State v. Dickerson , 2016 Ohio 807 ( 2016 )

[Cite as State v. Dickerson, 2016-Ohio-807.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102461
STATE OF OHIO
PLAINTIFF-APPELLANT/
CROSS-APPELLEE
vs.
OSCAR DICKERSON
DEFENDANT-APPELLEE/
CROSS-APPELLANT
JUDGMENT:
VACATED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585521-A
BEFORE: Jones, A.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: March 3, 2016
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Mary Weston
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE/CROSS-APPELLANT
Patricia J. Smith
9088 Superior Avenue, Suite 105
Streetsboro, Ohio 44241
LARRY A. JONES, SR., A.J.:
{¶1} In May 2014, defendant-appellee/cross-appellant, Oscar Dickerson, was indicted on
several counts stemming from a July 1994 rape allegation and associated crimes.1 In July 2014,
by agreement of the parties, trial was set for August 27, 2014. However, upon Dickerson’s
motion, the trial date was reset for November 12, 2014. On November 5, 2014, Dickerson filed
a motion to dismiss based on preindictment delay; the motion was denied as untimely.
{¶2} The case proceeded to a jury trial, and after its deliberations, the jury convicted
Dickerson of one count each of rape, complicity, and kidnapping. The trial court sentenced
Dickerson to an aggregate five-year sentence. The sentence was imposed under the current
sentencing regime, Am.H.B. No. 86, which became effective on September 30, 2011.
{¶3} Plaintiff-appellant/cross-appellee, the state of Ohio, has appealed, contending that
the trial court erred by ordering a definite term of incarceration under the present sentencing
regime because Dickerson would have been subject to an indefinite sentence under the
sentencing regime as it existed at the time he committed the offenses.
{¶4} Dickerson has cross-appealed, contending that the trial court erred in denying his
motion to dismiss; he also contends that his trial counsel was ineffective for not timely filing it.
Further, Dickerson contends that the evidence was insufficient to support his convictions.
{¶5} For the reasons set forth below, we find merit to Dickerson’s ineffective assistance
of counsel claim, and vacate his conviction under it. The state’s assignment of error is therefore
moot.
I. Facts
1
A codefendant, Michael Jenkins, was also indicted and jointly tried with Dickerson. He appealed, raising the same
assignment of error as Dickerson relative to sentencing. His sentence was affirmed. State v. Jenkins, 8th Dist.
Cuyahoga No. 102462, 2015-Ohio-4583.
{¶6} The following facts were elicited at trial. The victim, J.R., testified that on the date
of the incident, July 2, 1994, she was 16 years old. That day and into the evening, she had been
with her boyfriend at his house. J.R. testified that her family life was troubled at the time, and
she was “living recklessly.”2 She testified that on the day in question, she had been drinking
and smoking marijuana and was under the influence. She left her boyfriend’s house sometime
after midnight to walk an approximate 40-minute walk to her home, where she lived with her
mother and siblings; her boyfriend walked her part of the way home.
{¶7} J.R. testified that after her boyfriend left her, and while walking alone, a car, with
three males inside, approached her while she was on West 140th Street in Cleveland. She was
near her home at that time; her house was approximately an eight- to ten-minute walk, or a
four-minute run, away.
{¶8} The males in the car called out to her as the car drove past her. The driver then
“circled back” a few times. J.R. testified that she “waved them off.” However, as she
approached Puritas Road, the car pulled over by a library. The victim testified that inside the
car there were two younger black males, and one older white male, who was driving the car; she
denied knowing any of them.
{¶9} J.R. testified that she walked off the sidewalk and tried to cut through an open area
to avoid the men, but one of the males got out of the car. She stopped walking while the man
approached her. The male offered her a ride home, which she declined, but when he persisted,
she, “not thinking,” got in the car. J.R. testified that she accepted the ride because she was
scared. It was approximately 1:30 a.m. when she got in the car.
2
At the time of this incident, J.R. had been adjudicated unruly and was on probation. Her father had been
imprisoned for sexually molesting her, but, as J.R. testified, “[t]hanks to the old law and shock parole,” he had been
released early. He was not living with J.R. and her family at the time of this incident, however.
{¶10} Once in the car, she told the men where she lived, but the driver drove the car past
her street. The victim testified that she protested, but the men ignored her. They eventually
arrived at a hotel.
{¶11} J.R. testified that the car was parked in a manner so that the hotel clerk could not
see that she was in the car. The white male went into the hotel to rent a room, while the two
black males stayed in the car with her. When the white male returned, the two black males
walked J.R. into the hotel through a back entrance, and took her to a room. Meanwhile, the
white male had driven off. Records indicate that the white male, later identified as Jerry
Polivka, rented the room at approximately 4:42 a.m. The victim was unable to recall what had
happened between 1:30 a.m. when the males picked her up until 4:42 a.m. when the room was
rented.
{¶12} J.R. testified that she tried to think of a way to get out of the situation. She asked
to go outside to smoke a cigarette, hoping to escape, but one of the males went with her and even
gave her crack cocaine to put on the end of her cigarette; she smoked the cigarette with the crack
on it to “numb” herself for what she believed “was going to happen” so that she would not
remember it. The victim testified that she was never left alone during the whole incident. One
of the males told J.R. that his name was “Mike” and the other said he went by “O”; the victim
testified that “O” said his real name was “Oscar.”
{¶13} After J.R. finished smoking, she and the male went back into the hotel room. J.R.
went into the bathroom, and “Mike” followed her. J.R. testified that “Mike” began to take her
clothes off, and she “weakly” protested, but “he wasn’t hearing what [she] said.” She told him
that she could not have sex because she had a boyfriend and she might be pregnant. The victim
testified that after telling “Mike” about having a boyfriend and possibly being pregnant, she “just
kind of went dead; [she] put her mind in another place and * * * didn’t respond or talk; [she]
didn’t do anything.” J.R. testified that “Mike” then vaginally raped her. She testified that,
although she had tried to push “Mike” away, she did not hit or kick him, or scream, because she
feared that she would make the situation worse and he would hurt her if she fought back.
{¶14} J.R. testified that after “Mike” raped her, she put her clothes back on, and returned
to the living area of the hotel room, unsure about what she should do next. There were not any
lights on in the room, and the only illumination was from the television, which was on. “O”
was in the living area, and he took her clothes off and vaginally raped her on the bed. The
victim testified that she did not say anything during the rape, but she was crying. She explained
that, like with the encounter with “Mike,” she “just tried to kind of put [her] mind in a different
place, and * * * didn’t fight or hit or kick or any of those things.” J.R. testified that although
she cried during the rape, because the room was mainly dark, “O” might not have known she was
crying.
{¶15} After “O” raped her, J.R. went to the bathroom again. “Mike” followed her and
vaginally raped her again. “Mike” told her to “wash up, get comfortable because you are going
to be here for a while.” “Mike” left the bathroom and J.R. stayed in the bathroom to wash up
and get her clothes back on. She testified that she believed she took a shower, although neither
man had specifically directed her to do so.
{¶16} When she returned to the living area, it appeared that both males were asleep.
She watched them for a little bit, to make sure they were asleep, and after she decided that they
were, she escaped. J.R. testified that she ran from the hotel to her home. Once inside her
home, she attempted to “run upstairs to the bathroom,” but her mother, who was angry,
confronted her and demanded to know where she had been. J.R. told her mother what had
happened.
{¶17} Her mother testified to a different version of events, however. According to her
mother, she was sitting out on the front porch enjoying the nice weather when J.R. returned home
sometime between 8:00 a.m. and 9:00 a.m. J.R. did not appear to be intoxicated when she
returned home, but she looked “somber and broken”; her mother testified that she had never seen
her like that before.
{¶18} Because of the mother and J.R.’s “very troubled relationship,” usually when J.R.
would come home after having been out all night, she would avoid her mother and just run to her
room or go to get something to eat. But her mother testified that this time J.R. came and sat
down with her on the front porch and looked like she wanted to talk. The mother testified that
she (the mother) “just sat there and * * * looked at her, and she told me what had happened the
previous night.” J.R. and her mother immediately reported the incident to the police.
{¶19} Officer William Neider (“Officer Neider”) of the Cleveland Police responded to
the home. J.R. gave Officer Neider a description of “O” and “Mike,” and told him where the
incident had occurred, even giving him the room number at the hotel. The officer advised J.R.
to go the hospital, and he and his partner went to the hotel to investigate.
{¶20} When the officers arrived at the hotel, an employee took them to the room, and
knocked and announced that if the door was not opened she would unlock it. After receiving no
response, the employee unlocked the door. The two suspects, “O” and “Mike,” were inside
sleeping. The police awakened and arrested them. They were startled, but cooperative. The
police learned that Jerry Polivka was the man who had driven them to the hotel and rented the
room.
{¶21} Meanwhile, at the hospital, J.R. told the emergency room nurse who treated her
that she had been “pushed around” and raped by two males at a hotel. Specifically, J.R. said
that as she was walking home, the men approached her and invited her to a party at a hotel,
which she declined. Upon declining, the “men grabbed her arm and pushed her into the back of
the car.”
{¶22} J.R. told the nurse that the sexual assaults included both vaginal and oral
intercourse, and told the nurse that she “choked and gagged” after the oral intercourse. She also
told the nurse that one of the men attempted anal intercourse, but she screamed and he stopped.
J.R. testified that she was honest with the nurse, and that the discrepancies with what she told the
nurse vis-a-vis her trial testimony was due to her not remembering everything at trial because of
the passage of time, during which she tried to forget the whole event.
{¶23} The nurse noted in her report that J.R. was “moderately tearful,” “moderately
calm,” with no signs of acute distress. The nurse noted, however, that the victim was
apprehensive during the pelvic exam and would “jump” when she was touched. The victim told
the nurse that the first man had vaginal intercourse with her and the second man had oral
intercourse with her. According to the nurse, J.R. did not appear to be intoxicated. A
pregnancy test taken at the hospital revealed that J.R. was not pregnant at that time.
{¶24} When she was finished at the hospital, J.R. and her mother went to the justice
center where they met with a female detective. J.R. testified that the detective was “very rude,”
and gave her opinion of the incident. Feeling humiliated, J.R. told the detective to “forget it if
she wasn’t going to help.” However, her mother testified that they were “[t]reated with respect
[and] taken seriously” during their meeting with the detective. The detective marked the file
with code words indicating that no further investigation was to be had.
{¶25} A few days after the rapes, J.R. was walking to her boyfriend’s house when “Mike”
pulled up alongside her. The victim testified that he was “angry,” “threatened her,” and
“forced” her to sign a note recanting the incident. J.R. signed the note, but then immediately
reported the incident to the police. The police made an intimidation report, but, according to
J.R., never followed up with her. J.R. testified that she just wanted to “get on with her life.”
Shortly after the incident, J.R. learned that she was pregnant and, as her mother testified, J.R.
“started focusing on being excited about having a baby.”
{¶26} In August 2012, the victim’s rape kit was sent out for testing as part of the attorney
general’s sexual assault kit testing initiative. Dickerson’s DNA was on a vaginal swab and
Jenkins’s DNA was on clothing J.R. had been wearing the day of the incident. The case was
reopened and assigned to Detective Timothy Clark (“Detective Clark”), who had not originally
been involved in the case. J.R. was contacted by Detective Clark. She was shown a photo
array, and picked Jenkins as one of the perpetrators, but did not pick Dickerson. In 2014,
Dickerson was indicted. Polivka, the driver on the evening in question, was deceased at the
time of indictment.3
{¶27} On this evidence the jury found Dickerson guilty of one count each of rape,
complicity, and kidnaping. The trial court sentenced him to a five-year prison term under the
present sentencing regime. The state presents the following assignment of error for our review:
“Because Defendant-Appellee committed his offenses prior to July 1, 1996, the trial court erred
when it sentenced Defendant-Appellee under sentencing provisions effective July 1, 1996 and
H.B. 86 provisions effective September 30, 2011.”
{¶28} In his cross-appeal, Dickerson presents the following three assignments of error for
3
The record does not indicate exactly when Polivka died, but Jenkins’s counsel indicated that she believed it was in
2007.
our review:
[I.] The trial court erred when it failed to dismiss the case for pre-indictment
delay.
[II.] Trial counsel provided ineffective assistance of counsel for failing to timely
file a motion to dismiss for pre-indictment delay.
[III.] The state failed to meet its burden where there was not sufficient evidence of
force or threat of force to sustain a conviction for rape, complicity to rape, and
kidnapping pursuant to [R.C.] 2907.02(A)(2), 2905.01(A)(4) and 2923.03(A)(2).
II. Law and Analysis
State’s Appeal Moot
{¶29} For the reasons set forth below, we find merit to Dickerson’s appeal, which renders
the state’s assignment of error moot. We therefore overrule the state’s sole assignment of error.
Dickerson’s Appeal
Preindictment Delay and Ineffective Assistance of Counsel
{¶30} Dickerson’s trial counsel filed a motion to dismiss based on preindictment delay on
November 5, 2014, one week before the case went to trial. The trial court denied the motion as
untimely. In his first assignment of error, Dickerson contends that the trial court erred in
denying his motion. In his second assignment of error, Dickerson contends that his counsel was
ineffective for not timely filing the motion.
{¶31} Crim.R. 12 governs pretrial pleadings and motions in criminal cases. The rule
provides that pretrial motions “shall be made within thirty-five days after arraignment or seven
days before trial, whichever is earlier. The court in the interest of justice may extend the time
for making pretrial motions.” Crim.R. 12(D). Dickerson was arraigned on June 6, 2014, and
therefore, under Crim.R. 12(D), his motion to dismiss should have been filed in July 2014.
{¶32} We consider whether, in the interest of justice, the trial court should have extended
the time for the filing of the motion to dismiss. The trial court’s decision whether to permit
leave to file an untimely pretrial motion is within its sound discretion. Akron v. Milewski, 21
Ohio App.3d 140, 142, 487 N.E.2d 582 (9th Dist.1985). Our review is, therefore, limited to
whether the trial court abused its discretion in rendering its decision. Id. An abuse of
discretion suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying an
abuse of discretion standard, an appellate court may not substitute its judgment for that of the
trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).
{¶33} The trial court questioned Dickerson’s counsel about the untimeliness of his
motion. Counsel responded that he had just recently learned that the driver, Jerry Polivka, was
deceased. He also stated that he filed his motion based on a then-recent decision from this
court, State v. Mack, 8th Dist. Cuyahoga No. 100965, 2014-Ohio-4817, appeal not accepted, 143
Ohio St.3d 1480, 2015-Ohio-3958, 38 N.E.3d 901.
{¶34} The assistant prosecuting attorney responded that the defense was advised of
Polivka’s death in the state’s initial discovery response. The court responded that Mack did not
change the law on preindictment delay, a finding with which we agree, and moreover, that Mack
was not even mentioned in the written motion to dismiss, another true finding. Defense counsel
did not dispute the state’s claim that the defense was advised of Polivka’s death at the early
stages of this case.4
{¶35} On this record, we do not find that the trial court abused its discretion in denying
4
The state initially provided the defense with discovery on June 12, 2014. That discovery included a photo
identification of Polivka (as picked by the victim from an array), a March 2014 investigative report (which the state
claimed reported that Polivka was deceased), and the initial police report. Further, Polivka was not listed as a
witness whom the state intended to call at trial.
the motion to dismiss as untimely. The first assignment is therefore overruled, and we next
consider whether counsel was ineffective for failing to timely file the motion to dismiss.
{¶36} In order to successfully maintain an ineffective assistance of counsel claim, a
defendant must demonstrate that counsel’s performance was deficient and that he was prejudiced
by counsel’s deficient performance; that is, there is a reasonable probability that but for counsel’s
unprofessional errors the result of the trial or proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the
syllabus. Thus, in order to be successful here, Dickerson must demonstrate that his trial counsel
performed deficiently by failing to timely raise the claim he now presents, and that there was a
reasonable probability of success had counsel timely presented that claim to the trial court.
State v. Mack, 101 Ohio St.3d 397, 2004-Ohio-1526, 805 N.E.2d 1108, ¶ 31.
{¶37} Under some circumstances, the delay between the commission of an offense and an
indictment can constitute a violation of due process of law guaranteed by the federal and state
constitutions. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d 752(1977); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State
v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of the syllabus.
{¶38} Courts apply a two-part test in considering whether preindictment delay constitutes
a due process violation. First, the defendant has the burden to show that he was substantially
and actually prejudiced due to the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d
1199 (1998). However, “proof of actual prejudice, alone, will not automatically validate a due
process claim” as “the prejudice suffered by the defendant must be viewed in light of the state’s
reason for the delay.” Luck at 154, citing Marion. Thus, once the defendant establishes
“actual prejudice,” the second part of the test shifts the burden to the state to produce evidence of
a justifiable reason for the delay. Luck at id. 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. State v. Walls, 96 Ohio St.3d 437,
2002-Ohio-5059, 775 N.E.2d 829, ¶ 51.
{¶39} “The determination of ‘actual prejudice’ involves ‘a delicate judgment based on the
circumstances of each case.’” Id. at ¶ 52, quoting Marion at 325. Thus, prejudice is not
presumed solely because of a lengthy delay. State v. Copeland, 8th Dist. Cuyahoga No. 89455,
2008-Ohio-234, ¶ 13. In determining whether a defendant suffered actual prejudice based on
preindictment delay, courts have generally required a defendant to demonstrate that any missing
evidence or lost witnesses were nonspeculative and exculpatory. See, e.g., State v. McFeeture,
2014-Ohio-5271, 24 N.E.3d 724, ¶ 119 (8th Dist.); State v. Clemons, 2013-Ohio-5131, 2 N.E.3d
930, ¶ 17 (8th Dist.); State v. Stricker, 10th Dist. Franklin No. 03AP-746, 2004-Ohio-3557, ¶ 36.
{¶40} In Luck, the Ohio Supreme Court evaluated the defendant’s claim of actual
prejudice as follows:
The prejudicial factors enumerated by defense counsel (the deaths of witnesses,
the fading memories, and the loss of evidence), when balanced against the other
admissible evidence in this case, show that the defendant has suffered actual
prejudice by the fifteen-year delay in prosecution. Although the state is in
possession of circumstantial evidence which may link the defendant to [the
victim’s] death, it cannot be said that the missing evidence or the dead witness
would not have minimized or eliminated the impact of the state’s circumstantial
evidence. * * * [T]he defendant * * * is obviously prejudiced by not being able to
seek verification of her story from [a deceased witness] and thereby establish
mitigating factors or a defense to the charge against her.
Id. at 157-158.
{¶41} The Ohio Supreme Court used its standard set forth in Luck again in State v.
Whiting, 84 Ohio St.3d 215, 702 N.E.2d 1199 (1998), and found that the defendant suffered
actual prejudice by a 14-year delay in prosecution, when the defendant had been a suspect as a
result of the initial investigation. Both Luck and Whiting were discussed in Dickerson’s written
motion to dismiss.
{¶42} Upon review, we find that counsel was deficient for not timely raising the issue of
preindictment delay and that there was a reasonable probability of success had it been timely
raised.
{¶43} Dickerson had a strong, viable claim of actual prejudice based in particular on the
unavailability of Polivka. The victim got into the car with the defendants at approximately 1:30
a.m.; the hotel room was not rented by Polivka until approximately 4:42 a.m. The victim was
completely unable to remember what had occurred in that time period between getting into the
car and arriving at the hotel. This was of concern to at least one juror, who questioned, “[w]hat
happened in the time period from 1:30 a.m. to 4:42 a.m.?”
{¶44} The state contends that Dickerson would not have been able to demonstrate
prejudice relative to the unavailability of Polivka because if he were still alive, “he would have
been indicted and would have been sitting next to [Dickerson] at the defense table for trial. In
that situation, [Dickerson] would not have had a right to call Polivka as a witness at trial.”
{¶45} During his testimony, Officer Neider stated that, although he had Polivka’s name
and an address for him, he did not attempt to contact him. A juror wondered about that,
questioning “why wasn’t the driver considered an accomplice on the commission of this crime or
these crimes?” Neider answered, “because at the time his involvement as far as he went to the
hotel, rented the room, gave the two black male suspects the keys, and he was no longer involved
in the actual incident in the hotel. He left.” We recognize that the police do not decide
whether to indict, but, nonetheless, the testimony from the state’s own witness does not support
its contention.
{¶46} That aside, even if Polivka had been alive and indicted, the state’s contention that
Dickerson would not have been able to question him is purely speculation — it is possible that
Dickerson could have had the opportunity to question Polivka. For example, if Polivka had
been indicted, he certainly could have pled guilty to any charges and testified against Dickerson
and Jenkins in hopes of consideration of his testimony at sentencing, in which case, Dickerson
would have had the opportunity to cross-examine him. Thus, we are not persuaded by the
state’s logic.
{¶47} On this record, we find that Dickerson had a reasonable probability of success in
demonstrating actual and substantial prejudice. To summarize, a key witness who was with the
victim for a number of hours was unavailable, and the victim herself was unable to account for
the time.
{¶48} Further, under the second part of the preindictment delay test, we find that
Dickerson would have had a reasonable probability of success on his motion given the state’s
reason for the delay. The state contends that the delay was investigative. We find that that
argument reasonably could have failed for two reasons.
{¶49} First, the state contends that the Cleveland Police Department did not do DNA
testing in 1994, so the “case would have gone to trial with no DNA evidence to corroborate the
victim’s claim that sexual activity occurred.” It is true that a representative from the police
department’s lab testified that the department did not do DNA testing in 1994. But it is
common knowledge that such testing was available at that time and thus, if the case had not been
closed, the police department would have sent the evidence to an outside source for testing.
Further, the representative testified that the department started doing DNA testing in either 1999
or 2000.
{¶50} Second, the state contends that the delay was investigative because it was unable to
secure J.R.’s cooperation. The record here demonstrates that J.R. reached out to the police in
the days after the incident by reporting the alleged instance of intimidation by “Mike.” Despite
that attempt by J.R., the state never did anything to further pursue the case. For all practical
purposes, the state closed the case in 1994 after the victim’s meeting with the detective
immediately following the incident, and did not do any further investigation and, then, in 2014,
with the same evidence it had in 1994, decided to commence its prosecution. As the Ohio
Supreme Court warned, compiling evidence, but simply failing or refusing to take action for a
substantial period of time, is not justifiable investigative delay. State v. Walls, 96 Ohio St.3d
437, 454, 775 N.E.2d 829 (2002).
{¶51} In light of the above, we find that counsel was deficient for not timely filing the
motion to dismiss and that there was a reasonable probability that it would have been granted had
it been timely filed.
{¶52} Further, although it was not decided at the time of the pretrial proceedings in this
case, we note this court’s recent en banc decision in State v. Jones, 8th Dist. Cuyahoga No.
101258, 2015-Ohio-2853. In Jones, this court analyzed a claim of preindictment delay under
the “concepts of due process and fundamental justice,” and found that under the circumstances
presented in that case, the defendant suffered actual prejudice due to a nearly 20-year
preindictment delay. Id. at ¶ 47.
{¶53} In Jones, the identity of the defendant was known immediately after the alleged
crime. Here, Dickerson was arrested right after the crime, but was released. Thus, the testing
of the DNA evidence years later in Jones and in this case did nothing to “advance the case,” in
terms of identifying the perpetrator. Id. at ¶ 42. Further, as was the case in Jones, Dickerson
contends that, because of the years delay in prosecuting the case, a key witness was unavailable.
Specifically, here, Polivka, the driver, was deceased. Moreover, the hotel clerk was no longer
available.
III. Conclusion
{¶54} Having found that trial counsel was ineffective by not filing a timely motion to
dismiss on the ground of preindictment delay, the conviction against Dickerson is vacated.
Dickerson’s first assignment of error is overruled, and his third assignment of error is moot.
The state’s assignment of error is moot and therefore overruled.
{¶55} Case remanded to the trial court to vacate appellant’s conviction.
It is ordered that appellee/cross-appellant recover of appellant/cross-appellee 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.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
PATRICIA ANN BLACKMON, J., CONCURS
MELODY J. STEWART, J., DISSENTS WITH
SEPARATE OPINION
MELODY J. STEWART, J., DISSENTING:
{¶56} I disagree with the majority that Dickerson met his burden of proving actual
prejudice for his claim of preindictment delay. Dickerson’s two arguments for actual prejudice
are that Polivka was an essential defense witness who was unavailable to testify at the time of
trial because of his death, and second, that the victim has faded memories. Dickerson has
altogether failed to inform the court what Polivka would have testified to at trial, let alone
explain how that testimony would have been beneficial to him such that a jury would have likely
acquitted him. Indeed, according to the victim’s testimony, Polivka left soon after paying for
the motel room and was not present at any time during the alleged rapes. Therefore, it is
difficult to conclude anything other than that Polivka’s testimony would have been completely
irrelevant to the findings of guilt on the rape charges.
{¶57} Polivka’s testimony might have been relevant to the kidnaping counts because the
state argued that the kidnaping derived from the fact that the men deceived J.R. by luring her into
their vehicle with the promise of giving her a ride home. However, there is nothing in the record
that indicates what Polivka might have said and therefore any exculpatory testimony he might
have given is entirely speculative. As the majority acknowledges supra at ¶ 39, mere
speculation as to what a witness might have said, without more is insufficient evidence of
prejudice. Accord State v. Owens, 8th Dist. Cuyahoga No. 102276, 2015-Ohio-3881, ¶ 4
(stating, “this court has made it clear that speculation does not show actual prejudice[,]” citing
State v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-Ohio-415, ¶ 11; State v. McFeeture,
2014-Ohio-5271, 24 N.E.3d 724, ¶ 120 (8th Dist.)).
{¶58} Furthermore, Dickerson fails to explain how the victim’s faded memories
prejudiced him. At trial, the victim could not remember a three-hour interval between the time
when she got into the car and when she arrived at the motel. If anything, the victim’s faded
memory was more harmful to the state. I therefore dissent from the decision to vacate
Dickerson’s conviction.