[Cite as State v. Winkle,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 162 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) DANIEL WINKLE ) ) DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 12 CR 393

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellant: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellee: Atty. John B. Juhasz 7081 West Blvd., Suite 4 Youngstown, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: March 5, 2014 [Cite as State v. Winkle,

.] WAITE, J.

{¶1} The State of Ohio appeals the dismissal of rape and gross sexual

imposition charges filed against Appellee Daniel A. Winkle. In 2002, Appellee was

briefly investigated due to an accusation that he had sexually assaulted his daughter

R.W. sometime between 1994 and 1996. She would have been five or six years old

at the time. There was no physical evidence in this case, no scientific evidence such

as DNA analysis, and no independent witnesses corroborating the story. At some

point, the victim's mother reported that her daughter would no longer cooperate with

the investigation. Although the child herself was not questioned and there was

another suspect in the case who was never investigated, the case was closed due to

lack of evidence in 2003. It was reopened in 2012, when the victim stated that she

recently remembered Appellee talking to family members about the assault.

Appellee was indicted on multiple counts of rape and gross sexual imposition.

Appellee filed a motion to dismiss for preindictment delay and the motion was

granted, leading to this prosecutor’s appeal. The state argues that the trial judge

erred in dismissing the charges because Appellee was not prejudiced by the delay

and because there was new evidence supporting the delayed indictment.

{¶2} There are two primary issues involved when preindictment delay is

raised: whether the defendant was actually and substantially prejudiced by the delay

in prosecution, and whether the state had a justifiable reason to explain the delay in

prosecution. Depending on the reason given for the delay, the length of the delay

can also become a determining factor. In this case, Appellee proved to the trial court

that he was actually and substantially prejudiced by the delay due to the destruction -2-

or loss of many evidentiary records. These records would primarily be used to

undermine the victim's credibility and to provide an alibi. The state also failed to

present a justifiable reason for the delay. Although the state alleges that it has

recently procured a telephone confession, this supposed new evidence was not

produced at the dismissal hearing. The state also claimed it had new evidence of an

admission made by Appellee to his son in 2003, but this evidence cannot be treated

as new evidence and was also not produced at the hearing. Because the record

here reveals no new evidence, the nine-year delay in prosecution became a

determining factor. The trial court considered that the length of delay amounted to a

violation of Appellee's due process rights, and we agree. The state has not

established any precedent to support a finding of justifiable delay when the state

failed to investigate various aspects of the case, closed it due to the absence of

evidence, did nothing on the closed case for nine years and then, to justify the delay,

alleges the existence of new evidence without producing such evidence at the

hearing on the motion to dismiss. The trial court did not err in dismissing the

indictment, and the judgment of the trial court is affirmed.

Case History

{¶3} In 2002, R.W. was interviewed at the Child Advocacy Center regarding

alleged sexual assaults. The interview was recorded on video and Detective Cherry

Cappabianca of the Mahoning County Sheriff’s Department, who was assigned to

investigate the case, viewed the videotape. (Tr., p. 69.) The victim apparently

accused Appellee of sexually assaulting her at night, while her mother was away at

work, taking the child from her private bedroom to the marital bedroom on the second -3-

floor. Detective Cappabianca interviewed Appellee and the child's mother. Appellee

denied the sexual abuse allegations. The sexual assault examination of R.W. was

negative. Shortly thereafter, mother said that R.W. was “shutting down” and would

no longer talk about the events. Detective Cappabianca did not try to interview R.W.

personally, and did not investigate any other possible suspects, even though there

was a report that a neighbor boy may have been the attacker and even though the

basis for the sexual assault investigation was R.W.’s report that it had occurred. Due

to the absence of physical or DNA evidence and the lack of any witnesses, the

investigation was closed for lack of evidence in January of 2003. (Tr., pp. 72, 88.)

{¶4} In January, 2012, Detective Terry Martin of the Mahoning County

Sheriff’s Department received a call from Ms. Bilal, who was counseling R.W. at the

time. R.W. told her counselor that she remembered Appellee talking to his son in

March of 2003 about the attack. Detective Martin contacted the son, who apparently

told him about alleged admissions made by Appellee in 2003. The exact nature of

these admissions is not in the record. Based on this information, Detective Martin set

up a “cold call” between R.W. and Appellee that was recorded without Appellee’s

knowledge. Supposedly, Appellee discussed the assaults during that call. No

recording or transcript of the call is in the record. Appellee was then indicted on five

counts of rape and five counts of gross sexual imposition on April 19, 2012. The time

period of the alleged attacks was June 25, 1994, through June 25, 1996.

{¶5} On July 13, 2012, Appellee filed a motion to dismiss the charges on the

basis of preindictment delay. An evidentiary hearing was held on the motion on July

26, 2012. -4-

{¶6} Appellee testified that he attempted to locate many records relating to

the alleged time period of the attacks between 1994 and 1996. He was involved in

sleep apnea studies during that time period in which he was required to sleep on the

downstairs couch, which would contradict the victim’s allegation that the attacks took

place in the second floor marital bedroom. (Tr., p. 14.) These studies were

performed by Eastern Ohio Pulmonary Consultants (EOPC), and mother was an

independent contractor working for EOPC. Appellee was able to locate only one

record from EOPC indicating that he was involved in a sleep study in December of

1995. He found one record from a doctor, Dr. Politis, who interpreted an overnight

sleep study record from January, 1996. He also had a letter from Dr. Politis, dated in

2001, that referenced the sleep study. These are the only records he was able to

recover from EOPC or that related to the sleep study. (Tr., p. 21.)

{¶7} Appellee attempted to locate records from Northside Medical Center

about these sleep studies. Mother was actually the custodian of the Northside

Medical Center records. She could not find any records other than the documents

already discussed.

{¶8} Appellee tried to obtain records from Boardman Medical Supply

regarding a BiPAP breathing machine that was supplied for his sleep studies. The

dates that he used the breathing machine could have established the time period he

was sleeping on the couch rather than in the marital bedroom. Boardman Medical

Supply could not locate these records.

{¶9} Appellee contacted his former personal doctor, Dr. Might, for records of

his sleep studies or anything related to EOPC, but the doctor, who had retired, could -5-

not provide any records. Dr. Might’s records had been transferred to Dr. Shina, but

Dr. Shina also could not locate these records.

{¶10} Appellee searched for records verifying that mother was working the

day shift during that time period. Therefore, she would have been home at night

during the time of the alleged attacks, which would directly contradict the victim’s

allegations. He discovered that those records no longer exist. Youngstown

Osteopathic Hospital, where mother was formerly employed, had closed many years

ago. There were no longer work records from EOPC, itself.

{¶11} Appellee testified that he and the victim’s mother had kept family

calendars that contained information such as doctor appointments and work

schedules, but those calendars had been disposed of a few years ago. Appellee

testified that he had kept records of home renovations that would have shown when

a new bedroom had been built in their home. This evidence could contradict the

victim’s testimony that she was sleeping alone in her own bedroom when the attacks

happened, because Appellee believes that the girl shared a bedroom with her sister

and that the home renovation did not take place until sometime between 1997 and

1999, after the alleged time period of the attacks. The renovation records no longer

exist.

{¶12} Appellee also established that his own memory had dimmed

considerably over the years as to the events not only from 1994-1996, but also

regarding the brief investigation in 2002-2003.

{¶13} Mother testified that she was employed as a technologist of sleep

studies, and had worked both at Youngstown Osteopathic Hospital and as an -6-

independent contractor for EOPC. She had no records of her employment with

Youngstown Osteopathic Hospital. She could not remember if she performed sleep

studies at night while patients were sleeping, but her invoices from EOPC would

show her work hours. She could not find any of those invoices. She did not

remember which nights Appellee slept on the couch. She did not remember the

dates that Appellee used the BiPAP breathing machine. She remembered that for a

period of time her children slept on the second floor and Appellee slept on the first

floor couch, but not the exact dates. She remembered that her daughters shared a

bedroom until the house was renovated, but not the year when the house was

remodeled.

{¶14} Detective Cappabianca, who investigated the case in 2002-2003,

testified that some records and notes about the case no longer existed, but that there

might be other notes in the case file. (Tr., p. 76.) None of these notes or records

were produced at the hearing. The detective stated that in 2002, she was in charge

of investigating the allegations in this case. In September of 2002, she received a

referral from Children Services regarding R.W. The detective viewed a video of R.W.

made by Gloria Sanchez of Children Services. The detective then contacted

Appellee, and he came to her office for an interview. He denied the allegations.

Detective Cappabianca stated that there were no eyewitnesses, no DNA evidence,

and no other physical evidence. (Tr., p. 71.) The victim’s mother told the detective

that R.W. “was shutting down” and did not want to talk about the allegations any

longer. (Tr., p. 72.) There is no record of this conversation between Cappabianca

and the victim's mother. The detective made no effort to confirm the victim’s story or -7-

confirm that the child was shutting down or was no longer willing to cooperate with

the investigation. (Tr., p. 76.) The case was closed in January of 2003 due to lack of

evidence. (Tr., p. 72.)

{¶15} Detective Terry Martin testified that he spoke to R.W. in January, 2012.

This interview was not recorded. R.W. told him that she had learned that Appellee

had previously disclosed to other family members, including her brother, “that he did

these things to me”. (Tr., p. 79.) Martin reviewed the case file, which consisted of a

one-page report from Detective Cappabianca, a recorded interview of R.W. from

2002, and a recorded interview of Appellee from 2002. He did not review any

records from Children’s Services. Detective Martin testified that the victim agreed to

have the police record a telephone call between herself and Appellee. Martin’s

testimony is as follows:

Q [Prosecutor] And is a cold call when she would call her father and you

would be recording?

A Engage him in a conversation and open that conversation up where

they would talk about her sexual abuse.

Q And did that phone call take place?

A Yes, it did.

Q And were there admissions made by the Defendant --

A There were.

Q -- regarding the sexual abuse?

A A number of admissions.

(Tr., p. 80.) -8-

{¶16} Detective Martin also testified that he spoke to Appellee’s son about the

case, and the son stated that Appellee made some type of admission about the

attacks. Martin testified as follows on direct examination:

Q [Prosecutor] And did you also speak to the Defendant’s son, Daniel

Winkle, Jr.?

A I did.

Q And did he tell you about any admissions that his father had made to

him about the sexual abuse?

A He did.

(Tr., p. 80.)

{¶17} On cross-examination, Detective Martin stated that Appellee

supposedly made the admissions to his son in March, 2003. Daniel Winkle, Jr., did

not testify at the hearing, and no transcript or any other evidence of the alleged

conversation with Daniel Winkle, Jr. was provided, other than Detective Martin’s

testimony. Although Appellee allegedly told the victim’s mother, grandmother and his

son about the abuse, the police only contacted the son. Martin stated that he

interviewed the victim, who told him that Appellee said he told other family members

“that he did these things to her,” and that he “asked for her to forgive him.” (Tr., p.

85.) Detective Martin did not record this conversation with the victim. (Tr., p. 86.)

Martin could only say that “I may have taken some handwritten notes. I don’t

remember.” (Tr., p. 86.) No notes about the interview were produced.

{¶18} Detective Martin was aware that there was evidence in 2002 that a

neighbor boy by the name of Pitts may have attacked R.W., but the police never -9-

investigated this possibility. (Tr., p. 87.) The police apparently believed, without

further investigation, that the story about the neighbor was fabricated by Appellee.

(Tr., p. 88.) Detective Cappabianca stated that she could not remember any

allegations against a neighbor and did not investigate the matter.

{¶19} On August 27, 2012, the trial court sustained Appellee’s motion to

dismiss. The court noted that the case had been closed for nearly 10 years, and that

the indictment concerned events that occurred 16 to 18 years ago. The court stated

that while the case had allegedly been reopened due to new evidence, the “new

evidence” was supposedly admissions made by Appellee to his son in 2003. The

court did not consider this to be new evidence. The court noted that the state was

informed about a possible neighbor as a suspect but had never investigated the

matter, even though it had the suspect’s name. The court found that Appellee had

diligently attempted to locate records to prepare his defense, that the records were

necessary to provide an alibi and to challenge the credibility of the victim, and that

only a small portion of the records could be found. The court found that Appellee

was prejudiced by the unavailability of records, that his possible defense was crippled

and perhaps completely destroyed, and that the unavailability was caused by the

state’s inexplicable and unjust delay in prosecuting the case. The court held that the

preindictment delay was “so obvious and egregious that it is an affront to the face of

justice.” (8/27/12 J.E., p. 3.) The court found that the state “failed to produce

evidence of any justifiable reason for this unbelievably lengthy and consequently

prejudicial delay.” (8/27/12 J.E., p. 3.) The court then sustained the motion to

dismiss. This timely prosecutor’s appeal followed. -10-

ASSIGNMENT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

DISMISSED DEFENDANT’S INDICTMENT AFTER IT: ARBITRARILY

AND UNREASONABLY IGNORED THE FACT THAT THE STATE

DISCOVERED NEW EVIDENCE JUST MONTHS BEFORE HE WAS

INDICTED; ERRED IN FINDING THAT DEFENDANT SUFFERED

SUBSTANTIAL PREJUDICE FROM THE DELAY; AND FAILED TO

FIND THAT THE DELAY WAS UNJUSTIFIED BASED UPON THE

INTENTION TO GAIN A TACTICAL ADVANTAGE, OR RESULTED

FROM AN “ERROR IN JUDGMENT” OR NEGLIGENCE.

{¶20} In this appeal, Appellee alleged that the charges should be dismissed

due to preindictment delay, and the trial court agreed. The state is now arguing that

the charges should not have been dismissed because it had uncovered new

evidence, because Appellee was not prejudiced by the delay, and because the state

was not at fault in creating the delay.

{¶21} A defendant’s due process rights can be violated by preindictment

delay under certain circumstances. United States v. Marion,

,

,

(1971); United States v. Lovasco,

,

,

(1977). “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 * * *.” State v. Luck,

,

(1984), paragraph two of the syllabus. Courts -11-

apply a two-part test to determine whether preindictment delay constitutes a due

process violation. The defendant has the initial burden to show that he was

substantially and actually prejudiced due to the delay. State v. Whiting,

,

(1998); State v. Kemp, 8th Dist. No. 90029, 2013-

Ohio-167, ¶28. The burden then shifts to the state to produce evidence of a

justifiable reason for the delay. State v. Walls,

,

,

. Thereafter, the due process inquiry involves a balancing test by the

court, weighing the reasons for the delay against the prejudice to the defendant, in

light of the length of the delay. Id. at ¶51, citing United States v.

{¶22} In reviewing preindictment delay, the determination of actual or

substantial prejudice entails “a delicate judgment based on the circumstances of

each case.” Walls,

. The court must consider the evidence

against the defendant as it exists at the time the indictment is filed to ascertain

whether the delay will actually prejudice his trial. Id.; Luck,

. To

show prejudice, the defendant must raise issues arising from the delay that could be

considered more than merely “somewhat prejudic[ial].” Walls at ¶56. In Luck, there

was evidence that the victim attacked the defendant and was killed in the ensuing

fight, but a witness who could corroborate this version of the events died during the

delay in prosecution. This was enough to establish actual and substantial prejudice

and to result in dismissal of the charges.

.

{¶23} A trial court's decision on a motion to dismiss for preindictment delay is

reviewed de novo with respect to the legal issues, but the findings of fact made by -12-

the trial judge are afforded great deference on appeal. State v. Wade, 8th Dist. No.

90029,

.

{¶24} In the instant matter, the state’s case depends on the credibility of the

victim. Her credibility will be weighed in light of the fact that she is trying to recollect

events that occurred 16-18 years ago, and in light of the brief investigation that took

place in 2002. The state has conceded that actual and substantial prejudice may be

found based on loss of evidence that could be used solely to impeach the credibility

of the victim or other witnesses. Appellee provided a wide array of potential evidence

that is no longer available that he believes would have directly contradicted key

aspects of the victim’s story or could have provided an alibi. Appellee was no longer

able to prove that he was involved in a sleep study, that he slept on the couch rather

than in the upstairs bedroom, and that his wife did not work the night shift when the

crimes allegedly occurred. He was also unable to contradict part of R.W.'s story that

she had a private bedroom when the crimes occurred, because house renovation

records were no longer available to show that she shared a bedroom with her sibling

until years after the date of the alleged crimes. Hospital records, invoices, tax

records, personal calendars, employment records, medical equipment records had all

been lost or destroyed during the delay in prosecution.

{¶25} Although Appellee and the victim's mother, who would be key

witnesses in the case, both testified as to their failing memory of the events of the

prior 18 years, this is certainly not a case in which the defendant is relying primarily

on vague assertions that witnesses' memories have faded or that evidence has

spoiled due to the mere passage of time. When a defendant is solely relying on the -13-

mere passage of time and generalized deterioration of evidence and witness

memories, courts normally do not find that a defendant has been actually and

substantially prejudiced by the delay. See, e.g., State v. Glasper, 2d Dist. No. 15740,

(Feb. 21, 1997). In this case, though, Appellee was very specific

about the evidence that was lost and the effect the lost evidence would have at trial.

{¶26} The hearing on a motion to dismiss for preindictment delay is an

evidentiary hearing. The purpose of the hearing is to determine whether the

evidence of prejudice, when balanced against the evidence to be used by the state,

reflects that actual and substantial prejudice will be suffered by the defendant at trial.

. If the defendant produces evidence of actual and substantial prejudice,

the state cannot overcome a motion to dismiss by simply stating that the defendant is

not substantially prejudiced by the delay. The state must cite to other evidence that

establishes lack of prejudice or that any prejudice does not outweigh the reasons for

the delay. “[I]n a case such as this one, with a lengthy preindictment delay and a

significant amount of lost evidence, if the state fails to make a sufficient record to

rebut the defendant’s showing of prejudice, it does so at its own peril.” State v.

Brown, 4th Dist. No. 98CA25,

, at *9 (Mar. 17, 2000).

{¶27} The state argues that Appellee's lost evidence, at best, constitutes only

a partial alibi or may partially impeach the victim's testimony. Thus, they claim, it

does not create substantial prejudice. We disagree with this assessment.

Particularly as to the impeachment value of the lost evidence, it is apparent that such

evidence could undermine several aspects of the victim's testimony. The state

engages in mere speculation when it claims that the lost evidence provides only a -14-

partial alibi instead of a full alibi. Since the evidence is lost, we have no way to tell

whether every night during the alleged period of the crimes can be accounted for, or

whether the evidence would have considerably narrowed the dates that need to be

accounted for, greatly simplifying Appellee's defense. Either way, the lost evidence

appears to seriously affect Appellee's ability to even create a defense.

{¶28} Once actual and substantial prejudice is established on the record, the

state is required to provide justification for the delay. The delay may be unjustifiable

when the state, through negligence or error in judgment, effectively ceases the active

investigation of the case but later decides to commence prosecution on the same

evidence available at the time the active investigation stopped.

.

Although the length of the delay is always a consideration in cases of preindictment

delay, it can be the determining factor when the delay is caused by the prosecutor’s

negligence, intentional act, or error in judgment.

In Luck, the Ohio Supreme

Court held that 15 years of preindictment delay was unjustifiable after the prosecution

re-commenced its case without any new evidence.

. On the other

hand, when the state becomes aware of new evidence and acts diligently on that

evidence, a court may find that even a 13-year delay is justifiable. Walls at ¶56. The

trial court in this case found that no justifiable reason was given for the delay and that

the length of the delay was unreasonable.

{¶29} The record reflects that the state was either unwilling or unable to

produce any new direct evidence to explain the delay in prosecution. There were two

alleged items of new evidence. The victim told Detective Martin in 2012 that she

remembered Appellee told her brother in 2003 that he “did these things to me.” (Tr., -15-

p. 79.) Detective Martin testified that he spoke to the brother in 2012, and R.W.’s

brother told him that in 2003 Appellee made certain admissions. The nature and

content of these admissions is not in the record, other than that they somehow relate

to sexual abuse. Based on this “new” evidence from 2003, Detective Martin testified

that he set up a phone call between Appellee and R.W. in an attempt to extract some

type of confession from Appellee. The contents of this phone call were not shared

with the court at the hearing on the motion to dismiss, other than that they involved,

according to Detective Martin's interpretation, admissions regarding sexual abuse.

{¶30} Despite the state's reference that evidence from the victim, the victim's

brother, and Appellee himself existed, the only evidence the state actually produced

at the hearing was the testimony of Detective Martin. In essence, instead of

presenting any new evidence itself, the state allowed Detective Martin to give his

interpretation of the alleged evidence. The court found that Detective Martin's

testimony did not constitute or produce new evidence, and we agree. If the state

sought to explain the delay by relying on new evidence, it needed to produce actual

evidence at the hearing. Mere second- and third-hand discussion and interpretation

does not equate to production of evidence. The trier-of-fact is certainly permitted to

question whether vague general discussions and interpretations regarding alleged

evidence justifies such a lengthy preindictment delay.

{¶31} We must note at this point that the state was not required to prove that

it possessed new evidence. However, it was required to prove it had a justifiable

reason for the delay in prosecution. While proof of new evidence may do this, new

evidence alone does not necessarily justify a lengthy delay, and whether evidence -16-

should be treated as new evidence is a determination to be made by the trial court.

We also note that even if there was a justifiable reason for the delay, a court is not

required to overrule a motion to dismiss. The reason for the delay must always be

weighed against the prejudice to the defendant. In this case, the trial court indicated

its concern that the initial case was prematurely closed before the investigation was

complete. The decision reflects a belief that the state may have been at fault in

failing to continue its investigation in 2003, and any evidence that arose after the

case was closed would have been discovered much earlier had the investigation

continued. Appellee's purported admission to his son in 2003, therefore, was not

necessarily new evidence to support the delay in prosecution, even though it may

have arisen after the case was closed, because it would have been discovered if the

investigation had been more thorough or had continued for a longer period.

{¶32} More striking, though, is that there is not a single record of a specific

statement, or even a paraphrase of a statement, made by Appellee that could be

evaluated by either the trial court or on review to support the allegation that Appellee

actually made an admission of guilt or involvement in some type of crime against his

daughter. The state appears to argue that Appellee’s failure to deny the accusations

is proof of his guilt, but even if this were the state of the law in Ohio this record does

not show that he was even given such an opportunity.

{¶33} At oral argument the state advanced that the victim’s decision to

cooperate with the investigation in 2012 was in itself new evidence. Although this

may be a valid line of argument in some sexual assault cases, it does not appear to

be true here. The record does not reflect that the state ever investigated whether the -17-

victim was truly uncooperative in 2003. It was the victim's mother who told the

investigator that her daughter was “shutting down.” On this basis, along with the lack

of any other evidence and the failure to investigate the other suspect, the

investigation was closed. (Tr., p. 72.) Apparently, the victim was never asked if she

would testify or about the nature of that testimony. It is also apparent that the state

did not rely in the trial court on the victim's 2012 decision to cooperate in the

investigation as new evidence justifying the delay. The state relied on Appellee's

unspecified admission to his son in 2003, and the unspecified admissions in the

telephone call in 2012. (Tr., p. 80.)

{¶34} The record contains evidence that Appellee suffered actual and

substantial prejudice in the delay of prosecution due to the loss of impeachment and

alibi evidence. The state countered with indirect evidence that Appellee may have

made some type of admission to his son in 2003, and that a phone call was recorded

in 2012 that may also have resulted in some type of admission by Appellee. The

state did not actually produce this evidence. Instead, it allowed a detective to

interpret the alleged evidence. The court determined that the state failed to conduct

a complete investigation in 2003, and that the evidence as presented by the state did

not establish a justifiable reason for the delay. Since the state failed to provide any

new evidence, or at least enough indications that it had obtained new evidence to

satisfy the trial court, and because the state failed to explain why the case was

closed without a complete investigation, the trial court was correct in finding no

justification for the preindictment delay and in dismissing the charges. We overrule -18-

Appellant's assignment of error and affirm the trial court’s judgment to dismiss on the

basis of preindictment delay.

Donofrio, J., concurs.

Vukovich, J., concurs.