Opinion
No. 09CA009738.
Dated: August 9, 2010.
Appeal from Judgment Entered in the Court of Common Pleas County of Lorain, Ohio Case No. 08CR076714.
Dennis Will, Prosecuting Attorney, and Billie Jo Belcher, Assistant Prosecuting Attorney, for Appellant.
DANIEL Wightman, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
{¶ 1} Appellant, the State of Ohio, appeals from the decision of the Lorain County Court of Common Pleas. This Court reverses and remands for proceedings consistent with this opinion.
I.
{¶ 2} On September 28, 2007, Angela Anderson sent an email to the Lorain Police Chief alleging that Stanley Marrero had harassed her in 1993. The email was sent in response to a news article regarding Marrero's indictment which stemmed from accusations that Marrero had sex with two women while on duty. Lt. James Rohner from the Lorain Police Department contacted Anderson, who stated that in 1993 she contacted police a couple of months after her first encounter with Marrero. She stated that she had informed an unknown male with whom she spoke over the phone that Marrero was coming on to her and it made her uncomfortable. She did not inform the unidentified male that Marrero forced her to have sex with him. She left her name and number and the unknown male said he would talk to Marrero.
{¶ 3} As a result of Anderson's accusations, on August 21, 2008, a supplemental indictment was filed, charging Marrero with two counts of rape, in violation of R.C. 2907.02, two counts of sexual battery, in violation of R.C. 2907.03, one count of menacing by stalking, in violation of R.C. 2903.211, and two counts of gross sexual imposition, in violation of R.C. 2907.05. On November 13, 2009, Marrero filed a motion to dismiss the indictment, citing an unconstitutional pre-indictment delay. On December 7, 2009, the trial court held a hearing. On December 9, 2009, the trial court dismissed the indictment. The State timely appealed, and has asserted one assignment of error for our review.
II. ASSIGNMENT OF ERROR
"THE TRIAL COURT ERRED IN DISMISSING THE SUPPLEMENTAL INDICTMENT, EXCLUDING COUNT FOURTEEN (14)."
{¶ 4} In its sole assignment of error, the State contends that the trial court erred in dismissing the supplemental indictment, excluding count 14, menacing by stalking. We agree.
{¶ 5} We review a trial court's legal conclusions in ruling on a pretrial motion to dismiss criminal charges de novo. State v. Saxon, 9th Dist. No. 09CA009560, 2009-Ohio-6905, at ¶ 5, citing State v. Davis, 9th Dist. No. 08CA009412, 2008-Ohio-6741, at ¶ 22 (applying a de novo standard to the trial court's legal conclusions on a motion to dismiss); State v. Henley, 8th Dist. No. 86591, 2006-Ohio-2728, at ¶ 7 ("Courts reviewing a decision on a motion to dismiss for pre-indictment delay accord deference to the lower court's findings of fact but engage in a de novo review of the lower court's application of those facts to the law.").
{¶ 6} Because the statute of limitations is the "primary guarantee against [the State] bringing overly stale charges[,]" charges brought outside the statute of limitations are presumptively prejudicial. (Internal citations and quotations omitted.) United States v. Marion (1971), 404 U.S. 307, 322. In the instant case, Marrero was charged with two counts of rape, in violation of R.C. 2907.02, first-degree felonies; two counts of sexual battery, in violation of R.C. 2907.03, third-degree felonies; one count of menacing by stalking, in violation of R.C. 2903.211, a fourth-degree felony; and two counts of gross sexual imposition, in violation of R.C. 2907.05, fourth-degree felonies. Pursuant to the applicable statute of limitations, the State was required to bring charges of rape, sexual battery, and gross sexual imposition within 20 years after the offense was committed. R.C. 2901.13(A)(3)(a). The indictment stems from offenses that occurred in 1993, thus, the charges were brought within 20 years after the offenses were committed.
{¶ 7} Despite the fact that the charges were brought within the 20 year statute of limitations period, the "statute of limitations does not fully define [a defendant's] rights with respect to the events occurring prior to indictment." Marion, 404 U.S. at 324. A defendant's right to due process is violated when the delay between the commission of the offense and the indictment is unjustifiable and results in actual prejudice to the defendant. State v. Barnhardt, 9th Dist. No. 05CA008706, 2006-Ohio-4531, at ¶ 16, citing State v. Luck (1984), 15 Ohio St.3d 150, paragraph two of the syllabus. The Ohio Supreme Court has set forth a two prong test to determine if an indictment should be dismissed due to an unreasonable pre-indictment delay. Luck, 15 Ohio St.3d at 153-154. "Luck requires first that the defendant produce evidence demonstrating that the delay has caused actual prejudice to his defense. Then, after the defendant has established actual prejudice, the state must produce evidence of a justifiable reason for the delay." (Internal quotations omitted.) State v. Whiting (1998), 84 Ohio St.3d 215, 217.
{¶ 8} "Proof of actual prejudice to the defendant must be specific and non-speculative; the defendant bears the burden of demonstrating the exculpatory value of the evidence of which he was deprived due to the delay." State v. Tullis, 10th Dist. No. 04AP-333, 2005-Ohio-2205, at ¶ 14, citing State v. Peoples, 10th Dist. No. 02AP-945, 2003-Ohio-4680. In Luck, the Ohio Supreme Court determined that Luck suffered actual prejudice by a 15 year pre-indictment delay due to the specific prejudicial factors she set forth. For example, she identified a specific witness that could have aided her defense that had since died. Further, police investigated the crime when it occurred, 15 years prior to the indictment, and all the taped interviews of the potential witnesses and suspects had been lost. Finally, with regard to the second prong of the test, the Court determined that the police had no justifiable reason for the delay in prosecution that caused prejudice. The State conceded that an "error in judgment" led the police to cease investigation at the time of crime, and sought to bring the indictment 15 years later based upon the same evidence available at the time of the crime. Luck, supra, at 158. Thus, the facts the Ohio Supreme Court faced in Luck are different than the facts set forth in the instant case, as will be discussed below.
{¶ 9} In his motion to dismiss, Marrero asserted the following as "proof of actual prejudice[;]" Tullis, at ¶ 14.
"1. The memories of witnesses have faded over time. * * *
"2. Had the case been properly and timely prosecuted, the victim would have been subject to a physical examination. The results of this examination would have revealed no evidence of rape, i.e., no bruising, marks, etc. The physical examination would have been exculpatory. The delay in prosecution of the rape complaint makes the examination impossible, to the prejudice of the defendant.
"3. A standard rape victim examination would have resulted in identification evidence such as DNA that would have excluded the defendant.
"4. Timely police investigation would have included examination of the scene of the alleged rape. The investigation would have revealed evidence inconsistent with the rape allegation.
"5. Timely police investigation would have included canvassing the alleged victim's neighbors and other potential witnesses. These individuals] are no longer known and cannot now be reasonably discovered. The neighbors would be able to offer evidence that they were not aware of any rape or other assault in the alleged victim's apartment on the date of the alleged rapes.
"6. Timely prosecution would have given the parties the opportunity to obtain telephone records. These records would have revealed that the alleged victim made numerous calls to the defendant on or about the dates of the alleged rapes. Evidence that she made such calls would corroborate the defendant's contention that she was sought out [sic] the defendant to have a relationship. Due to the delay in prosecution, these telephone records are no longer available to the defendant.
"7. Timely police investigation would have revealed that the alleged victim acted totally inconsistent with her allegations of rape. Further a timely police interview with the alleged victim would have established inconsistencies and facts exculpatory to the defendant. Due to the fifteen year delay in the investigation, the defendant is now limited in his ability to challenge the bare allegations of the alleged victim. Now the case has become a swearing contest between the alleged victim and the defendant and the defendant has been greatly diminished in his ability to attack the credibility of the alleged victim as a witness."
{¶ 10} Statements 1, 4, 5 and 7 above lack the specificity required by the legal authority cited above. A defendant "cannot establish actual prejudice merely by asserting the absence or difficulty of locating relevant witnesses and evidence. Tullis, supra, at ¶ 15. Rather, to establish actual prejudice, [a defendant] must be able to demonstrate the specific way in which these witnesses would have aided his defense. Id." Barnhardt, supra, at ¶ 17. The remaining statements are speculative as to what results any test might have revealed.
{¶ 11} Further, all seven statements relate specifically to the alleged rape, which did not come to light until 2007. In fact, during the motion to dismiss hearing, Lt. James Rohner stated that the victim informed him that in 1993 she contacted the police a "couple months" after the first encounter. She informed Rohner that she never told police that Marrero forced himself on her and had sex with her. Rather, she said that she "just did not have the courage to volunteer the information because she felt guilty that she had done something wrong." Therefore, it is purely speculative, given the information available to the police, had they pursued the investigation, that the victim would have discussed the rape allegation. Even assuming she would have discussed the rape allegation, the testimony revealed that she did not call the police immediately following the encounter and therefore, a physical examination may not have yielded any evidence.
{¶ 12} Accordingly, we conclude that Marrero has failed to meet the first prong of the test as he has not set forth specific and non-speculative evidence to show that he was actually prejudiced by the delay. Consequently, the burden did not shift to the State to present evidence of a justifiable reason for the delay. "Finally * * * this is not a case where the State gathered evidence but failed or refused to act on that evidence. Rather, the State acted after learning of the offense, albeit many years after the offense occurred." (Internal citations omitted) State v. Shilling, 9th Dist. No. 08CA0002, 2008-Ohio-4951, at ¶ 14.
{¶ 13} Accordingly, the trial court erred when it granted Marrero's motion to dismiss the indictment. The State's sole assignment of error is sustained.
III.
{¶ 14} The State's sole assignment of error is sustained. The judgment of the Lorain County Court of Common Pleas is reversed and the cause remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellee.
CARR, J. and BELFANCE, P. J. concur.