State v. Anders

[Cite as State v. Anders, 2018-Ohio-1375.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, : Case No. 17CA3595
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
JASON A. ANDERS, :
RELEASED: 04/04/2018
Defendant-Appellant. :
APPEARANCES:
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Ohio Assistant
Public Defender, Columbus, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Harsha, J.
{¶1} After a jury convicted Jason A. Anders of three counts of rape, the court
sentenced him to an aggregate prison term of 30 years to life. Claiming that his
constitutional right to a speedy trial was violated when the state waited nearly two years
and nine months after the indictment to arrest him, Anders asserts the trial court
incorrectly denied his motion to dismiss the charges. Although this delay was
presumptively prejudicial and triggered a speedy trial analysis, our review of the factors
in Barker v. Wingo, 407 US 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), supports
the trial court’s decision. The delay was not so protracted or egregious that it
warranted granting relief absent a showing of some particularized trial prejudice, which
Anders has not done.
{¶2} Next Anders contends that his convictions for rape were against the
manifest weight of the evidence because the victim’s testimony was inconsistent,
Ross App. No. 17CA3595 2
unreliable, and incredible. We have reviewed the entire record, weighed the evidence,
applied all reasonable inferences, and considered the credibility of witnesses. As a
result we conclude that the jury did not clearly lose its way in resolving conflicts in the
evidence and create such a manifest miscarriage of justice that we must reverse the
rape convictions. The jury was free to credit the child victim’s testimony, which
established beyond a reasonable doubt that Anders committed the three rapes.
{¶3} Therefore, we overrule Anders’s assignments of error and affirm his
convictions and sentence.
I. FACTS
{¶4} In February 2014, the Ross County Grand Jury returned a secret
indictment charging Jason A. Anders with three counts of rape in violation of R.C.
2907.02(A)(1)(b), with the specification that the victim, J.D., was less than ten years old.
The indictment alleged that the rapes occurred in the period from August 2007 through
June 2008. The court issued a warrant on the indictment with special instructions to
enter it into the LEADS1 database as a radius pick-up of 12 and to direct it to Detective
Tony Wheaton of the Ross County Sheriff’s Office for service.
{¶5} Nearly 33 months later in November 2016, the U.S. Marshal’s Office
arrested Anders on the warrant. Less than a month following the service of the warrant,
Anders filed a motion to dismiss the indictment based on a purported violation of his
constitutional right to a speedy trial. He claimed that the post-indictment delay of 33
months between the issuance of the indictment and his arrest violated the Sixth
1LEADS stands for the Law Enforcement Automated Data System. See State v. Chancey, 4th Dist.
Washington No. 15CA17, 2015-Ohio-5585, ¶ 16.
2 Radius 1 refers to a warrant active anywhere in the United States.
Ross App. No. 17CA3595 3
Amendment. He argued: (1) the delay was presumptively prejudicial; (2) the delay was
caused solely by the state’s negligence as it made no efforts to serve him with the
warrant; (3) he timely asserted his right to dismissal of the charges; and (4) his defense
was impaired by the delay because neither he nor his family have any recollection of
ever living at the Bainbridge, Ohio address where the offenses were alleged to have
occurred.
A. Motion to Dismiss
1. The State’s Evidence
{¶6} Detective Wheaton testified at the hearing on the motion to dismiss.
Wheaton indicated he took several initial steps to attempt to contact Anders in October
2012, prior to the indictment. He ran a background check that listed Anders’s address
as 27 West Main St., Mt. Sterling, Ohio. Because that address was in Madison County,
he asked the Madison County Sheriff’s Office to contact Anders and request that he
contact the Ross County Sheriff’s Office. In December 2012 and February 2013, Det.
Wheaton personally travelled to the Mt. Sterling address in unsuccessful attempts to
locate Anders. In July 2013, he again travelled to the Mt. Sterling address, where a new
tenant advised him that Anders had moved out the previous summer; however,
Anders’s mail was still coming there. Det. Wheaton checked with the local post office
and determined that Anders had not left a forwarding address.
{¶7} Det. Wheaton then attempted to contact Anders’s parents at the
Washington Courthouse address supplied by the victim’s father, Shane. Det. Wheaton
twice requested the Washington Courthouse Police Department to contact Anders’s
Ross App. No. 17CA3595 4
parents. Moreover, he personally travelled to the parents’ residence and left notes for
them to contact him; he never received any response.
{¶8} After issuance of the secret indictment in February 2014, Det. Wheaton
again made multiple attempts to locate Anders. In March 2014, Det. Wheaton ran a
check on OLEG,3 but it listed the Mt. Sterling address Wheaton had used
unsuccessfully. Wheaton also maintained contact with Shane, who had informed
Wheaton that he was still communicating with some of Anders’s old friends and family
members in an effort to find him. Again in September 2014 and July 2015, Det.
Wheaton contacted Shane, who had no new information on Anders’s whereabouts.
{¶9} In January 2015, Det. Wheaton ran Anders’s social security number
through LEADS, but it still showed the old Mt. Sterling address. He also checked
Facebook but was unable to find Anders there.
{¶10} In August 2015, Shane telephoned Det. Wheaton to say he was unsure
where Anders was living “but he had heard that he may be living somewhere in
Kentucky.” In August 2015 and January 2016, Det. Wheaton requested a LEADS check
of Anders in both Ohio and Kentucky. The Ohio check came back with the Mt. Sterling
address. The Kentucky LEADS search was not fruitful because Det. Wheaton was not
LEADS certified and Anders’s Kentucky driver’s license was necessary to obtain an
accurate check. Because Det. Wheaton did not know whether Anders had a Kentucky
driver’s license, the dispatch center could not obtain information outside of the Ohio
system other than there were no warrants or convictions for Anders in Kentucky. Det.
Wheaton also checked for any Facebook accounts for Anders again but he was
3OLEG is the Ohio Law Enforcement Gateway. See State v. Smith, 2016-Ohio-5062, 70 N.E.3d 150, ¶
11 (4th Dist.).
Ross App. No. 17CA3595 5
unsuccessful. Again Wheaton talked to Shane, who could not provide any information
other than he was still hearing that Anders was living somewhere in Kentucky.
{¶11} In September 2016, the U.S. Marshal’s Office contacted the Ross County
Sheriff’s Office and asked if it needed assistance in locating any individuals with
outstanding warrants. The sheriff’s office gave the warrant for Anders to the U.S.
Marshal’s Office for service. In October or November 2016, the U.S. Marshal’s Office
located Anders in Kentucky and arrested him.
{¶12} On cross-examination Det. Wheaton acknowledged that he had not tried
to contact the IRS or the Kentucky Bureau of Motor Vehicles to locate Anders.
However, he continued unsuccessfully to search additional social media outlets like
Twitter. And he had contacted Anders’s former Ohio employer, who provided the same
Mt. Sterling address.
2. The Defense Testimony
{¶13} Anders testified that from the dates of the alleged rapes in 2007-2008 until
his arrest, he lived in three different places in Ohio—the Moxley Road, Bainbridge
house where the crimes allegedly occurred, an apartment in Mt. Sterling, and his wife’s
brother’s residence in Washington Courthouse—as well as three different places in
Kentucky. He got married before he moved to Kentucky, worked at two different jobs
there, and made no effort to conceal where he was living. Anders had no idea he had
an outstanding warrant for his arrest, so he had no reason to hide.
{¶14} At the conclusion of the hearing the trial court ruled from the bench and
denied the motion.
B. Jury Trial
Ross App. No. 17CA3595 6
{¶15} The case proceeded to a jury trial, which revealed that Shane worked with
Anders and in October 2007, they decided to move into a home together on Moxley
Road in Bainbridge, Ohio. Shane’s family included his wife and two sons, J.D. and D.D.
In the winter of 2007-2008, when J.D. was six years old and in kindergarten, he lived at
the Bainbridge home.
1. The State’s Case
{¶16} J.D. testified that his parents slept in an upstairs bedroom and he and his
brother slept in Anders’s bedroom on the first floor, although they were supposed to
sleep on couches in the living room. According to J.D., he slept in the bed with Anders
and his brother slept on the couch in that bedroom.
{¶17} J.D. testified about the following incidents of inappropriate sexual behavior
that winter. In the first incident J.D. was playing with Batman and Superman action
figures in Anders’s bedroom when Anders stuck his penis in J.D.’s mouth for a few
minutes. J.D. stopped because it left a “bad taste” and he was choking. Anders then
lay on his back on his bed and told J.D. to sit on his penis “like a toilet.” Anders put a
wet substance on his penis, saying that it might help, and then Anders moved his penis
in and out of his butt, for a few minutes. Upon stopping, Anders told J.D. not to tell his
father, Shane. J.D. testified that Anders’s anal rape hurt and caused him to bleed
twice.4
{¶18} In the second incident about a week later, Anders drove J.D. around in his
car. On the way back home after J.D. told Anders to go faster, Anders stopped the car
4 Although J.D. testified about two separate rapes on this first date, one involving oral intercourse and the
other involving anal intercourse, the state eventually submitted the case to the jury on only the anal rape
that had occurred that day because it had charged Anders with only three rapes, not four.
Ross App. No. 17CA3595 7
in the middle of the road, exposed his penis, put it in J.D.’s mouth, and said “suck on
this.” After 20 seconds, J.D. stopped because “it tasted nasty.”
{¶19} In the third incident about a month or two after the second one, J.D., who
was sleeping on the bed in Anders’s bedroom, woke up to find Anders sucking his
penis. Anders stopped after about a minute, and he told J.D. not to tell his father.
{¶20} Sometime after these incidents occurred, Anders and J.D.’s family moved
to separate places. J.D. testified he did not initially disclose these incidents because he
was scared. In 2008 or 2009, when Anders, Shane, and J.D. were in the same place,
Shane asked J.D. if Anders had ever touched him inappropriately. J.D. said no
because Anders was present, causing J.D. to be scared. When he was in fourth-grade,
J.D. finally told his mother that Anders had abused him, but she did not tell law
enforcement officers about it. In September 2012, J.D. told his cousin, Doug, who told
J.D.’s father, Shane, about it. Shane took J.D. to the sheriff’s office to report the abuse,
and subsequently the Child Protection Center interviewed J.D.
2. The Defense Case
{¶21} Anders testified that he met Shane when they were both working at YUSA.
He met the rest of Shane’s family when Shane invited Anders over for a cookout. The
family was then living in an apartment so Anders and Shane decided to move into a
house together to save money. Anders stated that he took the downstairs bedroom and
that Shane’s family all stayed upstairs. Anders denied that J.D. ever slept in his room.
He recalled that sometimes the boys were left at home with him and that he took them
fishing and to McDonald’s. Anders’s parents lived close by, and they sometimes took
care of the boys too.
Ross App. No. 17CA3595 8
{¶22} Anders recalled there was tension over a vehicle trade and it was more
severe than Shane described. Anders claimed that it was an “even trade,” but that
Shane later determined he wanted money in addition to the vehicle. According to
Anders the relationship between the two of them soured “quite a bit” and they had a
heated discussion over the money issue.
{¶23} Anders ultimately left the home because he didn’t like being around
domestic disputes between Shane and his wife, who argued frequently over money.
Life in the house became more chaotic. But leaving the house still did not resolve the
situation with the truck, so eventually Anders gave the truck back to Shane to avoid any
further issues. However, that didn’t stop Shane from continuing to demand money.
{¶24} When asked about J.D.’s allegations and testimony, Anders stated
unequivocally that none of that story ever happened. He also stated that though he
visited with Shane and his family periodically after moving out, Shane never asked
Anders whether he had abused J.D.
3. The Verdicts
{¶25} At the conclusion of the trial the jury returned verdicts finding Anders guilty
of all three rapes. The trial court sentenced Anders to an aggregate prison sentence of
30 years to life.
II. ASSIGNMENTS OF ERROR
{¶26} Anders assigns the following errors for our review:
I. JASON’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED WHEN THE
STATE WAITED TWO YEARS AND NINE MONTHS AFTER THE
INDICTMENT TO ARREST HIM.
II. JASON’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
Ross App. No. 17CA3595 9
III. LAW AND ANALYSIS
A. Constitutional Right to Speedy Trial
{¶27} In his first assignment of error Anders asserts that the delay of 33
months between the indictment and his arrest violated his constitutional right to a
speedy trial. Anders contests the trial court’s denial of his motion to dismiss, which was
based on the purported violation of the Sixth Amendment.
{¶28} “The Sixth Amendment to the United States Constitution and Article I,
Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy
trial.” State v. Doughman, 2017-Ohio-4253, __ N.E.3d __, ¶ 17 (4th Dist.), citing State
v. Blackburn, 118 Ohio St.3d163, 2008-Ohio-1823, 887 N.E.3d 319, ¶ 10. The Due
Process Clause makes the Sixth Amendment speedy-trial provision applicable to the
states. State v. Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶ 29, citing Klopfer v. North
Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
{¶29} Appellate review of a trial court's decision on a motion to dismiss for a
violation of the speedy trial requirements presents a mixed question of law and fact.
State v. James, 4th Dist. Ross No. 13CA3393, 2014-Ohio-1702, ¶ 23; State v. Brown,
131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist. 1998). Thus, appellate courts will
defer to a trial court's findings of fact as long as competent, credible evidence supports
them. Brown, 131 Ohio App.3d at 391, 722 N.E.2d 594. Appellate courts then
independently determine whether the trial court properly applied the law to the facts. Id.When we review the legal issues presented in a speedy trial claim, we must strictly
construe the relevant statutes against the state. Id., citing Brecksville v. Cook, 75 Ohio
St.3d 53, 57, 661 N.E.2d 706, 709 (1996).
Ross App. No. 17CA3595 10
{¶30} To determine whether a defendant has been deprived of constitutional
speedy-trial rights, we must balance four factors: (1) the length of the delay, (2) the
reason for the delay, (3) the defendant’s assertion of a speedy-trial right, and (4)
prejudice to the defendant. State v. Triplett, 78 Ohio St.3d 566, 568, 679 N.E.2d 290(1997), citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed2d 101 (1972);
Doughman at ¶ 18. None of the factors is per se determinative of the issue; instead, a
court considers the factors collectively. See Spencer at ¶ 30, citing Barker at 532.
Unfortunately, the Supreme Court’s formulation of the Barker test compels courts to
approach these cases on an ad hoc basis. See Vermont v. Brillon, 556 U.S. 81,91, 129
S.Ct.1283, 173 L.Ed.2d 231 (2009).
{¶31} In promulgating its ad hoc balancing test in Barker, the Supreme Court
gave minimal guidance to courts as to the relative weights to be assigned within and
among the four elements. This minimal guidance has led to inconsistent analyses—
straight-balancing and weighted-balancing—and results in resolving constitutional
speedy-trial claims. As one commentator recently stated, “[t]he consequence of the
Barker [sic] court’s broad language and conflicting ideas has been widely varying
application of the Barker test. Yet ‘[t]he complex nature of the Barker v. Wingo
balancing test makes it impossible to evaluate the court’s results for consistency.’
Commentators have expressed a variety of concerns about how courts misapply the
Barker factors to the detriment of defendants.” (Footnotes omitted.) See Osnowitz,
Demanding a Speedy Trial: Re-Evaluating the Assertion Factor in the Barker v. Wingo
Test, 67 Case W.Res.L.Rev. 273, 284 (2016); see also Brooks, A New Speedy Trial
Standard for Barker v. Wingo: Reviving a Constitutional Remedy in an Age of Statutes,
Ross App. No. 17CA3595 11
61 U.Chi.L.Rev. 587 (1994) (proposing a new speedy-trial “motive test,” focusing on the
reason for trial delays because the straight-balancing and weighted-balancing
approaches to the Barker test that federal and state courts have adopted “depend on
the flawed premise that society and individual defendants have inherently conflicting
interests in the speed with which a defendant is brought to trial”); Billings v. Bruce, 965
P.2d 866, ¶ 50-54 (Mont.1998), citing Brooks in adopting a new analysis including
features of both the straight-balancing and motive tests, overruled in State v. Ariegwe,
167 P.3d 815, ¶ 106 (Mont.2007). Despite these flaws in the ad hoc balancing system,
precedent from both the United States and Ohio Supreme Courts requires us to forge
ahead. Brillon, 556 U.S. 81, 91, 129 S.Ct. 1283, 173 L.Ed.2d 231; State v. Adams, 144
Ohio St.3d 42, 2015-Ohio- 3954, 945 N.E.3d 127, ¶ 88.
1. Length of the Delay
{¶32} “The United States Supreme Court has recognized that the first factor,
length of the delay, involves a double inquiry.” State v. Spencer, 2017-Ohio-456, 84
N.E.3d 106, ¶ 31 (4th Dist.), citing Doggett v. United States, 505 U.S. 647, 651, 112
S.Ct. 2686, 120 L.Ed.2d 520 (1992). First, an accused must show that the length of the
delay was “presumptively prejudicial” to trigger the Barker four-part balancing analysis.
Id. at 651-652. Second, once the Barker analysis is triggered, the court must readdress
the delay and balance it against the three remaining factors. Id. at 652.
{¶33} Courts generally find post-accusation delay to be presumptively prejudicial
enough to trigger the Barker analysis when it approaches one year. Spencer at ¶ 32,
citing Doggett at fn. 1. In February 2014, the Ross County Grand Jury secretly indicted
Ross App. No. 17CA3595 12
Anders, who was not served with the warrant and arrested until November 2016, i.e.,
nearly 33 months later. Consistent with our precedent, we find that the 33-month delay
between Anders’s indictment and his arrest on the warrant was presumptively
prejudicial enough to trigger the entire Barker analysis.
{¶34} Next we readdress the length of the delay, in conjunction with the other
factors. In his brief Anders offers little comment other than to acknowledge the court
found the threshold of presumptive prejudice occurred in the 33-month delay between
the indictment and his arrest. He does imply that the court didn’t give enough weight to
the delay when balancing it with the remaining Barker factors. In pronouncing its ruling
from the bench (there is no subsequent entry in the record memorializing the ruling), the
trial court seemed to place the length of the delay somewhere below the level of being
egregious, but it is difficult to tell from reading the transcript of the hearing. The court
did conclude that the delay was not so long or intolerable as to be outcome
determinative by itself. Because Anders’s brief focuses upon the length of the delay as
it affects whether he needs to affirmatively show actual prejudice, we will do likewise in
our review. However, we do note our agreement with the trial court’s apparent
conclusion that this delay does not reach an egregious level like that in Doggett. But
the length of the delay does weigh in Anders’s favor.
{¶35} Although Anders claims that the trial court erred by not applying the
presumption of prejudice associated with the 33-month delay to obliterate the need for
an affirmative showing on his part, we reject his claim because presumptive prejudice
alone does not establish a speedy-trial violation. Here the trial court considered the
length of the delay in its balancing of the pertinent factors. See State v. Triplett, 78 Ohio
Ross App. No. 17CA3595 13
St.3d at 570, 679 N.E.2d 290, quoting Doggett at 656 (“while such presumptive
prejudice cannot alone carry a Sixth Amendment claim, ‘it is part of the mix of relevant
facts, and its importance increases with the length of delay’ ”). We will revisit Anders’s
focus in reviewing the prejudice factor of the analysis.
2. Reason for the Delay
{¶36} Anders claims that the trial court erred by determining the state’s
negligence was not the reason for the delay. He argues the trial court’s determination
of this factor was erroneous because it: attempted to assign blame to him for moving;
without any evidentiary support, found that Det. Wheaton did more work than many
other officers would have done; and excused the fact that Wheaton failed to do more to
follow up the lead about Anders’s potential presence in Kentucky.
{¶37} The trial court found that the state was not to “blame” for the delay, i.e.,
that it did not intentionally or negligently cause the 33-month delay in serving Anders
with the warrant on the indictment.5 In Doggett the Supreme Court of the United States
instructed courts subsequently reviewing the second Barker factor to afford
considerable deference to the trial court’s finding on the reason for the delay. Doggett
at 652. Accordingly, we follow that guidance here and conclude competent, credible
evidence supports the court’s factual finding.
{¶38} Det. Wheaton testified at the hearing on the motion to dismiss that he
conducted several LEADS and OLEG checks, searched social media sites, contacted
5 Anders seems to take issue with the trial court apportioning “blame” in its analysis of the issue.
However, the Supreme Court of the United States has utilized the term “blame” when addressing the
reason for the delay. See Doggett, 505 U.S. at 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (“whether the
government or the criminal defendant is more to blame for th[e] delay”), cited with approval in Brillon, 556
U.S. at 90, 129 S.Ct. 1283, 173 L.Ed.2d 231.
Ross App. No. 17CA3595 14
sheriff’s offices and a post office, travelled personally to Mt. Sterling and Washington
Courthouse, and talked with J.D.’s father, Shane, in his unsuccessful attempts to locate
Anders.
{¶39} Although Det. Wheaton acknowledged Shane told him in August 2015 he
“heard that” Anders “might” be living somewhere in Kentucky, the trial court reasonably
concluded that, “the detective did not have concrete evidence or proof that [Anders] had
even gone to Kentucky.” Even without more detailed evidence, Det. Wheaton
requested a Kentucky LEADS check, continued searching social media sites, and kept
contacting Shane.
{¶40} Under these circumstances, the trial court’s factual finding that the state
was not negligent is supported by competent, credible evidence. This is clearly not a
case where the sheriff’s office stood by idly, doing nothing until a defendant is
fortuitously arrested by another agency. The proper question is not whether the state
could have done more, but rather whether it did enough to be reasonable, i.e. not
negligent. Up to this point the record indicates the state was relatively diligent in its
efforts.
{¶41} Moreover, even if we assume that the state was negligent in failing to
properly follow up on the unverified Kentucky lead, this factor would only weigh slightly
in his favor because the Kentucky tip was made in August 2015; any delay attributable
to not acting on this new information would account for only 15 months of the 33-month
delay. See Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶ 34, quoting Doggett, 505 U.S. at
657, 112 S.Ct. 2686, 120 L.Ed.2d 520 (“ ‘to warrant granting relief, negligence
unaccompanied by particularized trial prejudice must have lasted longer than
Ross App. No. 17CA3595 15
negligence demonstrably causing prejudice’ ”). The 15-month delay from Shane’s
disclosure of the hearsay that Anders might be living somewhere in Kentucky, to the
service of the warrant, “was not so protracted or intolerable as to warrant relief absent
some particularized trial prejudice.” Spencer at ¶ 34, citing State v. Manley, 4th Dist.
Adams No. 97CA637, 1997 W: 451360 (Aug. 6, 1997) (finding that the 29-month delay
caused by the state’s negligence was not so protracted or intolerable as to warrant relief
absent some particularized trial prejudice).
{¶42} Affording Anders the benefit of this assumption, we agree with him that
this factor weighs in his favor, but not to the extent he claims. This factor weighs
minimally for Anders.
3. Anders’s Assertion of Right to Speedy Trial
{¶43} The trial court and the parties agree that Anders timely asserted his
constitutional right to a speedy trial by raising it in his motion to dismiss within a month
after being arrested. This factor weighs in favor of Anders.
4. Prejudice to Anders
{¶44} Looking at the prejudice component, we find no evidence in the record
that Anders suffered any actual prejudice here. “The three interests that the
constitutional speedy-trial right is designed to protect are: (1) to prevent oppressive
pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to
limit the possibility that the defense will be impaired.” State v. Doughman, 2017-Ohio-
4253, __ N.E.3d __, ¶ 23, citing Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d
101. Anders was not incarcerated during the post-indictment delay and he suffered no
anxiety or concern during this period because he was not aware of the pending charges
Ross App. No. 17CA3595 16
raised in the secret indictment. He did not assert any actual impairment of his trial
defense that was attributable to the delay. In his motion to dismiss he simply claimed
he was prejudiced by the delay because neither he nor his family recalled living at the
Bainbridge, Ohio house where the rapes occurred. But he testified at the hearing on the
motion to dismiss, as well as at trial, that he lived at that house during the relevant time
period.
{¶45} Nonetheless, Anders argues that the delay was so protracted that a
presumption of prejudice relieves him of any duty to affirmatively show actual prejudice.
Even if we credit Anders’s claim that Det. Wheaton negligently caused the delay
because of his failure to do more to follow up on the Kentucky residence tip, that
negligence can only account for 15 months of the post-indictment delay. That period is
not so protracted or intolerable to warrant relief absent some showing of particularized
trial prejudice.
{¶46} Courts generally have found such presumptive prejudice to negate any
need for an affirmative showing only in cases where the post-indictment delay lasted at
least five years. See Barker. See also State v. Stevens, 3d Dist. Logan No. 8-14-09,
2014-Ohio-4875, ¶ 24, quoting U.S. v. Serna-Villarreal, 352 F.3d 225, 232 (5th
Cir.2003); State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 29 (1st Dist.).
{¶47} Similarly, in State v. Boyd, 4th Dist. Ross No. 04CA2790, 2005-Ohio-
1228, ¶ 15, 17, we held that a 17-month delay between a defendant’s indictment and
arrest did not violate the defendant’s constitutional right to a speedy trial because it
“was not so protracted or intolerable as to warrant relief absent some particularized trial
prejudice.” In Boyd the defendant had no knowledge of the indictment against him, so
Ross App. No. 17CA3595 17
he could not have suffered anxiety and concern. Nor did he allege that the delay
impaired his ability to defend himself. See also State v. Bailey, 2d Dist. Montgomery
No. 20764, 2005-Ohio-5506 (17-month delay between indictment and arrest did not
violate defendant’s constitutional right to a speedy trial because he was unaware of the
pending indictment until shortly before his arrest and his claim of prejudice was not
credible).
{¶48} Although Anders cites Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120
L.Ed.2d 520, in support of his claim of presumptive prejudice, that case involved an 8 ½
-year delay, which is significantly longer than the less than 3-year delay here. The
delay in Doggett was egregious because it was over six times the 1-year delay
necessary for triggering the Barker analysis. And for six of the 8 ½ years, the
government did practically nothing to find Doggett (it had initially asked a foreign
government to “expel” Doggett back to the U.S.). As the Doggett court noted, the
“tolerance of such negligence varies inversely with its protractedness.” Id. at 657.
Neither the 33-month total delay, nor the 15-month delay assumptively assigned to the
scope of the Kentucky search, reach the level necessary to warrant Ander’s assertion.
{¶49} Therefore, the prejudice factor weighs heavily against Anders.
5. Balancing of the Factors
{¶50} Although the first, second, and third factors weigh in favor of Anders, the
second factor weighs only slightly in his favor and fourth factor weighs heavily against
him. The minimal weight of the second factor is still not enough to carry the day in the
absence of some particularized trial prejudice. After considering the totality of the
circumstances, we conclude that the trial court correctly determined that the state did
Ross App. No. 17CA3595 18
not violate Anders’s constitutional right to a speedy trial. We overrule Anders’s first
assignment of error.
B. Manifest Weight of the Evidence
{¶51} In his second assignment of error Anders contends that the jury verdicts
finding him guilty of three counts of rape were against the manifest weight of the
evidence.
1. Standard of Review
{¶52} In determining whether a criminal conviction is against the manifest weight
of the evidence, we must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses, and determine whether the
trier of fact clearly lost its way in resolving conflicts in the evidence, and created such a
manifest miscarriage of justice that we must reverse the conviction. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio
St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. We are reminded that generally, the
weight and credibility of evidence are to be determined by the trier of fact. See State v.
Kirkland, 140 Ohio St.3d 73, 15 N.E.3d 818, 2014-Ohio-1966, ¶ 132.
2. The Victim’s Testimony
{¶53} Anders argues that the jury’s guilty verdicts were against the manifest
weight of the evidence because J.D.’s testimony was inconsistent, unreliable, and
incredible. He cites purported inconsistencies, including: (1) J.D. testifying that he only
rode with Anders once in his car, but Shane testified that J.D. took multiple trips with
Anders (2) J.D. and Shane testifying that J.D.’s cousin, Doug, reported the abuse to the
police, but two detectives testified that Doug’s name is not included in investigative
Ross App. No. 17CA3595 19
records; (3) J.D. testifying that he never told his father about the abuse, but later
testifying that he did; (4) J.D. testifying that he told his father about the abuse after he
told a child-protection worker, when he actually told Shane about it before then; and (5)
J.D. testifying that he and his brother slept in Anders’s bedroom because they did not
want to sleep on the floor, but J.D. later testified that they were supposed to sleep on
couches in the living room. He also argues that J.D.’s testimony was largely
uncorroborated, and that potential key witnesses, like the child-protection worker who
interviewed J.D. about the abuse, were not called to testify.
{¶54} J.D.’s testimony was consistent on most of the details of the three rapes—
anal intercourse in Anders’s bedroom, oral intercourse performed in Anders’s car, and
oral intercourse performed by Anders in Anders’s bedroom. And Shane corroborated
that he had learned about the abuse after J.D. reported the abuse to his ex-wife and to
his nephew. Anders’s defense appeared to primarily rely upon the animus between
Anders and Shane that resulted from an exchange of their vehicles. But Shane testified
that he remained friends with Anders after they moved from the Bainbridge house, and
that they continued to see each other.
{¶55} “ ‘A jury, sitting as the trier of fact, is free to believe all, part or none of the
testimony of any witness who appears before it.’ ” State v. Reyes-Rosales, 4th Dist.
Adams No. 15CA1010, 2016-Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto
No. 12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on these evidentiary
weight and credibility issues because it is in the best position to gauge the witnesses'
demeanor, gestures, and voice inflections, and to use these observations to weigh their
credibility. Id.; State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416, at ¶ 18.
Ross App. No. 17CA3595 20
{¶56} The jury was free to credit J.D.’s testimony, which established the three
rapes, and to discount Anders’s abbreviated denial. Notwithstanding its
inconsistencies, J.D.’s testimony is not so incredible as to be unworthy of the jury’s
acceptance of it. We have reviewed the entire record, weighed the evidence and all
reasonable inferences, and considered the credibility of witnesses. We conclude that in
resolving conflicts in the evidence, the jury did not clearly lose its way and create such a
manifest miscarriage of justice that we must reverse the rape convictions. Therefore,
we overrule Anders’s second assignment of error.
IV. CONCLUSION
{¶57} The trial court properly denied Anders’s motion to dismiss, and the jury’s
verdicts finding him guilty of three rapes are supported by the manifest weight of the
evidence. Having overruled Anders’s assignments of error, we affirm his convictions
and sentence.
JUDGMENT AFFIRMED.
Ross App. No. 17CA3595 21
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Hoover, P.J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment and Opinion as to Assignment of Error II;
Concurs in Judgment Only as to Assignment of Error I.
For the Court
BY: ________________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.