[Cite as State v. Kirk,

.]

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,

.

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.

, 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,

,

, ¶ 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,

. (“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.

.

{¶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