[Cite as State v. Lynch, 2018-Ohio-1078.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105122
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CORNELIUS LYNCH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585501-A
BEFORE: Celebrezze, J., Keough, P.J., and Jones, J.
RELEASED AND JOURNALIZED: March 22, 2018
ATTORNEYS FOR APPELLANT
Mark Stanton
Cuyahoga County Public Defender
BY: Jeffrey Gamso
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Cornelius Lynch (“Lynch”), brings this appeal challenging his
convictions for rape and kidnapping. Specifically, Lynch argues that the trial court erred by
denying his motions to dismiss the indictment based on preindictment delay, the state engaged in
prosecutorial misconduct, he was denied the effective assistance of counsel, and that the charges
should have been dismissed based on double jeopardy grounds. After a thorough review of the
record and law, this court affirms.
I. Factual and Procedural History
{¶2} The instant appeal arose from an incident that occurred between Lynch and his
girlfriend’s daughter, M.H. At the time of the incident, M.H. was 12 years old, and Lynch had
been living with his girlfriend, S.P., and M.H. for a few years. M.H. alleged that Lynch
sexually assaulted her on May 26, 1994. M.H. reported the incident to her mother the next
morning, and M.H. went to the hospital where a rape kit examination was performed. M.H.
spoke with hospital staff and the police about the incident, and she indicated that Lynch was her
assailant. Cuyahoga County Division of Children and Family Services (“CCDCFS”)
investigators also interviewed M.H. and Lynch. Approximately two weeks later, M.H. recanted
her allegations against Lynch.
{¶3} Although M.H. recanted her allegations, her rape kit was submitted to the Ohio
Bureau of Criminal Investigation (“BCI”) for DNA testing in August 2012. DNA testing
established that Lynch could not be excluded as the source of semen on the vaginal swab from
the rape kit.
{¶4} After learning of the DNA match, investigators reinterviewed M.H. and S.P. M.H.
informed the investigators that Lynch assaulted her in May 1994.
{¶5} On May 15, 2014, in Cuyahoga C.P. No. CR-14-585501-A, the Cuyahoga County
Grand Jury returned a three-count indictment charging Lynch with (1) rape, a first-degree felony
in violation of R.C. 2907.02(A)(1)(b), with a furthermore specification alleging that Lynch
purposely compelled the victim to submit by force or threat of force, (2) rape, a first-degree
felony in violation of R.C. 2907.02(A)(1)(b), and (3) kidnapping, a first-degree felony in
violation of R.C. 2905.01(A)(4). Count 1 alleged that Lynch engaged in vaginal intercourse
with M.H., and Count 2 alleged that Lynch engaged in cunnilingus with M.H. Lynch was
arraigned on May 30, 2014. He pled not guilty to the indictment. Shortly after Lynch was
indicted, S.P. died.
{¶6} Lynch’s counsel filed a motion to withdraw on July 2, 2014. The trial court
granted counsel’s motion, and the court assigned a new attorney to represent Lynch on July 9,
2014.
{¶7} On October 31, 2014, Lynch’s counsel filed motions for independent DNA analysis
and to dismiss the indictment based on preindictment delay. Lynch’s counsel filed a
supplemental motion to dismiss based on preindictment delay on November 17, 2014. On
February 12, 2015, the trial court denied defense counsel’s motion to dismiss.
{¶8} On August 5, 2015, Lynch’s counsel filed a motion for reconsideration of the motion
to dismiss for preindictment delay. The trial court denied defense counsel’s motion for
reconsideration on October 2, 2015.
{¶9} On February 2, 2016, Lynch’s counsel filed a second supplemental motion to
dismiss based on preindictment delay. On February 12, 2016, the trial court denied defense
counsel’s motion to dismiss.
{¶10} A jury trial commenced on March 7, 2016. On March 10, 2016, the trial court
declared a mistrial based on an issue that arose with one of the 12 jurors. On March 11, 2016,
Lynch’s second attorney filed a motion to withdraw as counsel. The trial court granted
counsel’s motion, and the court assigned a new attorney to represent Lynch on March 17, 2016.
{¶11} On September 9, 2016, Lynch’s counsel filed a motion to reconsider the defense’s
previous motions to dismiss based on preindictment delay. After holding a hearing, the trial
court denied the motion to reconsider on September 13, 2016.
{¶12} A second jury trial commenced on September 15, 2016. At the close of trial, the
jury found Lynch guilty on all three counts on September 20, 2016. The trial court referred
Lynch to the probation department for a presentence investigation report and set the matter for
sentencing.
{¶13} The trial court held a sentencing hearing on October 20, 2016. The trial court
merged Counts 1 and 3 for sentencing purposes. The state elected to sentence Lynch on Count
1. The trial court imposed a prison term of 15 years to life on Count 1, and a prison term of 15
years to life on Count 2. The trial court ordered the counts to run concurrently. The trial court
found Lynch to be a sexually oriented offender and reviewed his reporting requirements.
{¶14} On November 1, 2016, Lynch filed the instant appeal challenging his convictions.
He assigns four errors for review, which we will address out of order for ease of discussion:
I. [Lynch’s] rights to due process and a fair trial were violated when the trial court
denied his motion to dismiss for pre-indictment delay and then denied his motion
to reconsider that ruling.
II. Prosecutorial misconduct encouraging the jury to convict based on sympathy
for M.H. violated [Lynch’s] constitutional rights to a fair trial and due process and
to be convicted based only on the evidence against him.
III. Counsel provided constitutionally ineffective assistance when he failed to
object to the prosecutor’s improper argument as set forth in the [s]econd
[a]ssignment of [e]rror.
IV. Because there was no manifest necessity for the trial court to grant a
mistrial, the constitutional protection against being twice put in jeopardy for the
same offense required that the charges against [Lynch] be dismissed.
II. Law and Analysis
A. Preindictment Delay
{¶15} In his first assignment of error, Lynch argues that the trial court erred by denying
his motions to dismiss the indictment based on preindictment delay.
{¶16} The statute of limitations for a criminal offense is a defendant’s primary protection
against overly stale criminal charges. U.S. v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30
L.Ed.2d 468 (1971). However, in some circumstances, the Due Process Clause of the Fifth
Amendment provides limited protection against preindictment delay. U.S. v. Lovasco, 431 U.S.
783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The Ohio Supreme Court has held that “[a]n
unjustifiable delay between the commission of an offense and a defendant’s indictment
therefor[e], which results in actual prejudice to the defendant, is a violation of the right to due
process of law.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of
the syllabus.
{¶17} The Ohio Supreme Court recently reaffirmed a two-part, burden-shifting test to
determine whether preindictment delay constitutes a due process violation. State v. Jones, 148
Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13 (“Jones I”). First, the burden is on the
defendant to present evidence of actual prejudice; once a defendant does so, the burden then
shifts to the state to produce evidence of a justifiable reason for the delay. Id. at ¶ 13, citing
State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). “A court must determine
whether the defendant has established actual prejudice to his ability to defend himself before
independently determining whether the state met its burden of establishing a justifiable reason for
the delay in bringing charges.” State v. Hunter, 8th Dist. Cuyahoga No. 104789,
2017-Ohio-4180, ¶ 11, citing Jones I at ¶ 16-18, 29.
A determination of actual prejudice involves “‘a delicate judgment’” and a
case-by-case consideration of the particular circumstances. State v. Walls, 96
Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting [Marion at 325].
A 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.” Id. [The Ohio
Supreme Court] has suggested that speculative prejudice does not satisfy the
defendant’s burden. Id. at ¶ 56 (noting that Walls’s claims of prejudice were
speculative at best); [State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45
N.E.3d 127, ¶ 100] (noting the difficulty for defendants claiming unconstitutional
preindictment delay because “proof of prejudice is always speculative”).
The “possibility that memories will fade, witnesses will become inaccessible, or
evidence will be lost is not sufficient to establish actual prejudice.” (Emphasis
[sic].) Id. at ¶ 105, citing Marion at 325-326. Those are “the real possibilit[ies]
of prejudice inherent in any extended delay,” and statutes of limitations
sufficiently protect against them. Marion at 326. That does not mean,
however, that demonstrably faded memories and actually unavailable witnesses or
lost evidence cannot satisfy the actual-prejudice requirement.
Jones I at ¶ 20-21.
{¶18} In the instant matter, during the trial court’s September 13, 2016 hearing on
appellant’s motion to reconsider, defense counsel argued that Lynch suffered actual prejudice as
a result of the significant delay in prosecution. Specifically, defense counsel explained that “the
main reason for the actual prejudice [is] the death of [S.P.] * * * she made statements at the time
of the incident letting at least hospital personnel know as well as police that she did not believe
[M.H.] was telling the truth.” (Tr. 581.) Defense counsel further asserted that the state was
unable to show that the delay in prosecution was reasonable. The state argued that S.P.’s
unavailable testimony would not be exculpatory due to the DNA evidence linking Lynch to
M.H.’s rape kit. The state explained that the police ceased the active investigation in 1994
because M.H. recanted her allegations against Lynch, and that the case was reopened when the
prosecution received the new DNA evidence linking Lynch to the rape kit.
{¶19} The trial court indicated that it reviewed the case law set forth in Jones I, State v.
Jones, 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176 (“Jones II”), Luck, 15 Ohio St.3d 150,
472 N.E.2d 1097, and Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199. In denying defense
counsel’s motion to reconsider, the trial court found the facts of this case to be distinguishable
from Jones II. The trial court concluded, “I’m not convinced that actual prejudice has occurred
from the delay. Even if we get to, you know, the point of actual prejudice in this case. In
looking at it when the burden shifts to the State to show that it was not unjustifiable, you know,
based on the facts here, I do find that a delay was justifiable anyway.” (Tr. 596-597.)
{¶20} In reviewing a trial court’s decision on a motion to dismiss for preindictment delay,
this court applies a de novo standard of review to the legal issues, but we afford great deference
to the trial court’s findings of fact. Hunter, 8th Dist. Cuyahoga No. 104789, 2017-Ohio-4180,
at ¶ 16, citing State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, and State v.
Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 45.
{¶21} In the instant matter, Lynch argues that he was prejudiced by the preindictment
delay because S.P. passed away and, thus, was not available to testify; CCDCFS records were
lost; and information regarding the rape kit’s chain of custody was lost.
{¶22} First, regarding S.P.’s lost testimony, Lynch asserts that (1) S.P. knew that M.H.’s
allegations could not be true; (2) S.P. told the hospital personnel that Lynch was in bed with her
at the time that M.H. alleged he raped her; and (3) S.P. opined that M.H. likely made up the
allegations because she did not want Lynch to marry her.
{¶23} Second, regarding the lost CCDCFS records, Lynch argues that there are no records
of the investigation or notes from the interviews conducted by CCDCFS investigators. The
only CCDCFS record available is an incident report indicating that M.H.’s allegation was
unsubstantiated. Lynch asserts that these notes and records “would contain further information
tending to throw doubt on M.H.’s claims.” Appellant’s brief at 5.
{¶24} Third, regarding the lost chain of custody information, Lynch argues that there is
no information about how the rape kit was stored by the Cleveland Police Department in the
Fourth District’s property room or how it was transported to the main property room downtown.
He contends that this information is important because there was not a complete DNA profile
extracted from the semen from M.H.’s vagina in the rape kit.
{¶25} After reviewing the record, we find that Lynch fails to demonstrate actual
prejudice. Although Lynch offered an explanation of what purportedly exculpatory testimony
S.P. would have offered, the unavailable testimony must be balanced against the evidence at the
time of the indictment to determine whether Lynch would suffer actual prejudice. Jones II, 8th
Dist. Cuyahoga No. 101258, 2017-Ohio-176, at ¶ 6, citing Jones I, 148 Ohio St.3d 167,
2016-Ohio-5105, 69 N.E.3d 688, at ¶ 24.
{¶26} As noted above, the DNA evidence available at the time of the indictment revealed
that Lynch could not be excluded as the source of semen on the vaginal swab from M.H.’s rape
kit. We cannot say that S.P.’s testimony that the allegations against Lynch could not be true
would minimize or eliminate the impact of the DNA evidence and bolster the defense.
Furthermore, Lynch fails to demonstrate actual prejudice by speculating that he could have
asserted an alibi based on S.P.’s testimony that he was in bed with her at the time M.H. alleged
that he raped her.
{¶27} Although S.P. was not available to testify at trial, Lynch acknowledges that “[w]e
know much of what [S.P.] would have testified to from her statements as they appear in [M.H.’s]
medical record from the hospital at the time they took the rape kit.” Appellant’s brief at 4.
Regarding S.P.’s unavailable testimony about M.H.’s motive for fabricating the allegations, the
record reflects that Lynch was available to testify, and did, in fact, testify about any motives M.H.
may have had for fabricating the allegations. Lynch testified that S.P.’s children did not care for
him, did not want him in the home, and wanted S.P. to be with their father rather than Lynch.
Accordingly, S.P.’s testimony on this point would have been cumulative to Lynch’s testimony.
{¶28} Lynch’s claim of prejudice regarding the loss of CCDCFS records or notes is
speculative at best. He presumes that the CCDCFS investigators took notes during the
interviews of M.H. and Lynch, and retained these notes in the case file. As noted above, M.H.
recanted her allegations against Lynch approximately two weeks after the May 26, 1994 incident.
Lynch asserts that the missing CCDCFS records “would provide a concrete explanation of why
there was no basis for the prosecution.” Appellant’s reply brief at 5. Lynch presumes that the
CCDCFS records or notes contained a “concrete explanation” — other than the fact that M.H.
recanted — as to why the allegations were found to be unsubstantiated.
{¶29} Lynch’s claim of prejudice regarding the loss of chain of custody information is
also speculative. There is no evidence that the information regarding the storage conditions at
the Fourth District or how the rape kit was transported to the main property room was initially
preserved but subsequently lost as a result of the delay. The missing information may be
evidence of an incomplete chain of custody; however, this defense would have existed regardless
of the passage of time. See Jones II, 8th Dist. Cuyahoga No. 101258, 2017-Ohio-176, at ¶ 9.
Furthermore, several witnesses — BCI forensic scientist Andrea Dennis, Cleveland Police
Officer Alex Parente, BCI forensic scientist Marissa Keeley, Cleveland Police Detective Michael
Moctezuma, and Cuyahoga County Prosecutor’s Office Investigator Timothy Clark — were
available to testify regarding the rape kit’s collection, sealing, storage, and transportation.
{¶30} Assuming, arguendo, that Lynch sufficiently demonstrated actual prejudice, we
find that the trial court properly determined that the delay in prosecution was justified.
{¶31} Lynch argues that the state’s delay in bringing the charges against him was not
justifiable because M.H. identified Lynch as her rapist both to S.P. and the police, and the police
and prosecution allowed the rape kit to sit untested for 18 years. We disagree.
{¶32} The record reflects that the delay was a result of M.H. recanting her rape allegation
approximately two weeks after reporting the allegation to her mother and the police in May 1994.
Although a rape kit was conducted at the time of the incident, DNA evidence was not
discovered until 2014 when the rape kit was tested by BCI. The DNA evidence establishing
that Lynch could not be excluded as a contributor to the DNA profile from M.H.’s rape kit was
“new evidence” that justified the delayed indictment.
{¶33} Based on the foregoing analysis, Lynch’s first assignment of error is overruled.
B. Prosecutorial Misconduct
{¶34} In his second assignment of error, Lynch argues that he was deprived of his
constitutional rights to a fair trial and due process when the prosecutor engaged in misconduct
during closing arguments.
{¶35} Closing arguments must be viewed in their entirety to determine whether the
disputed remarks were prejudicial. State v. Mann, 93 Ohio App.3d 301, 312, 638 N.E.2d 585
(8th Dist.1993). An appellant is only entitled to a new trial when a prosecutor asks improper
questions or makes improper remarks and those questions or remarks substantially prejudiced
appellant. State v. Pate, 8th Dist. Cuyahoga No. 95382, 2011-Ohio-1692, ¶ 19, citing State v.
Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984).
{¶36} A prosecutor has a duty in closing argument to avoid efforts to obtain a conviction
by going beyond the evidence before the jury. Smith at 14. “Prosecutors must avoid
insinuations and assertions calculated to mislead. They may not express their personal beliefs
or opinions regarding the guilt of the accused, and they may not allude to matters not supported
by admissible evidence.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990).
However, “‘[i]n the tension and turmoil of a trial, both the prosecution and the defense have wide
latitude in summation as to what the evidence has shown and what reasonable inferences may be
drawn therefrom.’” Id. at 165, quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773
(1970). See also State v. Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996) (the prosecutor is
entitled to some latitude in closing argument as to what the evidence presented has shown).
{¶37} The test for prosecutorial misconduct is whether the prosecutor’s remarks were
improper and, if so, whether they prejudicially affected substantial rights of the accused. State
v. Smith, 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000), citing Smith, 14 Ohio St.3d at 14, 470
N.E.2d 883. The touchstone of analysis “is the fairness of the trial, not the culpability of the
prosecutor.” Id., citing Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982).
{¶38} In the instant matter, Lynch takes issue with the prosecutor’s comments about the
rape kit examination procedure that M.H. went through at the hospital after disclosing the
allegations against Lynch to her mother. During closing arguments, the prosecutor stated, in
relevant part,
Now, let’s talk about what happened to [M.H.] as a result of her disclosing what
[Lynch] did to her.
When she said what he did, when she said what he did, this is what happened to
her. She had to go to the hospital. As a 12-year-old girl, she had to have her
legs up in stirrups with her knees apart, a speculum inserted into her vagina,
swabs stuck five to six centimeters into her vagina, swabbing her vagina, and
swabbing her cervix. That’s what happened as a result of [M.H.] telling her
mom what [Lynch] did to her.
(Tr. 1284.) The prosecutor continued, “[a]t the hospital [M.H.] says who did this to her.
Cornelius Lynch. And [Dr. Keith Lim] puts her in the stirrups, and he has her spread her legs.
He has to insert a speculum into a child, all things [M.H.] had to endure for telling people what
[Lynch] did to her[.]” (Tr. 1287.)
{¶39} Lynch argues that “[t]here was no proper reason, no justification for [the
prosecutor’s] gratuitous statements to the jury. [The statements’] purpose, their only purpose,
was to inflame, to prejudice, to create sympathy for M.H. And that is an improper purpose.”
Appellant’s brief at 8. We disagree.
{¶40} Initially, we note that defense counsel did not object to the prosecutor’s statements
about the rape kit examination procedure. Accordingly, Lynch has waived the issue on appeal
except for plain error. Pate, 8th Dist. Cuyahoga No. 95382, 2011-Ohio-1692, at ¶ 21, citing
State v. Owens, 51 Ohio App.2d 132, 146, 366 N.E.2d 1367 (9th Dist.1975). Accord State v.
Harris, 8th Dist. Cuyahoga No. 104329, 2017-Ohio-2751, ¶ 83. Under Crim.R. 52(B), “[p]lain
errors or defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” Moreover, “[p]lain error does not exist unless, but for the error, the
outcome at trial would have been different.” State v. Joseph, 73 Ohio St.3d 450, 455, 653
N.E.2d 285 (1995), citing State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).
{¶41} One of the defense’s theories of the case was that M.H. made up the allegations
against Lynch because she did not want her mother to marry him. On direct examination,
Lynch testified that there was stress and tension in the home, both before and after M.H. alleged
that he raped her. He explained that S.P.’s children did not care for him, did not want him in
the home, and wanted S.P. to be with their father. During closing arguments, defense counsel
stated that when S.P. took M.H. to the hospital, S.P. told the doctors that she was sure that M.H.
made up the allegations against Lynch “because [her children] want [S.P.] to get back with their
natural father[.]” (Tr. 1304-1305.) Defense counsel further explained that while S.P. was
going to marry Lynch, her children did not want him around and wanted him out of the house.
{¶42} After reviewing the record and the purportedly improper remarks in context, we
cannot say that prosecution’s comments about the rape kit examination procedure were improper.
The prosecutor’s comments about the rape kit examination procedure were made to rebut the
defense’s theory that M.H. fabricated the allegations and to support the prosecution’s theory that
Lynch did, in fact, rape M.H. Furthermore, the prosecutor’s comments were supported by
evidence in the record.
{¶43} M.H. testified that her mother took her to the hospital where an examination was
performed “[i]n [her] vagina area.” (Tr. 1066.) Dr. Lim testified that he conducted M.H.’s
rape kit examination and he described the procedure in detail. Based on this evidence, the
prosecutor reasonably inferred that M.H. would not assent to or endure an invasive rape kit
examination if she made up the allegations. The prosecutor’s comments fairly represented the
state’s interpretation of the evidence that it presented during trial, and the prosecutor is entitled to
latitude to argue the state’s interpretation of the evidence. See State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 172.
{¶44} Finally, the trial court instructed the jury that it must decide the case based on the
evidence presented and that “closing arguments do not constitute evidence.” (Tr. 1322.) We
presume that the jury heeded the trial court’s instructions. State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 157.
{¶45} Based on the foregoing analysis, Lynch’s second assignment of error is overruled.
C. Double Jeopardy
{¶46} In his fourth assignment of error, Lynch argues that the charges against him should
have been dismissed because there was not a manifest necessity for declaring a mistrial in the
first prosecution.
{¶47} While the jury was deliberating in the first trial, the trial court received a note from
the foreperson that indicated an issue arose with one of the jurors. Specifically, the note
indicated that Juror 7 was “exhibiting very serious signs of mental or emotional problems. He
will not let anyone else speak, constantly interrupts, makes threats, slurring his words and
admitted, ‘I’m having problem with my head.’ Also he demands the transcripts.” (Tr. 513.)
The trial court shared the note with the parties and made it a part of the record. The trial court
had already excused the alternate juror at the time it received the note. The trial court
questioned the foreperson to learn more about the issue and to determine whether the issue had
been resolved.
{¶48} The foreperson stated that Juror 7 was interrupting other jurors and not letting
anybody speak. (Tr. 516.) The foreperson further explained that Juror 7 also made threats to
both the jury as a whole and to specific individual jurors, was slurring his words and incoherent,
and engaging in other disruptive conduct. (Tr. 516.) The foreperson stated that two of the
jurors indicated that they do not feel safe in the deliberation room with Juror 7. (Tr. 517.)
Juror 7 was adamant about using the notes he took throughout the trial although the trial court
instructed the jurors not to do so.
{¶49} The trial court questioned Juror 7 about these issues. Furthermore, the trial court
questioned the individual jurors separately about the issue.
{¶50} After polling the individual jurors, the trial court concluded that Juror 7 “is unable
to follow the instructions given by the Court, is unable to live up to his oath as a juror. And I
don’t think that leaving this juror on that jury, that they can come to a fair and just resolution in
this case.” (Tr. 571.) Before deciding whether to declare a mistrial, the trial court attempted
to contact the alternate juror that had been previously discharged. The trial court was unable to
reach the alternate juror, and as a result, declared a mistrial.
{¶51} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, protects a
criminal defendant from multiple prosecutions for the same offense. Oregon v. Kennedy, 456
U.S. 667, 671, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The Double Jeopardy Clause does not,
however, bar reprosecution in every case. Where a defendant requests a mistrial, double
jeopardy does not bar a retrial unless the defendant’s request for a mistrial is precipitated by
prosecutorial misconduct intended to provoke a defendant into seeking a mistrial. N. Olmsted v.
Himes, 8th Dist. Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 36-37.
{¶52} In the instant matter, we initially find no merit to Lynch’s assertion that he
explicitly objected to the trial court declaring a mistrial. In fact, the record reflects that defense
counsel requested a mistrial after the foreperson informed the trial court about the issues that
arose with Juror 7: “Your Honor, I would — I think we’re in a position now — with the
alternate being excused yesterday, I think we’re in the same position we would be in with a hung
jury, and I would request a mistrial[.]” (Tr. 518.) Defense counsel reiterated this request
while the trial court was polling the individual jurors about these issues: “Your Honor, we’re
asking for a mistrial.” (Tr. 552.)
{¶53} Lynch appeared to disagree with defense counsel’s request for a mistrial. When
counsel stated that the defense was asking for a mistrial, Lynch asserted, “[n]o, no, we’re not.”
(Tr. 553.) In his appellate brief, Lynch appears to suggest that this statement demonstrates that
he wanted to proceed with 11 jurors.
{¶54} It is well established that “although a defendant has the right to counsel or the right
to act pro se, a defendant does not have any right to ‘hybrid representation.’” State v. Mongo,
8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139, ¶ 13, quoting State v. Martin, 103 Ohio St.3d
385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 29. This court has explained,“when counsel
represents a criminal defendant, a trial court may not entertain a defendant’s pro se motion.”
Mongo at ¶ 14.
{¶55} Lynch was represented by counsel in the first prosecution, and thus, the trial court
could not entertain Lynch’s pro se objection to granting a mistrial. Furthermore, when the trial
court declared a mistrial, neither defense counsel nor Lynch objected. Lynch does not argue nor
does the record indicate that the state invited a mistrial. Accordingly, the Double Jeopardy
Clause does not bar a second prosecution.
{¶56} Assuming, arguendo, that Lynch objected to a mistrial, the record reflects that a
manifest necessity existed for the mistrial.
Where a defendant objects to a mistrial, the defendant may be retried if “manifest
necessity” exists for the mistrial, State v. Gunnell, 132 Ohio St.3d 442,
2012-Ohio-3236, 973 N.E.2d 243, ¶ 25, or if “‘the ends of public justice would
otherwise be defeated.’” State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900,
quoting State v. Widner, 68 Ohio St.2d 188, 189, 429 N.E.2d 1065 (1981), citing
[Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)].
“Manifest necessity” means a “high degree” of necessity must exist before a
mistrial may properly be declared. However, it does not require a showing that a
mistrial was “absolutely necessary” or that there was no other alternative but to
declare a mistrial. Washington at 511.
There is no “mechanical formula” for determining what constitutes a “manifest
necessity” for a mistrial: “[T]he manifest-necessity standard ‘abjures the
application of any mechanical formula by which to judge the propriety of
declaring a mistrial in the varying and often unique situations arising during the
course of a criminal trial.’” [Gunnell at ¶ 27], quoting Illinois v. Somerville, 410
U.S. 458, 462, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). What constitutes a
manifest necessity for a mistrial is, therefore, left to the discretion of the trial court
to be decided on a case-by-case basis, taking into account all the relevant
circumstances.
State v. Marshall, 2014-Ohio-4677, 22 N.E.3d 207, ¶ 21-22 (8th Dist.).
{¶57} Lynch argues that there was no manifest necessity for the trial court to declare a
mistrial. In support of his argument, Lynch suggests that although the alternate juror had been
discharged, the alternate could have been brought back. Lynch asserts that the trial court failed
to investigate the possibility of bringing back the alternate. These arguments are unsupported
by the record.
{¶58} The record reflects that the trial court made multiple attempts to reach the alternate
juror. The jury commissioner attempted to contact the alternate juror, left the alternate a
voicemail, and told the alternate to return the phone call. (Tr. 520.) Before declaring a
mistrial, the trial court stated, “I would like to see if the alternate is available,” and “I’m going to
* * * see if we can get ahold of the alternate, if the alternate is available.” (Tr. 530, 566.)
When the trial court declared a mistrial, it explained, “we don’t have the alternate here to replace
[Juror 7] with an alternate. It’s my understanding the alternate was discharged from jury service
yesterday after the Court had let the alternate go from this trial, prior to this jury’s deliberations.”
(Tr. 571.)
{¶59} After review, we find that the trial court acted reasonably in determining that a
manifest necessity existed for the declaration of a mistrial. The record reflects that the trial
court exercised sound discretion in determining that Juror 7 was unable to follow the court’s
instructions and perform his duty. After learning about the issues that arose with Juror 7, the
trial court conducted a thorough inquiry, questioning the foreperson, Juror 7, and each juror
separately. The trial court permitted defense counsel and the prosecution to question the jurors
as well. Furthermore, before deciding to discharge Juror 7 or declare a mistrial, the trial court
made multiple attempts to reach the alternate juror. The trial court only declared a mistrial after
determining that (1) the jury would not be able to reach a fair and just resolution in the case with
Juror 7 on the panel and (2) the alternate juror could not be reached. Accordingly, the trial court
did not abuse its discretion by determining that there was a manifest necessity to declare a
mistrial.
{¶60} Finally, Lynch cites State v. Davis, 8th Dist. Cuyahoga No. 91324,
2009-Ohio-5217, for the proposition that the case could have and should have gone forward with
11 jurors rather than the trial court declaring a mistrial. In Davis, both the defendant and the
state consented to proceeding with an 11-person jury. Id. at ¶ 17. In this case, neither Lynch
nor the state requested or consented to proceeding with 11 jurors. Accordingly, Lynch’s
reliance on Davis is misplaced.
{¶61} Based on the foregoing analysis, Lynch’s fourth assignment of error is overruled.
D. Ineffective Assistance of Counsel
{¶62} In his third assignment of error, Lynch argues that his trial counsel provided
ineffective assistance.
{¶63} In order to establish a claim of ineffective assistance of counsel, appellant must
prove (1) his counsel was deficient in some aspect of his representation, and (2) there is a
reasonable probability that, were it not for counsel’s errors, the result of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In
Ohio, every properly licensed attorney is presumed to be competent and, thus, a defendant
claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio
St.3d 98, 100, 477 N.E.2d 1128 (1985). In determining whether the defendant has been denied
the effective assistance of counsel, the test is “whether the accused, under all the circumstances,
* * * had a fair trial and substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341
N.E.2d 304 (1976), paragraph four of the syllabus.
{¶64} In the instant matter, Lynch first argues that counsel provided ineffective assistance
by failing to object to the prosecutor’s comments during closing arguments about the rape kit
examination procedure. Based on our resolution of Lynch’s second assignment of error, we
cannot say that counsel provided ineffective assistance by failing to object to the prosecutor’s
comments about the rape kit examination. Having found that the prosecutor’s comments were
not improper, we cannot say that counsel’s failure to object to the comments prejudiced Lynch.
See State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 157;
State v. Hill, 8th Dist. Cuyahoga No. 95379, 2011-Ohio-2523, ¶ 42.
{¶65} Lynch further argues that counsel provided ineffective assistance by failing to
move to dismiss the case on double jeopardy grounds after the first prosecution was declared a
mistrial. Based on our resolution of Lynch’s fourth assignment of error, we cannot say that
counsel provided ineffective assistance by failing to move for a dismissal on double jeopardy
grounds. As noted above, when the issues arose with Juror 7, defense counsel requested that
the trial court declare a mistrial. There is nothing in the record indicating that the state invited
the mistrial. Furthermore, the trial court did not abuse its discretion in determining that there
was a manifest necessity to declare a mistrial. The trial court determined that Juror 7 was
unable to follow the court’s instructions and perform his duty, and the court was unable to
replace Juror 7 with an alternate juror.
{¶66} Based on the foregoing analysis, Lynch’s third assignment of error is overruled.
III. Conclusion
{¶67} After thoroughly reviewing the record, we find that the trial court did not err in
denying Lynch’s motions to dismiss for preindictment delay; the prosecutor did not commit
misconduct during closing arguments; the trial court did not abuse its discretion by determining
that there was a manifest necessity to declare a mistrial, and the second prosecution was not
barred by the Double Jeopardy Clause; and Lynch was not denied his constitutional right to
effective assistance of counsel.
{¶68} Judgment affirmed.
It is ordered that appellee recover from appellant 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 this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
KATHLEEN ANN KEOUGH, P.J., and
LARRY A. JONES, SR., J., CONCUR