State v. Porter

[Cite as State v. Porter, 2021-Ohio-2539.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-01

v.

MICHAEL J. PORTER, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court
Trial Court No. CR2020 0081

Judgment Affirmed

Date of Decision: July 26, 2021

APPEARANCES:

Thomas J. Lucente, Jr. for Appellant

Jana E. Emerick for Appellee
Case No. 1-21-01

MILLER, J.

{¶1} Defendant-appellant, Michael J. Porter, appeals his conviction in the

Allen County Court of Common Pleas for multiple offenses of possessing child

pornography. On appeal, Porter contends the trial court erred by not dismissing the

indictment filed against him on the basis of preindictment delay on the part of the

State. We find no error by the trial court and affirm its decision. Our reasoning is

set forth below.

Background

{¶2} On March 12, 2020, the Allen County Grand Jury issued an indictment

charging Porter with ten violations of R.C. 2907.322(A)(1), pandering sexually

oriented matter involving a minor, each count charged as a felony of the second

degree. An additional ten counts alleged violations of R.C. 2907.323(A)(3), illegal

use of a minor in a nudity-oriented material or performance. Each of these counts

contained an allegation that Porter had a prior conviction for the same offense,

elevating the seriousness of each offense to a fourth-degree felony. The indictment

alleged each of the twenty offenses occurred on or about December 5, 2017.

According to the bill of particulars filed by the State, the first ten counts of the

indictment relate to Porter locating images of child pornography on the internet and

downloading them to a cellular phone. The remaining ten counts relate to Porter

possessing material on the same cellular phone that showed a minor in a state of

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nudity. All of the offenses occurred while Porter was an inmate with the Ohio

Department of Rehabilitation and Correction incarcerated in the Allen-Oakwood

Correctional Institution.

{¶3} Porter initially entered pleas of not guilty to the charges and the matter

proceeded to an exchange of discovery and various pre-trial hearings. On May 15,

2020, Porter filed a motion to dismiss the indictment alleging “inexcusable

preindictment delay” by the State. In his motion, Porter alleged various facts that

were not previously contained in the record and were presumably derived from the

State’s discovery response.1 On July 30, 2020, the motion came on for a hearing.

After discussing the matter in chambers, neither Porter nor the State presented any

testimony, evidence or stipulations of fact. Instead, Porter submitted the matter to

the court for consideration based only on his written motion. The State was afforded

an opportunity to submit a written argument after which Porter could submit a reply.

The State filed its written argument on August 6, 2020. Porter did not file a

response. In a well-reasoned opinion filed on September 1, 2020, the trial court

denied the motion finding Porter failed to demonstrate that he suffered any actual

prejudice by the State’s 28-month delay in obtaining the indictment.

{¶4} The case was scheduled for a trial to the court on October 23, 2020. On

the day of trial, after opening statements by counsel and just prior to the

1
The State filed its discovery response on April 2, 2020, which indicates multiple items were provided in
“eDiscovery.” These items, however, were not made a part of the record on appeal.

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commencement of testimony, Porter decided to waive his right to a trial and enter

pleas of no contest to all twenty counts of the indictment. In exchange for his pleas,

the State agreed to make no specific sentencing recommendation. The trial court

accepted Porter’s pleas, found him guilty of the offenses and continued the matter

for sentencing after the preparation of a presentence investigation report.

{¶5} On December 9, 2020, the trial court sentenced Porter to serve an

aggregate 21-year prison term and classified him as a Tier II Sex Offender. The

court journalized its sentencing orders the next day. It is from this judgment that

Porter filed a notice of appeal.

Assignment of Error

The trial court erred in denying appellant’s motion for dismissal
based on pre-indictment delay.

{¶6} Porter presents the same arguments on appeal as he did before the trial

court. He contends his due process rights under both the United States Constitution

and the constitution of the State of Ohio were violated by the State waiting almost

two and one-half years from December 5, 2017, the time the cell phone was

confiscated by prison officials, until March 12, 2020, to file the indictment. Porter

claims this delay by the State was unjustified and caused him to suffer actual

prejudice and an inability to defend against the accusations. In support of this claim,

Porter postulates that the transient nature of inmates being conveyed into and out of

the prison made it impossible to identify other users and the actual owner of the

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phone. He contends it was impossible to determine whom he could call as a witness

and, even if witnesses could be located to aid his defense, the witness’s memory

would have faded along with the hope for exculpatory testimony at trial.

Standard of Review & Relevant Law

{¶7} When considering a decision on a motion to dismiss an indictment for

preindictment delay, the reviewing court must afford great deference to the trial

court’s factual findings while examining legal issues de novo. State v. Buis, 2d Dist.

Montgomery No. 27778, 2018-Ohio-1727, ¶ 10. See also State v. Hines, 3d Dist.

Marion No. 9-19-07, 2019-Ohio-5039, ¶ 16.

{¶8} The Sixth Amendment to the United States Constitution guarantees

every person charged with a crime the right to a speedy trial. The Sixth Amendment,

however, relates only to the time between a person being charged with an offense

and the time the individual is brought to trial. In a seminal case on this topic, the

Supreme Court of Ohio stated:

The Sixth Amendment to the United States Constitution guarantees
the accused in a criminal prosecution “the right to a speedy and public
trial.” But on its face, the Sixth Amendment provides no protection
to those who have not yet been accused; it does not “require the
Government to discover, investigate, and accuse any person within
any particular period of time.” United States v. Marion, 404 U.S. 307,
313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Statutes of limitations
provide the ultimate time limit within which the government must
prosecute a defendant—a definite point “beyond which there is an
irrebuttable presumption that a defendant’s right to a fair trial would
be prejudiced.” Id. at 322. See also United States v. Lovasco, 431
U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (stating that

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statutes of limitations provide predictable limits to prevent initiation
of overly stale charges). But when unjustifiable preindictment delay
causes actual prejudice to a defendant’s right to a fair trial despite the
state’s initiation of prosecution within the statutorily defined
limitations period, the Due Process Clause affords the defendant
additional protection. Id.

State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, ¶ 11.

{¶9} In Jones, the Supreme Court of Ohio reaffirmed its firmly established

“burden-shifting framework for analyzing a due-process claim based on

preindictment 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, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998) and State

v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 99.

{¶10} Preindictment delay violates due process only when it is unjustifiable

and causes actual prejudice. Jones at ¶ 12, citing State v. Luck, 15 Ohio St.3d 150

(1984), paragraph two of the syllabus. “Unlike a Sixth Amendment speedy-trial

claim, no presumption of prejudice arises in the due-process context when a

preindictment delay exceeds a particular length of time.” Adams at ¶ 98, citing

United States v. Schaffer, 586 F.3d 414, 425 (6th Cir.2009). Unjustifiable delay

does not violate due process unless it results in actual prejudice. Jones at ¶ 16. “The

key is determining whether actual prejudice resulted from the delay.” State v.

Dodson, 3d Dist. Seneca No. 13-10-47, 2012-Ohio-5576, ¶ 6.

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{¶11} “Actual prejudice exists when missing evidence or unavailable

testimony, identified by the defendant and relevant to the defense, would minimize

or eliminate the impact of the state’s evidence and bolster the defense.” Jones, 148

Ohio St.3d 167, 2016-Ohio-5105, at ¶ 28, citing Luck at 157-158. “‘Proof of actual

prejudice to the defendant must be specific and non-speculative; the defendant bears

the burden of demonstrating the exculpatory value of the evidence of which he was

deprived due to the delay.’” State v. Mapp, 3d Dist. Union No. 14-10-34, 2011-

Ohio-4468, ¶ 42, quoting State v. Tullis, 10th Dist. Franklin No. 04AP–333, 2005-

Ohio-2205, ¶ 14.

{¶12} To determine the existence of actual prejudice, a reviewing court must

employ “‘“a delicate judgment”’ and a case-by-case consideration of the particular

circumstances.” Jones at ¶ 20, quoting State v. Walls, 96 Ohio St.3d 437, 2002-

Ohio-5059, ¶ 52. “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., quoting Walls at ¶ 52.

{¶13} If the defendant demonstrates evidence of faded memories,

unavailable witnesses or lost evidence, he might satisfy the actual-prejudice

requirement. State v. Adkins, 6th Dist. Wood No. WD-16-042, 2018-Ohio-2588, ¶

13, citing Jones at ¶ 21. If the defendant successfully carries the burden of

establishing actual prejudice, then the State assumes the burden of producing

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evidence to justify the reason for the delay. Hines, 2019-Ohio-5039, at ¶ 15. The

first step in reviewing the assignment of error is to consider whether Porter

established the existence of actual prejudice. If Porter met his burden, then the

review shifts to the State to justify the reason for the delay.

Analysis

{¶14} Porter claims the 28-month delay from when the phone was

discovered in his cell until the State obtained an indictment prejudiced him because

witnesses would be harder to identify and locate. He surmises the contraband phone

may have been brought into the institution by a prison employee and passed among

the inmates before he gained possession. He contends there is no means of

identifying these inmates due to the delay. He further alleges the witnesses’

memories regarding the phone will have faded and exculpatory evidence may have

been lost.

{¶15} At the hearing on his motion to dismiss, Porter presented no evidence

to demonstrate his claimed inability to identify and locate potential defense

witnesses. There was no attempt to have officials from the Ohio Department of

Rehabilitation and Correction testify regarding the unavailability of current or

former inmates who may have been housed with Porter. Nor did Porter provide any

synopsis of the testimony he expected the unavailable witnesses to present at trial.

While Porter is not required to articulate specifically what the testimony of a missing

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witness would have been, he is required to provide an explanation of what

exculpatory testimony the witness might have offered. Jones, 148 Ohio St.3d 167,

2016-Ohio-5105, at ¶ 28, citing Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, at ¶

103.

{¶16} Further, Porter’s argument that the delay may have dimmed the

witnesses’ recollection of events is also unfounded. “The ‘possibility that memories

will fade, witnesses will become inaccessible, or evidence will be lost is not

sufficient to establish actual prejudice.’” (Emphasis sic.) Jones at ¶ 21, quoting

Adams at ¶ 105. “Those are ‘the real possibilit[ies] of prejudice inherent in any

extended delay,’ and statutes of limitations sufficiently protect against them.” Id.,

quoting Marion, 404 U.S. at 326. The absence of a potential witness resulting from

a lengthy preindictment period can constitute prejudice, but only if the defendant

can identify the exculpatory evidence that was lost and show that the exculpatory

evidence could not be obtained by other means. Adams at ¶ 103. Porter’s arguments

are speculative at best and speculation does not satisfy the defendant’s

burden. Jones at ¶ 20.

Conclusion

{¶17} Like the trial court, we conclude Porter has failed to demonstrate an

inability to identify potential witnesses or explain what exculpatory testimony they

might have offered and thus has not established actual prejudice. Consequently, the

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burden never shifted to the State to demonstrate the delay was justifiable. Porter’s

assignment of error is overruled.

{¶18} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Allen County Court

of Common Pleas.

Judgment Affirmed

WILLAMOWSKI, P.J., and SHAW, J., concur.

/jlr

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