four men raped her at a house on E. 99th Street. A trial court’s factual

findings, however, must be supported by competent, credible evidence. See State v.

Wood, 9th Dist. Wayne No. 18AP0011, 2019-Ohio-3985, ¶ 9 (reversed trial court’s

decision after finding that “several of the trial court’s findings of fact [were] not

supported by competent, credible evidence.”).

              McKinley testified on direct examination that once he viewed the

discovery file and “read about the fur coat,” that is when he remembered “an

interaction” with a woman who had been wearing a fur coat. He testified to this even

though he admitted on cross-examination that Investigator Mussell showed him the

same photo of the victim that he later saw in discovery.

              McKinley tried to say that he did not recognize the victim when

Investigator Mussell showed him the photo of her because in the photo that

Investigator Mussell showed him, the victim appeared to be much older. McKinley

was attempting to establish that Investigator Mussell did not show him a photo of

the victim around the time of the alleged rape. But the state established that the

photo of the victim that Investigator Mussell showed McKinley was taken just nine

days before the victim reported the rape.

              Further and most significantly, when the state asked McKinley if he

recognized the woman “in that photo today,” McKinley replied, “Still to this day I
don’t remember who that woman is.” He further admitted on cross-examination

that although he remembered having sex with a woman in a fur coat, he did not

“remember the female herself.” He actually stated that if the investigator would

have asked him if he remembered having sex with a woman in a fur coat, it “would

have sparked something.” One of the state’s final questions to McKinley was to ask

him, “And you don’t remember that girl?” In response to the state’s question,

McKinley admitted, “Yeah, I don’t.” The fact that McKinley supposedly met a

woman in a bar who happened to be wearing a “faux fur coat” and took her his aunt’s

house to have sex is not enough to tie that woman to the victim in this case.

               After review, we find that McKinley simply did not provide

competent, credible evidence to establish that the woman he claims to have met in

the fur coat is the victim in this case. Therefore, the trial court erred when it accepted

McKinley’s version of the events as true for purposes of establishing actual prejudice

and granting McKinley’s motion to dismiss for preindictment delay.

               Even if we had found that McKinley sufficiently established that the

woman he claims to have met at Vince’s Café was the victim in this case (which he

did not), McKinley’s purported unavailable evidence would not have amounted to

actual prejudice. First, McKinley did not establish that most of his missing or lost

evidence was actually unavailable. McKinley admitted that besides talking to his

aunt on the phone and Mattie Brown being deceased, he did not attempt to locate

any of the people he claims to have been at his aunt’s home that evening. As

previously stated, McKinley bears the initial burden of establishing actual prejudice.
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, at ¶ 13. A defendant’s

bald assertion that witnesses are unavailable without any explanation of efforts

made to locate them is not sufficient. State v. Walker, 8th Dist. Cuyahoga No.

106414, 2018-Ohio-3669, ¶ 20. Indeed, McKinley stated that several of the people

who he claimed might have been in his aunt’s house that night still live in Cleveland,

and he did not attempt to locate or talk to them. But also, besides Mattie Brown and

someone who had to have let him in the house, McKinley testified that he did not

know who was at his aunt’s home that night. Therefore, McKinley’s purported

missing evidence is entirely speculative.

               With respect to Mattie Brown, McKinley claimed that she was

bedridden, so she would have been home, and that her bedroom was below the room

where he supposedly had sex with a woman in a fur coat. He therefore argues that

if she was alive, she would have heard if anything inappropriate had occurred

between him and the woman. Evidence that a witness is deceased is obviously

sufficient to establish the witness’s unavailability. The death of a witness, by itself,

however, is not enough to establish actual prejudice. Jones at ¶ 26. In this case,

McKinley is speculating as to what Mattie Brown could offer his defense. He could

not say for certain that Mattie Brown was actually in her bedroom that night because

he did not actually see her. Although the lack of specificity of a missing witness’s

testimony does not render the claim of prejudice fatally speculative, it does in this

case because McKinley fails to show that Mattie Brown’s testimony would minimize
or eliminate the impact of the state’s evidence or bolster McKinley’s defense. Jones

at ¶ 27.

               The same is true for the supposed barmaid and security guard at

Vince’s Café. McKinley’s claim that these witnesses could have testified that he and

a woman in a fur coat were drinking together at the bar and left the bar together. He

also maintains that he could have obtained security camera footage from the bar if

he had been prosecuted in 1999. McKinley’s argument, however, ignores the fact

that consent, even if initially given, can be revoked. Thus, these witnesses could not

have testified in any credible manner as to whether the victim consented to sex later

at McKinley’s aunt’s house.

               McKinley further argues that this case is similar to “three recent cases

decided by this court, each of which affirmed a dismissal based on preindictment

delay.” The three cases cited by McKinley are State v. Kafantaris, 8th Dist.

Cuyahoga No. 105937, 2018-Ohio-1397, State v. Willingham, 8th Dist. Cuyahoga

Nos. 106706 and 107033, 2019-Ohio-1892, and State v. Bourn, 8th Dist. Cuyahoga

No. 107525, 2019-Ohio-2327.2 Unlike the present case, however, the victims in


       2The state appealed our decisions in Willingham and Bourn to the Ohio Supreme
Court. The Supreme Court accepted Willingham for discretionary review and accepted
and held Bourn for its decision in Willingham. See State v. Willingham, Slip Opinion No.
2019-Ohio-3263, 129 N.E.3d 471; State v. Bourn, 157 Ohio St.3d 1510, 2019-Ohio-5193,
136 N.E.3d 499. The Supreme Court heard oral arguments in Willingham on May 12,
2020. The state’s relevant proposition of law accepted by the Supreme Court in
Willingham is:
      In a sexual assault case, a defendant does not establish actual prejudice, for
      purposes of a claim of preindictment delay analysis, through the loss of any
      evidence that might bolster a consent defense. At a minimum, there must
      be a reliable indication that such evidence existed and could have been
Kafantaris and Bourn as well as one of the victims in Willingham all knew the

defendant at the time they made the rape allegations. Thus, except for the first

victim in Willingham, these were not cold cases until a CODIS hit linked the

defendants to the crimes. The defendants were known to police. And with respect

to the first victim in Willingham who did not know who raped her, the defendant

specifically remembered paying the victim for sex, unlike McKinley, who does not

remember the victim in this case at all. See Kafantaris (victim and defendant met

in a bar and exchanged phone numbers; the victim later agreed to allow defendant

to come to her home at 4:30 a.m.; the victim stated that defendant raped her when

he came to her house); Willingham (victim 1: victim worked as a dancer at a

nightclub; she was raped as she walked to her car after work; defendant stated that

he was a regular at the nightclub and that he remembered paying the victim to have

sex; victim 2: victim and defendant met on the internet, victim met with defendant

a few times in public, and then invited him over to her house; victim then claimed

that defendant forced her to have sex); Bourn (victim saw the defendant at a bar;

victim’s friend reported that she saw defendant having sex with the victim while she

was unresponsive; defendant came back to the victim’s home at a later time and got

into a fight with the victim’s boyfriend). Thus, these cases are distinguishable from

the present case and do not support McKinley’s argument.




      obtained, is non-speculative, and that such evidence was material and
      substantially probative on the issue of consent.
               Accordingly, McKinley’s purported missing and lost evidence does

not establish any prejudice, let alone substantial and actual prejudice. We therefore

find that the trial court erred when it found that McKinley had established actual

prejudice for purposes of dismissing his case based upon preindictment delay.

               The state’s second assignment of error is sustained.

      B. Unjustifiable Delay

               Because McKinley failed to carry his burden of establishing actual

prejudice, the state did not have to establish that the delay in prosecuting McKinley

was justified. Thus, we do not need to address the state’s third assignment of error,

in which the state argues that the trial court erred by finding that the delay was not

justified. See Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 107

(denying relief on claim of unconstitutional preindictment delay without

considering reasons for delay when defendant failed to establish prejudice).

Nonetheless, we will briefly address this assigned error. We note that even if we

agreed with the trial court that McKinley established actual prejudice, we would still

find that the state established that the delay was justified.

               The trial court found that the police acted negligently in 1999 when

they ceased their investigation after they were unable to locate the victim and in

2012 when they failed to charge McKinley after receiving the CODIS link.

               As previously stated, a delay may be unjustifiable when the state’s

reason for the delay is to intentionally gain a tactical advantage over the defendant,

“or when the state, through negligence o[r] error in judgment, effectively ceases the
active investigation of a case, but later decides to commence prosecution upon the

same evidence that was available to it at the time that its active investigation was

ceased.” Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097.

               Here, there is nothing in the record to suggest that the state used the

delay to gain a tactical advantage over McKinley. Further, this is not a case where

the state, through negligence or error, ceased its investigation and later, without new

evidence, decided to prosecute. Unlike the cases in Kafantaris, 8th Dist. Cuyahoga

No. 105937, 2018-Ohio-1397, Bourn, 8th Dist. Cuyahoga No. 107525, 2019-Ohio-

2327, and the second victim in Willingham, 8th Dist. Cuyahoga Nos. 106706 and

107033, 2019-Ohio-1892, this was a cold case until McKinley’s DNA was found to

match the DNA found in the victim’s rape kit in 2012. Police activated the case again

at that point. They attempted to locate the victim by sending letters to her, her

mother, and her friend, but they were not able to locate the victim. It was not until

Investigator Mussell obtained the case in 2017 that she was able to locate the victim,

who lived out of state. The victim viewed a photo array and identified McKinley as

one of the males who raped her in 1999. We therefore conclude that the state

established that it had a justifiable reason for its delay in prosecuting McKinley and,

accordingly, the lower court erred in granting McKinley’s motion to dismiss for

preindictment delay.

               After review, we find that the trial court erred as a matter of law when

it granted McKinley’s motion to dismiss for preindictment delay because McKinley

failed to meet his burden of establishing that he was actually prejudiced by the delay.
We further find that trial court erred as a matter of law when it found that the state

acted negligently in not prosecuting McKinley sooner. Thus, the state’s third

assignment of error is sustained. The state’s first assignment of error is moot in light

of our disposition of its second and third assignments of error.

               Judgment reversed and remanded for further proceedings consistent

with this opinion.

      It is ordered that appellant recover from appellee 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.



MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
RAYMOND C. HEADEN, J., CONCUR
