[Cite as State v. Tyler, 2016-Ohio-8245.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 16-CA-22
RANDY TYLER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 15 CR 643
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ANDREW T. SANDERSON
Licking County Prosecutor Burkett & Sanderson, Inc.
73 North Sixth Street
By: PAULA M. SAWYERS Newark, Ohio 43055
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 16-CA-22 2
Hoffman, J.
{¶1} Defendant-appellant Randy Tyler appeals his conviction and sentence
entered by the Licking County Court of Common Pleas, on 2 counts of rape, in violation
of R.C. 2907.02(A)(1)(b) and (A)(2), felonies of the first degree; and one count of sexual
battery, in violation of R.C. 2907.03(A)(5), a felony of the third degree, following a jury
trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 10, 2015, the Licking County Grand Jury indicted Appellant
on the aforementioned charges. The charges arose from conduct which occurred
between June 9, 1997, and June 8, 2000; and between June 9, 2000, and June 9, 2002,
and which involved a minor victim. Appellant appeared before the trial court for
arraignment on November 3, 2015, and entered a plea of not guilty to the charges.
{¶3} Appellant filed a motion to dismiss on the ground of preindictment delay.
Therein, Appellant asserted the delay resulted in actual prejudice to him as the
whereabouts, the mental health, and current name of the victim’s mother were no longer
available; potential witnesses were no longer available; Appellant’s mother who “has
specific knowledge pertinent to this case” was too ill to attend court or participate in any
proceedings; and Appellant’s military records which would establish he had a vasectomy
were no longer available. Appellant further maintained there was no justification for the
delay.
{¶4} The state filed a memorandum in opposition. The state indicated the victim
contacted the Pataskala Police Department to report the offenses on September 29,
Licking County, Case No. 16-CA-22 3
2007. The victim was 20 years old at that time and resided in Texas. The Pataskala
Police Department arranged for the victim to meet with Appellant and record their
conversation. When the victim asked Appellant why he had molested her, Appellant
replied he was lonely and sick. After the victim returned to Texas, the Pataskala Police
interviewed Appellant. Sgt. Gary Smith, who was in charge of the case, made subsequent
attempts to contact the victim, but was unsuccessful as she had moved several times and
had also changed her phone number several times.
{¶5} The victim moved back to Ohio in 2015. On June 1, 2015, the victim again
contacted the Pataskala Police Department regarding Appellant and reopening the case.
Det. Bradley Ramsey, who was assigned to the case, reviewed the material from the prior
investigation including the recordings of the victim’s conversation with Appellant. Det.
Ramsey interviewed the victim. He also attempted to contact Appellant on numerous
occasions, but was unsuccessful. After completing the investigation, the matter was
turned over to the Licking County Prosecutor’s Office, and Appellant was subsequently
indicted.
{¶6} The trial court conducted a hearing on Appellant’s motion to dismiss on
January 20, 2016. Via Judgment Entry filed the same day, the trial court overruled
Appellant’s motion, finding Appellant failed to meet his burden and did not demonstrate
prejudice.
{¶7} The matter proceeded to jury trial on February 24, 2016. After hearing all
the evidence and deliberating, the jury found Appellant guilty of all of the charges
contained in the Indictment. The trial court ordered a presentence investigation report.
Licking County, Case No. 16-CA-22 4
The trial court ultimately sentenced Appellant to an aggregate term of incarceration of
thirteen years.
{¶8} It is from his conviction and sentence Appellant appeals, raising as his sole
assignment of error:
{¶9} THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL.
I
{¶10} In order to substantiate a claim of ineffective assistance of counsel, the
appellant must show (1) counsel's performance was deficient, and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble,
122 Ohio St.3d 297, 2009–Ohio–2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When a
convicted defendant complains of the ineffectiveness of counsel's assistance, the
defendant must show that counsel's representation fell below an objective standard of
reasonableness. Strickland at 688. Judicial scrutiny of defense counsel's performance
must be highly deferential. Id. at 689. In Ohio, there is a presumption that a properly
licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905
(1999).
{¶11} Even assuming that counsel's performance was ineffective, the defendant
must still show that the error had an effect on the judgment. State v. Bell, 8th Dist.
Cuyahoga No. 102141, 2015–Ohio–4178, ¶ 60, citing State v. Bradley, 42 Ohio St.3d
136, 142, 538 N.E.2d 373 (1989). Reversal is warranted only where the defendant
Licking County, Case No. 16-CA-22 5
demonstrates that there is a reasonable probability that, but for counsel's errors, the result
of the proceeding would have been different. Id.
{¶12} Appellant contends trial counsel was ineffective for failing to properly
establish the prejudice to his defense caused by the preindictment delay. Specifically,
Appellant maintains “the failure of his counsel to raise issues related to the exculpatory,
recorded phone call between [Appellant] and the alleged victim that was ‘lost’ during the
intervening time so prejudiced the proceedings below as to deny him his constitutionally
guaranteed right to a speedy trial herein.” Brief of Appellant at 5.
{¶13} 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. See State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d
1097 (1984); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468
(1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
{¶14} Courts apply a two-part test to determine whether preindictment delay
constitutes a due process violation. The defendant has the initial burden to show he was
substantially and actually prejudiced due to the delay. State v. Whiting, 84 Ohio St.3d
215, 217, 702 N.E.2d 1199 (1998). However, “proof of actual prejudice, alone, will not
automatically validate a due process claim” as “the prejudice suffered by the defendant
must be viewed in light of the state's reason for the delay.” Luck, supra at 154, citing
Marion. Thus, once a defendant establishes “actual prejudice”, the burden then shifts to
the state to produce evidence of a justifiable reason for the delay. Id. Thereafter, the due
process inquiry involves a balancing test by the court, weighing the reasons for the delay
Licking County, Case No. 16-CA-22 6
against the prejudice to the defendant, in light of the length of the delay. State v. Walls,
96 Ohio St.3d 437, 2002–Ohio–5059, 775 N.E.2d 829, ¶ 51.
{¶15} The Eighth District Court of Appeals has established the standard for
demonstrating actual prejudice, the “exculpatory evidence standard”:
The defendant may not rely on speculation or vague assertions of
prejudice. Proof of actual prejudice must be specific, particularized, and
non-speculative. Therefore, in order to establish actual prejudice, the
defendant must demonstrate the exculpatory value of the evidence of which
he was deprived due to the delay. State v. Thomas, 8th Dist. Cuyahoga
No. 101202, 2015–Ohio–415, ¶ 11.
{¶16} The defendant must therefore show “how lost witnesses and physical
evidence would have proven the defendant's asserted defense.” State v. Smith, 8th Dist.
Cuyahoga No. 100501, 2014–Ohio–3034, ¶ 26, citing State v. Davis, 7th Dist. Mahoning
No. 05 MA 235, 2007–Ohio–7216, ¶ 17. “Without proof of prejudice, meaning something
which adversely affects [a defendant's] ability to defend himself at trial, there is no due
process violation for preindictment delay in prosecution.” Id.
{¶17} We find Appellant is unable to establish actual prejudice as the allegedly
exculpatory lost recorded conversation did not affect his ability to defend himself at trial.
{¶18} Evid.R. 801(D) defines statements which are not hearsay by their very
definition. Included in these statements are admissions by a party-opponent. See Evid.R.
801(D)(2). Pursuant to Evid.R. 801(D)(2), such statements must be offered “against a
party.” (Emphasis added.) When a statement a defendant makes to a law enforcement
Licking County, Case No. 16-CA-22 7
officer is offered by the state of Ohio against the defendant, a party-opponent, that
statement, by its very definition, is not hearsay. On the other hand, if a defendant seeks
to present an exculpatory statement he made to a law enforcement officer through an
audio recording of the statement, such statement is not being offered against the state,
the party-opponent, but rather offered by the defendant. Therefore, it is hearsay. Evid.R.
801(C). In order for that statement to be permitted without the defendant testifying, the
defendant must establish the statement falls within one of the clearly defined exceptions
to the hearsay rule. See, State v. Lewis, 7th Dist. No. 03 MA 36, 2005–Ohio–2699, ¶ 127–
128.
{¶19} The potentially exculpatory statements made by Appellant in the lost
recording do not fall within one of the exceptions to the hearsay rule. Accordingly, we find
such evidence would not have been admissible. Because the evidence about which
Appellant complains was inadmissible hearsay, we find Appellant was not prejudiced by
counsel’s failure to raise the issue in his motion to dismiss the complaint due to the
preindictment delay.
{¶20} Appellant’s sole assignment of error is overruled.
Licking County, Case No. 16-CA-22 8
{¶21} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, J.
Farmer, P.J. and
Delaney, J. concur