[Cite as State v. Danzy,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 109433 v. :

DREW ELLIS DANZY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 29, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-629916-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Melissa Riley, Assistant Prosecuting Attorney, for appellee.

Edward M. Heindel, for appellant.

LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant, Drew Ellis Danzy (“Danzy”), appeals his

conviction for rape. Finding no merit to the appeal, we affirm.

{¶ 2} In 2018, Danzy was charged in connection with the 2001 rape and

kidnapping of I.W. He was charged with one count of rape, with a notice of prior conviction and repeat violent offender specification, and one count of kidnapping

with notice of prior conviction, repeat violent offender specification, sexual

motivation specification, and sexually violent predator specification.

{¶ 3} Danzy filed a motion to dismiss his indictment due to preindictment

delay. The state opposed the motion, and the trial court denied the motion. The

case proceeded to a jury trial in December 2019.

{¶ 4} I.W. testified that on April 27, 2001, she set off on foot from her house

in Cleveland to see her former husband at Colombian Vise, where he was employed

as a machinist, to talk about their son, who was being disruptive at school.

According to I.W., it usually took her about an hour to walk from her house to the

factory. On that particular day, it was hot and she was very tired. She testified that

a man driving a silver car pulled up next to her, rolled down the windows, and

asked, “Miss, would you like a ride?”’

{¶ 5} I.W. accepted the man’s offer and got into the front seat of the silver

car. I.W. told the driver she was going to Colombian Vise and he said he knew

where it was located, but instead of taking her to the factory, he drove to a garage,

pulled in, and parked. I.W. testified that the man told her to take her pants off.

She tried to get out of the car, but the man grabbed her by the back of her hair.

{¶ 6} I.W. testified she did not remember anything else because she

blacked out. She does not know what caused her to black out, but testified that it

was not from drinking or taking drugs. She guessed it was from the heat “because

it was really hot that day.” The next thing I.W. remembered was being found by a man and woman on the sidewalk, with her underwear and pants down. She pulled

them up. I.W. testified that she did not know the people who found her. The

couple took I.W. to St. Michael’s Hospital in a copper-colored car.

{¶ 7} I.W. testified that she was in the emergency room when a police officer

approached her to ask questions. She was crying and scared. The officer asked her

if she was “sure she was raped” and reached out to touch her hand. I.W. testified

that she turned away from the officer because she did not want anyone to touch

her.

{¶ 8} I.W. testified that she left the hospital and “ran” to her mother’s house

after the exam. She did not remember following up with the police to see if they

investigated the case and did not hear anything from them until 2018 when some

detectives came to her mother’s house to question her.

{¶ 9} Nurse Arline Skoll (“Nurse Skoll”) testified that she is a retired nurse

and had worked in the emergency room at St. Michael’s Hospital in April 2001.

She was part of the team that treated I.W. I.W. told Skoll that she took a ride with

an unknown male and when she was in his car, he pulled her hair and threatened

her with a knife. He put the knife to I.W.’s throat and told her he would kill her if

she did not give him what he wanted. I.W. told Skoll that she rarely drank alcohol,

did not do drugs, and had not had sexual intercourse in three years. Nurse Skoll’s

notes indicated that I.W. “was inconsolable” and could not stop crying.

{¶ 10} As part of the examination, the hospital collected I.W.’s clothing and

performed a rape kit collecting swabs and combings from multiple areas of I.W.’s body: oral, perineal, vaginal, pubic and head hair, blood, and fingernail. When the

rape kit was complete, it was released to the Cleveland police.

{¶ 11} Cleveland Police Detective Troy Edge (“Detective Edge”) testified he

was sent to St. Michael’s Hospital on April 27, 2001, to pick up a rape kit and a bag

of clothing belonging to I.W. At that time, the identity of I.W.’s attacker was

unknown; Danzy was not a suspect.

{¶ 12} The rape kit was submitted to the Ohio Bureau of Criminal

Investigation (“BCI”) in January 2014. In 2016, during an unrelated investigation,

the Cleveland police learned that Danzy might be a match to the DNA found in

I.W.’s rape kit. The rape kit was tested and a DNA match was established. Emily

Feldenkris (“Feldenkris”), a forensic scientist at BCI, testified that the vaginal,

anal, and pubic hair samples contained DNA from both I.W. and Danzy. The anal

sample contained additional DNA from a third unknown source, but the sample

was too insufficient to make an interpretation or identification.

{¶ 13} Cuyahoga County Sheriff’s Detective Patricia Siefer (“Detective

Siefer”) testified that she was assigned to the case as part of the sexual assault cold-

case task force. As part of her investigation, she interviewed Danzy. Danzy denied

having sexual intercourse with I.W.

{¶ 14} Detective Siefer also interviewed I.W. According to Detective Siefer,

her review of the case file revealed that Cleveland police closed the file after I.W.

was a “no show” to meet with police in 2001. Special Agent Stacy Fifer, who

worked with Detective Siefer, showed I.W. a photo lineup that contained Danzy’s picture. I.W. did not recognize anyone in the photo lineup, but reiterated that she

did not have consensual sex with her attacker.

{¶ 15} Danzy testified in his own defense. He testified that he was a “heavy

drug addict” from 1990 until 2010. He was addicted to crack cocaine and was also

involved with various women with whom he would smoke drugs and have sexual

intercourse at either his house or another “smokehouse” in the area.

{¶ 16} Danzy testified that, in 2001, he was involved in drugs and casual

sexual activity. He denied having a car in 2001 or raping I.W. He testified that he

“used to see the woman out there on the streets” and “[w]e might have got together

and [had] consensual sex.”

{¶ 17} On cross-examination, Danzy admitted he was convicted of felonious

assault with a violence specification against a female victim in 1996.

{¶ 18} The jury acquitted Danzy of kidnapping but convicted him of rape.

The state dismissed the repeat violent offender specification, and the trial court

found Danzy guilty of the notice of prior conviction specification. The court

sentenced Danzy to five years in prison.

{¶ 19} Danzy filed a notice of appeal and raises the following assignments of

error for our review:

I. The trial court erred when it denied Danzy’s motion to dismiss for preindictment delay in violation of Danzy’s federal and state due process rights.

II. The trial court erred when it allowed the prosecution to cross- examine Danzy about his 16-year old conviction for felonious assault.

III. Danzy was denied his right to a speedy trial. IV. The conviction was not supported by sufficient evidence.

V. The conviction was against the manifest weight of the evidence.

Preindictment Delay

{¶ 20} In the first assignment of error, Danzy claims that the trial court

erred when it denied his motion to dismiss the case against him due to

preindictment delay.

{¶ 21} The statute of limitations for a criminal offense is a defendant’s

primary protection against overly stale criminal charges. United States v. Marion,

,

,

(1971). However, the Due Process

Clause of the Fifth Amendment provides additional protection in cases where the

preindictment delay was unjustifiable and caused actual prejudice. United States

v. Lovasco,

,

,

(1977); State v. Jones,

,

,

.

{¶ 22} The Ohio Supreme Court has established a burden-shifting

framework for analyzing a due process claim based on preindictment delay. Jones

at ¶ 13. Under this framework, the defendant bears the initial burden of presenting

evidence of actual prejudice. Id. “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., citing State v. Whiting,

,

(1998); State v. Adams,

,

,

.

Thus, if the defendant fails to establish actual prejudice, the court is not required

to consider the reasons for the delay. Adams at ¶ 107. {¶ 23} “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 State v. Walls,

,

,

, ¶ 52.

A claim of actual prejudice should be scrutinized “vis-a-vis the particular evidence

that was lost or unavailable as a result of the delay” and “the relevance of the lost

evidence and its purported effect on the defense.” State v. Robinson, 8th Dist.

Cuyahoga No. 107950,

, citing Walls at

{¶ 24} Danzy contends he provided sufficient evidence to warrant a hearing

on his motion to see if he could establish actual prejudice. He claims that evidence

was lost and witnesses could no longer be found. Specifically, he argues that if the

case had been properly indicted in 2001, they could have investigated the car in

which I.W. alleged the rape occurred and located the two people who took I.W. to

the hospital.

{¶ 25} We disagree. Danzy testified that he did not own a car in 2001;

therefore, it was his claim that no car existed and we cannot see how that evidence

could be lost if it did not, as Danzy claims, even exist. With regard to the two

people who found I.W. and took her to the hospital, I.W. testified that she did not

know them and Danzy has not offered what the two people would have testified to

that would have bolstered his defense. Although a defendant is not required to

establish precisely what an unavailable witness would have testified to at trial,

“there must be some indication in the record of what the missing evidence or

unavailable witness might have offered.” State v. Richardson,

,

, ¶ 13 (8th Dist.). Here, because the two people who took I.W. to the

hospital were never identified, let alone identified as witnesses, there is nothing in

the record demonstrating what their unavailable testimony might have offered.

See State v. Knox, 8th Dist. Cuyahoga No. 107414,

, ¶ 37. Thus, we

do not find that Danzy would have been able to establish actual prejudice.

{¶ 26} Because Danzy is unable to show actual prejudice, the state is not

required to show the reason for their delay in commencing prosecution. See

Adams,

,

,

, citing

United States v. Schaffer,

(6th Cir. 2009). That said, even if

Danzy had established actual prejudice, the state produced evidence of a justifiable

reason for delay in the commencement of prosecution.

{¶ 27} A delay may be found unjustifiable when the state’s reason for the

delay is to intentionally gain a tactical advantage over the defendant, “or when the

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

investigation of a case, but later decides to commence prosecution upon the same

evidence that was available to it at the time that its active investigation was

ceased.” Knox at ¶ 41, citing State v. Luck,

,

(1984). There is nothing in the record to suggest that the state used the delay in

this case to gain a tactical advantage over Danzy, or that the state ceased its

investigation and then, without new information, decided to prosecute.

{¶ 28} The record demonstrates that a rape-kit examination was conducted

in 2001. Contrary to Danzy’s assertion, there is no evidence that the state was in possession of his DNA in 2001 and he was not a suspect at that time ─ I.W. did not

know the man who raped her. Despite the police attempts to investigate the case,

I.W. failed to appear to be interviewed and the case was closed. The case was

reopened in 2014 when the police sent I.W.’s rape kit to BCI to be processed but it

was not until 2016 that BCI discovered a potential DNA match. BCI made the

Cleveland police aware of the potential match and the investigation proceeded.

{¶ 29} In light of these facts, there is nothing to suggest that the reasons for

the delay in indicting Danzy were for anything other than investigative purposes.

{¶ 30} Therefore, the trial court did not err in denying Danzy’s motion to

dismiss for preindictment delay. The first assignment of error is overruled.

Cross-Examination

{¶ 31} In the second assignment of error, Danzy contends that the trial

court erred in allowing the state to cross-examine him about a previous conviction

for felonious assault.

{¶ 32} A trial court is vested with broad discretion regarding decisions to

admit or exclude relevant evidence in a trial. State v. Myers,

,

(2002). A reviewing court will not reverse a trial court’s

decision on the admission or exclusion of evidence absent an abuse of discretion.

State v. Sage,

,

(1987).

{¶ 33} During Danzy’s cross-examination, he testified to the following:

Danzy: Well, see, a lot of people would bring drugs to me because * * * of what I had and the quietness, the privacy and the paraphernalias [sic]. And I wasn’t a violent, I wasn’t that type of person. And I used to have a lot of women come to me and smoke with me.

{¶ 34} After this exchange, the state indicated to the court at sidebar that it

planned on questioning Danzy about his 1996 conviction for felonious assault to

rebut his statement that he was not a violent person. Defense counsel objected.

After hearing arguments and allowing the parties to brief the issue, the trial court

overruled defense counsel’s objection, finding that Danzy had opened the door to

introduction of his violent character by claiming he was nonviolent.

{¶ 35} While the Rules of Evidence generally prohibit the use of character

evidence to show that an accused has the propensity to commit the crime with

which he or she stands charged, see State v. Thompson,

,

(1981), it is well-established that once an accused puts evidence of

a pertinent character trait in issue, the prosecution may offer evidence to rebut the

accused’s character evidence. See Evid.R. 404(A)(1).

{¶ 36} Specifically, Evid.R. 404(A)(1) provides:

Evidence of a pertinent trait of [the accused’s] character offered by an accused, or by the prosecution to rebut the same is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable.

{¶ 37} Thus, Evid.R. 404(A)(1) permits a criminal defendant to choose to

“offer evidence of his [or her] good character as proof that he [or she] did not

commit the act charged because such conduct is not in accord with his [or her]

character.” Gianelli, Giannelli Snyder Evidence at 229 (1996). “If the accused

offers evidence of his [or her] good character,” however, “the prosecution [may] offer evidence of the bad character of the accused.”

By introducing such

evidence, the defendant “opens the door” for the prosecution, which is then

permitted to rebut or impeach the character evidence on cross-examination.

Evid.R. 405(A); see also State v. Salyers, 3d Dist. Allen No. 1-19-17, 2020-Ohio-

147.

{¶ 38} This is precisely what occurred in this case. Danzy testified that he

was a nonviolent person. The state rebutted that testimony with the following

inquiry:

State: So before yesterday when you told the jury that you were not a violent person, is that the truth or is that a lie?

Danzy: Yes, that’s the truth.

State: Well, what about your conviction for felonious assault with a violence specification?

Danzy: Well, ma’am, I took responsibility for that and I plead to it. And that was, like, 20 years ago.

***

State: And what you took responsibility for was for knowingly causing serious physical harm to [“A.M.”], correct?

Danzy: Yes, ma’am.

State: And you also took responsibility for a violence specification?

Danzy: Yes, ma’am.

State: So when you said you were not a violent person, you just left out the violent parts, correct?

Danzy: I am not a violent person. State: Even though you were convicted of causing serious physical harm to [“A.M”]?

Danzy: Yes, ma’am, I did.

{¶ 39} Danzy portrayed himself as the type of person who was quiet,

private, and attractive to women because he always had drugs or drug

paraphernalia on him, and not violent. To rebut this testimony, the prosecution

presented evidence to show that Danzy did not possess the character traits of a

nonviolent person.

{¶ 40} Further, we note that even though his conviction for felonious

assault occurred in 1996, outside the ten-year time limit prescribed by Evid.R. 609,

it occurred closer in time to the 2001 incident for which he was on trial in this case.

{¶ 41} In light of the above, the second assignment of error is overruled.

Speedy-Trial Rights

{¶ 42} In the third assignment of error, Danzy contends that his right to a

speedy trial was violated.

{¶ 43} As an initial matter, we note that Danzy did not raise this issue at the

trial-court level; therefore, he has waived the issue for appeal. State v. Mango, 8th

Dist. Cuyahoga No. 103146,

. Even though he has waived the

issue for purposes of appeal, we briefly review for plain error.

{¶ 44} Pursuant to R.C. 2945.71(C)(2), the state must bring a defendant to

trial on felony charges within 270 days of arrest. Under the “triple count

provision” contained in R.C. 2945.71(E), each day a defendant is held in jail in lieu of bail counts as three days in the speedy trial time calculation. Therefore, a

defendant held in jail without bail on a pending felony charge must be tried within

90 days. The statutory speedy trial period begins to run on the date the defendant

is arrested, although the date of arrest is not counted when calculating speedy-trial

time. State v. Wells, 8th Dist. Cuyahoga No. 98388,

.

{¶ 45} Speedy-trial time is tolled by certain events delineated in R.C.

2945.72. Such tolling events include “[a]ny period of delay occasioned by the

neglect or improper act of the accused,” any period of delay “necessitated by reason

of a plea in bar or abatement, motion, proceeding, or action made or instituted by

the accused, and any continuances granted upon the accused’s own motion,” and a

“period of any reasonable continuance granted” upon any other party’s motion.

R.C. 2945.72(D), (E), and (H). A defendant’s demand for discovery tolls the

speedy-trial time until the state responds to the discovery, or for a reasonable time,

whichever is sooner. State v. Shabazz, 8th Dist. Cuyahoga No. 95021, 2011-Ohio-

2260, ¶ 26, 31; R.C. 2945.72(E).

{¶ 46} Danzy was arraigned on July 12, 2018. Danzy spent one day in jail

but immediately posted bond. Trial began on December 9, 2019, approximately

514 days after his arraignment. During the pretrial process, Danzy filed numerous

motions, including four motions for discovery, multiple motions to withdraw

counsel, motion for independent analysis, motions to dismiss, and motions to toll

speedy trial, which was tolled four times due to continuances at Danzy’s request.

In addition, time was tolled for over four months when Danzy failed to respond to the state’s discovery request. See State v. Garner, 8th Dist. Cuyahoga No. 102816,

, ¶ 29.1

{¶ 47} Our review of the record shows no violation of Danzy’s right to a

speedy trial. The third assignment of error is overruled.

Sufficient Evidence Supported Danzy’s Rape Conviction

{¶ 48} In the fourth assignment of error, Danzy contends that his

conviction was not supported by sufficient evidence because the state did not prove

beyond a reasonable doubt the element of “sexual conduct.”

{¶ 49} When assessing a challenge to the sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether

such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus. “The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.”

A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.” State v. Thompkins,

,

(1997).

1The state filed its demand for discovery on July 18, 2018. Using 30 days as a reasonable response time, Danzy’s speedy-trial time was tolled until discovery was answered on February 12, 2019. {¶ 50} Danzy was convicted of rape, in violation of R.C. 2907.02(A)(2) that

provides that “[n]o person shall engage in sexual conduct with another when the

offender purposely compels the other person to submit by force or threat of force.”

{¶ 51} As pertinent to this appeal, sexual conduct means “without privilege

to do so, the insertion, however slight, of any part of the body * * * into the vaginal

or anal opening of another. Penetration, however slight, is sufficient to complete

vaginal or anal intercourse.” R.C. 2907.01(A).

{¶ 52} I.W. testified at trial that Danzy, whom she did not know, drove her

to a garage and that she blacked out during the assault. When she woke up, she

was on the sidewalk with her underwear and pants down. A couple drove her to

the hospital where a rape kit was performed. I.W. told Nurse Skroll, who also

testified at trial, that her attacker threatened her with a knife, that he did not wear

a condom, and that he ejaculated inside her vagina. I.W. denied oral or rectal

penetration. As part of the rape kit, oral, perineal, pubic and head hair, blood,

fingernail, and vaginal specimens were collected. Feldenkris, the BCI forensic

scientist, testified that Danzy’s sperm fraction was found on the vaginal, pubic hair,

and anal samples taken from I.W.

{¶ 53} This testimony, if believed by the trier of fact, is sufficient to fulfill

the element of sexual conduct.

{¶ 54} The fourth assignment of error is overruled.

{¶ 55} In the fifth assignment of error, Danzy argues that his conviction was

against the manifest weight of the evidence. {¶ 56} A manifest-weight-of-the-evidence challenge examines the

“inclination of the greater amount of credible evidence, offered at a trial, to support

one side of the issue rather than the other.” State v. Bradbury, 12th Dist. Butler

No. CA2015-06-111,

. To determine whether a conviction is

against the manifest weight of the evidence, the reviewing court must look at the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether in resolving the conflicts in the

evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.

An appellate court will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial

weighs heavily in favor of acquittal. Id. at ¶ 18.

{¶ 57} Danzy contends that the conviction was against the manifest weight

of the evidence because I.W. had difficulty remembering the incident, the knife,

the car, and the two people who took her to the hospital were never found, and

there was a third person’s DNA found on the anal swab.

{¶ 58} At trial, I.W. acknowledged she had difficulty remembering the

incident and blacked out during the attack. She testified she remembered waking

up on the sidewalk with her underwear and pants down and that an unknown

couple took her to the hospital. Although the presence of a third DNA was found

on the anal swab, Feldenkris testified that the source of the DNA could not be identified because there sample was insufficient and, therefore, Feldenkris could

not determine if the DNA belonged to a man or a woman or how it got there.

{¶ 59} As the trier of fact, the jury was in the best position to see and hear

the witnesses, and observe their demeanor, equivocation, and candor when it

determined the weight to be given their testimony. By its verdict, the jury plainly

chose to credit the testimony of the victim and conclude that Danzy’s version was

not credible. The jury heard all of the testimony, considered the evidence, and

found the state’s theory of the case and its witnesses credible, and we will not

disturb the jury’s verdict on appeal. Danzy’s rape conviction is therefore not

against the manifest weight of the evidence.

{¶ 60} The fifth assignment of error is overruled.

{¶ 61} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded

to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR