[Cite as State v. Kirk, 2016-Ohio-8296.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104866
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
LACEY KIRK
DEFENDANT-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598476-A
BEFORE: Laster Mays, J., Keough, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 22, 2016
-i-
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Edward Fadel
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
Myron P. Watson
614 W. Superior Avenue
1144 Rockefeller Building
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Plaintiff-appellant, state of Ohio (“State”), appeals the trial court’s decision to
grant a motion to dismiss the indictment against the defendant-appellee, Lacey Kirk
(“Kirk”). Kirk, in agreement with the State, concedes the error. We reverse and
remand.
I. Facts
{¶2} In August 2015, Kirk was charged with seven counts of rape, kidnapping, and
other related offenses from two incidents that took place in 2000 and 2004. The State
decided to prosecute them together, and Kirk filed two motions. The first motion asked
the court to dismiss the entire indictment because of prejudicial preindictment delay, and
the other asked the court to sever the counts for two separate trials.
{¶3} In 2016, the trial court denied Kirk’s motion to dismiss five counts of the
indictment that stemmed from the incident in 2000, that included:
Count 1: Rape, a first-degree felony, in violation of
R.C. 2907.02(A)(2);
Count 2: Rape, a first-degree felony, in violation of
R.C. 2907.02(A)(2);
Count 3: Corruption of a Minor, a fourth-degree felony, in violation of
R.C. 2904.04(A);
Count 4: Corruption of a Minor, a fourth-degree felony, in violation of
R.C. 2907.04(A); and
Count 5: Kidnapping, a first-degree felony, in violation of R.C.
2905.01(A)(4).
But, the trial court granted the motion to dismiss the counts involving the 2004 incident,
that included:
Count 6: Rape, a first-degree felony, in violation of R.C. 2907.02(A)(2); and
Count 7: Kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(4).
The trial court stated,
We can speculate all we want, but I’ve got hard facts here of a named
suspect, a named vehicle with a description and a license plate that
apparently nothing was done to investigate this case, and I see actual
prejudice right there. Based upon what I’m hearing, the 2004 case is
dismissed with prejudice. I believe there is actual prejudice. I believe
that there was no investigation done, that there was — we have a named
suspect, we have evidence that could have been easily researched or
investigated. It appeared that they closed the book on this case and did
nothing with it.
The trial court decided that prosecuting Kirk for the 2004 incident would violate his due
process rights because of prejudicial preindictment delay. As a result, the State has filed
this timely appeal asserting one assignment of error for our review:
I. The trial court erred in dismissing part of the indictment on the
grounds of preindictment delay.
II. Indictment Dismissal
A. Standard of Review
{¶4} “We review a trial court’s decision on a motion to dismiss an indictment
pursuant to a de novo standard of review. De novo review requires an independent
review of the trial court’s decision without any deference to the trial court’s
determination.” (Citations omitted.) State v. Knox, 8th Dist. Cuyahoga Nos. 103662
and 103664, 2016-Ohio-5519, ¶ 12.
B. Law and Analysis
{¶5} In its sole assignment of error, the State argues that the trial court erred in
dismissing part of the indictment on the grounds of preindictment delay. The trial court
reasoned that Kirk was prejudiced by the State’s decision to indict Kirk 12 years after the
incident. The State contends that the trial court dismissed the indictment two days
before the Ohio Supreme Court’s decision in State v. Jones, Slip Opinion No.
2016-Ohio-5105, and the decision in Jones should govern.
{¶6} In Jones, the court held that “pre-indictment delay violates due process only
when it is unjustifiable and causes actual prejudice * * *.” Id. at ¶ 12. The court also
noted that “we have firmly established a burden-shifting framework for analyzing a
due-process claim based on pre-indictment delay. Once a defendant presents evidence
of actual prejudice, the burden shifts to the state to produce evidence of a justifiable
reason for the delay.” Id. at ¶ 13. The court went on to state “that unjustifiable delay
does not violate due process unless it results in actual prejudice.” Id. at ¶ 16.
{¶7} In accordance with the Supreme Court’s decision, this court has held that:
[I]n reviewing pre-indictment delay, the determination of actual or
substantial prejudice entails a delicate judgment based on the circumstances
of each case. The 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. (Citations omitted.)
State v. Powell, 2016-Ohio-1220, 61 N.E.3d 789, ¶ 15 (8th Dist.).
{¶8} Other than the time it took the State to indict Kirk and the inaction of the
police, the trial court did not state how Kirk would be prejudiced by the preindictment
delay.
Prejudice is not presumed solely due to a lengthy delay. Similarly, a
general assertion that the defendant cannot remember the events of the
alleged crime does not constitute actual prejudice. Furthermore, the
defendant may not rely on speculation or vague assertions of prejudice.
Rather, proof of actual prejudice must be specific, particularized and
non-speculative. The defendant must show the exculpatory value of the
alleged missing evidence to prove substantial prejudice. In other words, a
defendant must show how lost witnesses and physical evidence would have
proven the defendant’s asserted defense.
Id. at ¶ 16. See 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
pre-indictment delay in prosecution”).
{¶9} In Jones, the court disagreed with the appellate court for using the inaction of
the police as proof of prejudice. The court stated,
Nevertheless, as we explain below, under the guise of determining the
appropriate standard for gauging actual prejudice, the majority blurred the
distinctions between the existence of actual prejudice and the lack of a
justifiable reason for the delay by focusing almost exclusively on the
actions and inactions of the police.
Jones, Slip Opinion No. 2016-Ohio-5105, ¶ 15.
{¶10} Because Jones was decided two days after the trial court’s ruling, the court
did not have the benefit of clarity the Supreme Court provided regarding this standard.
Kirk and the State agree that this case should be remanded to the trial court to make a
decision given the clarified standard from the court. As such, we reverse the trial court’s
decision and remand for the court to reconsider the motion in light of the decision in
Jones.
{¶11} Judgment is reversed and remanded.
It is ordered that the appellant and appellee split 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 out this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, J., CONCURS;
KATHLEEN ANN KEOUGH, P.J., CONCURS IN JUDGMENT ONLY