State v. Hawkins

• Court: Ohio Court of Appeals
• Writing for the Court: WELBAUM, P.J.
• Citation: State v. Hawkins, 2018 Ohio 867, Appellate Case No. 27019 (Ohio App. Mar 09, 2018)
• Decision Date: 09 March 2018
• Docket Number: Appellate Case No. 27019
• Parties: STATE OF OHIO Plaintiff-Appellee v. BRIAN HAWKINS Defendant-Appellant

2018 Ohio 867

STATE OF OHIO Plaintiff-Appellee v. BRIAN HAWKINS Defendant-Appellant

Appellate Case No. 27019

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

March 9, 2018

Trial Court Case No. 2015-CR-1099

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, Ohio 43160 Attorney for Defendant-Appellant

WELBAUM, P.J.

{¶ 1} Defendant-Appellant, Brian Hawkins, appeals from his convictions and sentences for rape and kidnapping with a sexual motivation specification. In support of his appeal, Hawkins contends that the trial court erred in overruling his motion to dismiss, which was based on a thirteen-year pre-indictment delay. Hawkins also contends that his convictions are against the manifest weight of the evidence and that cumulative errors prejudiced his right to a fair trial.

{¶ 2} In a supplemental brief, Hawkins raised several additional assignments of error, including that his convictions were based on insufficient evidence, that trial counsel provided constitutionally ineffective assistance, that the trial court violated his right to due process and a fair trial, and that prosecutorial misconduct resulted in a denial of due process. For the reasons discussed below, we find no error in the trial court proceedings. Accordingly, the assignments of error will be overruled, and Hawkins' convictions and sentences will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In May 2015, the State filed an indictment alleging that Hawkins had raped A.J. on July 30, 2002. The trial court appointed counsel, and Hawkins then pled not guilty to the charge. In June 2015, the trial court granted Hawkins' motion for funds to hire an investigator, and authorized up to $1,000 to hire investigator, Wayne Miller. Hawkins also filed a motion to dismiss the charge, based on the State's alleged unjustifiable delay in filing the rape indictment.

{¶ 4} In July 2015, the State filed re-indictment "B," which charged Hawkins with rape, as before, but added a second count (kidnapping, with a sexual motivation specification). Subsequently, the trial court held hearings on July 23 and August 19, 2015, concerning Hawkins' motion to dismiss. The trial court then filed a decision in October 2015, concluding that Hawkins failed to establish that the pre-indictment delay caused him real, substantial prejudice in defending the case. In addition, the court found that, assuming a contrary prejudice determination, the State could not establish that the delay occurred under justifiable circumstances.

{¶ 5} Trial was held before a jury in December 2015. After hearing the evidence, the jury found Hawkins guilty as charged. After holding a sex offender classification hearing, the trial court found that Hawkins was a sexually oriented offender. The court then merged the kidnapping and rape offenses. Upon the State's election to have Hawkins sentenced on the rape conviction, the court sentenced Hawkins to 10 years in prison.

{¶ 6} Hawkins had filed a premature appeal on the day he was convicted, prior to sentencing. That appeal was docketed as Montgomery County Case No. 26962, and was dismissed for lack of jurisdiction on February 16, 2016. Hawkins then filed a timely notice of appeal following his sentence, and that appeal is currently before us.

II. Pre-indictment Delay

{¶ 7} Hawkins' First Assignment of Error states that:

The Trial Court Erred in Overruling Mr. Hawkins' Motion to Dismiss, as the Thirteen Year Pre-Indictment Delay Caused Actual Prejudice to His Right to a Fair Trial, Thus Violating His Due Process Rights.

{¶ 8} Under this assignment of error, Hawkins contends that he suffered actual prejudice due to a delay of nearly 13 years between the alleged crime and the filing of the indictment. Hawkins' claim of prejudice is based on the fact that the only two persons who could potentially corroborate what happened on the night in question are now deceased.

{¶ 9} "An unjustifiable delay between the commission of an offense and a defendant's indictment therefor, 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. "Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay." (Citations omitted.) State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13.

{¶ 10} Decisions on "actual prejudice" involve " 'a delicate judgment based on the circumstances of each case.' " State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). To make this assessment, "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." Walls at ¶ 52, citing Luck at 154. (Other citation omitted.) However, "speculative prejudice does not satisfy the defendant's burden." Jones at ¶ 20, citing Luck at ¶ 56. (Other citation omitted.)

{¶ 11} In the case before us, the trial court heard from the following witnesses at the evidentiary hearings in connection with Hawkins' motion to dismiss: Brian Hawkins; Wayne Miller, Hawkins' private investigator; Carol Ewing, a retired detective with the Dayton Police Department ("DPD"); Lindsey Dulaney, a current detective with the DPD Special Victims' Unit ("SVU"); Gary Ware, an investigator with the Montgomery County Prosecutor's Office; and Justin Hayes, a training detective for the DPD SVU. The testimony of these individuals revealed the following factual background.

{¶ 12} In July 2002, Ewing was a detective assigned to the DPD sexual assault child endangerment unit. Ewing was assigned a case involving A.J., who had allegedly been raped in the early morning hours of July 30, 2002, while she was a runaway from a foster home. The rape occurred outdoors behind the Wesley Center, which was located on Delphos Avenue, in Dayton, Ohio.¹ At the time, A.J. was fifteen years old.

{¶ 13} After the alleged rape, A.J. ran to a nearby Burger King, which was located a few blocks from the Wesley Center, and pounded on the restaurant's door. A security guard answered and called the police, who transported A.J. to Dayton Children's Hospital, where a rape kit was done. The rape kit was then sent to the Miami Valley Regional Crime Lab ("MVRCL") for processing.

{¶ 14} Originally, based on information as to the assailant's alleged nickname of "Twin," Ewing put together two photospreads, but A.J. did not pick out either of the suspected individuals. On August 6, 2002, A.J. provided Ewing with Brian Hawkins' name, which A.J. had obtained from friends. Ewing compiled another photospread, and on August 14, 2002, A.J. identified Hawkins as the person who had committed the rape.

{¶ 15} Ewing interviewed Hawkins in his home on October 29, 2002, because hehad been recently shot and could not walk. The interview was not recorded. Ewing would have noted in her report if Hawkins were heavily sedated or under the influence during the interview. She did not make such a notation.

{¶ 16} Ewing told Hawkins the date of the alleged offense, and he said he thought he might have been in the hospital at the time. Ewing later followed up and learned that Hawkins had been in the hospital on August 11, 2002, which was about a week and a half after the alleged rape.

{¶ 17} Ewing asked Hawkins if he knew someone with A.J.'s name, and he said he did not. He stated that he did not know A.J., that he would not have sex with a minor, and that he would not have sex outside. Hawkins did not provide Ewing with the names of any witnesses or an alibi. If Hawkins had given Ewing the names of witnesses, she would have followed up.

{¶ 18} Hawkins recalled talking to a detective in October 2002. He stated that he had just gotten shot and was sedated. Although he could not recall what the detective said, he also testified that she talked about a knife, which "threw" him off. He said he thought they had the wrong person because he had never pulled a knife on anyone. The police did not show him any pictures of the victim. He also denied that he had said he would not have sex outside, as he had done that plenty of times. He claimed Ewing had lied in her report.

{¶ 19} In November 2002, Ewing was injured and her last day of work was February 2, 2004. During the interim, she had two surgeries and at some point was on restricted duty until she retired. She could not recall specific dates, other than that she had her first surgery in July 2003. In February or March 2003, Ewing received results back from MVRCL, indicating the presence of sperm in the rape kit. Ewing then obtained a court order in October 2003 for a buccal swab from Hawkins. At that point, Ewing was on restricted duty, and another detective obtained the sample from Hawkins.

{¶ 20} DPD did not receive the results from the DNA test until March 2004, which was after Ewing retired. Hawkins' DNA was a match, and there would have been sufficient cause at that time for the police to present the case to the prosecutor's office.

{¶ 21} Ewing's notes on the case, including the photo spread, were kept in a packet, which was the official police file. There would have been a notation on the front concerning whether the case was closed or open. Ewing also kept her pending cases in a certain file cabinet. She did not know what happened to the...