State v. August, CASE NO. CA2018-12-136
| Decision Date | 07 October 2019 |
| Docket Number | CASE NO. CA2018-12-136 |
| Citation | 2019 Ohio 4126 |
| Parties | STATE OF OHIO, Appellee, v. LENCY D. AUGUST, Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee
Timothy J. McKenna, 125 East Court Street, Suite 950, Cincinnati, Ohio, 45202, for appellant
{¶ 1} Appellant, Lency D. August, appeals his conviction in the Warren County Court of Common Pleas for rape.
{¶ 2} In December 2016, a woman (the "victim") met appellant through an online dating website. The two eventually began living with each other in the victim's townhouse. The victim would drive appellant in her minivan to and from her townhouse to his two jobs. On the night of February 22, 2017, the victim picked appellant up from one job to head home for a short break before driving him to his second job. At some point on this trip, the two began arguing and appellant repeatedly punched the victim in the head and about the body. As they neared her townhouse, appellant ordered her to drive to Walmart. Before they made it to Walmart, appellant changed his mind and commandeered the vehicle by grabbing the steering wheel and using his foot on the pedals. Appellant then drove the vehicle into the service entrance of a nearby shopping center. Appellant guided the vehicle behind the shopping center and eventually to the side of the Kohl's building where the vehicle was stopped. At this point, appellant demanded the victim perform fellatio. The victim, wary of being beaten again and in fear of her safety, complied. Subsequently, appellant ordered the victim to drive them back to her townhouse.
{¶ 3} After arriving at the victim's townhouse, appellant brandished a short-bladed craft knife and told the victim he would hurt her and her three children if she did not comply with him. The two went upstairs to her bedroom. Appellant closed the door and barricaded it with a nearby dresser. Appellant then ordered the victim to have vaginal intercourse with him. After the intercourse took place, the victim heard her seven-year-old daughter asking for help outside the door. Appellant moved the dresser and the victim attended to her daughter, closely supervised by appellant. The two then went back into the bedroom. Appellant again barricaded the door and commanded the victim again perform oral and vaginal intercourse with him.
{¶ 4} The next morning, appellant demanded the victim drive him to the bus station in Dayton. A few miles from the residence, appellant changed his mind and told the victim to drive back home because one of his family members had arranged for a taxi to pick him up at the townhouse. The two came back and waited until the taxi arrived. Appellant left in the taxi. A few hours after appellant's departure, the victim went to the Middletown police toreport the offenses and then to the hospital where a medical examination and rape kit collection were performed.
{¶ 5} Based on the foregoing, in February 2018, a Warren County Grand Jury indicted appellant on five offenses: three counts of rape, all first-degree felonies in violation of R.C. 2907.02(A)(2); and two counts of kidnapping with sexual motivation specifications, both first-degree felonies in violation of R.C. 2905.01(A)(4) and 2941.147(A). Appellant filed a pretrial motion to dismiss the indictment for preindictment delay. After conducting a hearing on the matter, the trial court denied the motion.
{¶ 6} The case proceeded to a jury trial in November 2018. At the trial, the victim, the sexual assault nurse examiner, the investigating police detective, and two Ohio Bureau of Criminal Investigation ("BCI") laboratory analysts testified on behalf of the state. Appellant presented testimony from the taxi company owner and a medical expert. At the conclusion of the trial, the jury found appellant guilty of the rape that occurred in the victim's vehicle and not guilty of the remaining charges which allegedly occurred later at the victim's residence. At the end of November, the trial court sentenced appellant to a mandatory prison term of 10 years, designated him a Tier III sexual offender, and notified him of the requisite postrelease control conditions.
{¶ 7} Appellant now appeals the conviction, raising five assignments of error for review.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO DISMISS DUE TO PRE-INDICTMENT DELAY.
{¶ 10} In the first assignment of error, appellant argues that the trial court violated his right to due process when it denied the motion to dismiss the indictment. Appellant asserts that he suffered actual prejudice when the state waited more than a year from the date of theoffense to indict him.
{¶ 11} An unjustifiable delay between the commission of a criminal offense and an indictment for that offense that causes actual prejudice violates an accused's right to due process of law as provided by the United States and Ohio Constitutions. State v. Luck, 15 Ohio St.3d 150 (1984), paragraph two of the syllabus. Nevertheless, the primary protection against stale charges is the applicable statute of limitations. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044 (1977); State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 11. In reviewing a claim of preindictment delay, the court engages in a burden-shifting framework. Initially, the accused bears the burden of establishing actual prejudice, then, the burden shifts to the state to provide evidence to justify the delay. Jones at ¶ 13.
Jones at ¶ 28. The prejudice advanced must be more than merely speculative. Id. at ¶ 20; See also State v. Heath, 12th Dist. Warren No. CA96-04-035, 1997 Ohio App. LEXIS 351, at *5 (Feb. 3, 1997) (). Appellant must show an exculpatory value of the alleged missing evidence in establishing actual prejudice. State v. Fox, 12th Dist. Fayette No. CA2008-03-009, 2009-Ohio-556, ¶ 37. Any claim of prejudice by a defendant must be balanced against the other evidence in order to determine whether actual prejudice will impact the defendant at trial. Only if actual prejudice will occur at trial will the court then determine whether the reason forthe delay is unjustified. Id. A court will not presume prejudice merely because the delay exceeds a particular length of time. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 98; accord Fox at ¶ 37.
{¶ 13} Appellant identifies three matters to demonstrate actual prejudice: the length of time it took to indict him, the death of the taxi driver who picked him up on the day after the incident, and the unavailability of video recordings from surveillance cameras at the shopping center. Again, we note that the length of time between the commission of the offense and indictment does not create a presumption of prejudice. Adams at ¶ 98. Consequently, the only factors relevant to this claim are the death of the potential witness and the unavailability of video recordings. After review of the record, we find that the evidence offered by appellant to prove actual prejudice is speculative at best.
{¶ 14} First, the death of a potential witness must be considered in relation to the other evidence available at the time of the indictment and the witness's overall relevance to the defense. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105 at ¶ 26. Appellant contends that the taxi driver might have been able to testify as to the victim's demeanor and that his interpretation of her demeanor might indicate that she was not fearful of appellant or displaying the anxiety expected of one recently victimized. While we note that appellant does not need to precisely establish what the witness's testimony will be to demonstrate the requisite prejudicial effect, Id. at ¶ 28, appellant's suggested impact of the potential testimony is unconvincing. Appellant relies only on a possibility that the witness was paying attention to the interactions between the victim and appellant. At trial, the victim testified that appellant hugged her prior to getting into the cab, but that she did not reciprocate the hug and merely accepted it to facilitate appellant's peaceful departure. There is no reason to believe the taxi driver remembered this particular customer among other fares he accepted in the days and weeks following this event. The taxi driver's possible observation of the victim came severalhours after the alleged offenses occurred. Potential interpretation of the victim's demeanor would have little weight, and would be speculative, especially when considering the victim herself was subject to cross-examination. The taxi driver's testimony would not minimize or eliminate the impact of the state's evidence and bolster the appellant's defense. Assuming the existence of this potential testimony, it is speculative and only tangentially relevant, therefore appellant cannot demonstrate actual prejudice.
{¶ 15} Second, while it is true that video recordings were no longer available for use at trial, appellant has again failed to demonstrate how the video recordings would have minimized the state's evidence and bolstered his defense. While there was one camera at the front corner of the Kohl's building, it was not...
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