State v. Berry

[Cite as State v. Berry, 2021-Ohio-2588.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 109873
v. :
ALBERT BERRY, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 29, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-592209-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
Erika B. Cunliffe, Assistant Public Defender, for appellee.
EILEEN A. GALLAGHER, J.:
Plaintiff-appellant, the state of Ohio, appeals from the decision of the
Cuyahoga County Court of Common Pleas granting the motion to dismiss filed by
defendant-appellee Albert Berry based on the state’s failure to commence
prosecution within the applicable statute of limitations. The state contends that the
trial court erred in dismissing the indictment on statute of limitations grounds
because it failed to consider (1) “law enforcement efforts to locate defendant after
the indictment” was filed and (2) “defendant’s conduct in avoiding apprehension”
in determining whether the prosecution was timely commenced under R.C. 2901.13.
For the reasons that follow, we affirm.
Procedural History and Factual Background
On December 30, 2014, a Cuyahoga Grand Jury charged Berry in a
five-count indictment: two counts of rape (Counts 1 and 2), two counts of attempted
rape (Counts 3 and 4) and one count of kidnapping with a sexual motivation
specification (Count 5). The charges arose from the alleged sexual assault of S.S. on
January 8, 1995.
On September 11, 2017, at the conclusion of a bench trial, Berry was
found guilty of one count of rape in violation of R.C. 2907.02(A)(1)(c) (Count 1) and
one count of kidnapping in violation of R.C. 2905.01(A)(4) with a sexual motivation
specification (Count 5). The trial court granted Berry’s Crim.R. 29 motion as to
Counts 2 and 3 and found Berry not guilty of attempted rape as charged in Count 4.
The rape and kidnapping counts merged for sentencing, and the state elected to have
Berry sentenced on the rape count. Berry was sentenced to three years in prison and
classified as a sexually oriented offender. The trial court also imposed five years of
mandatory postrelease control.
Berry appealed, arguing that he was denied effective assistance of
counsel due to his trial counsel’s failure to file a motion to dismiss based on the
statute of limitations or preindictment delay. On appeal, this court found that
Berry’s trial counsel’s performance was deficient and that there was a reasonable
probability Berry’s case would have been dismissed if his trial counsel had filed a
motion to dismiss the indictment. This court vacated Berry’s convictions and
remanded the case with instructions for the trial court to appoint Berry new counsel
and to allow Berry to file a motion to dismiss the indictment. State v. Berry, 8th
Dist. Cuyahoga No. 106415, 2018-Ohio-4855, ¶ 21.
The state filed an application for reconsideration and en banc
consideration pursuant to App.R. 26, arguing that the panel’s decision conflicted
with other decisions from the district that “have deemed compliance with Crim.R. 4
as satisfying reasonable diligence.” This court denied the state’s application.
The state appealed to the Ohio Supreme Court. On August 21, 2019,
the Ohio Supreme Court accepted the state’s jurisdictional appeal. State v. Berry,
2019-Ohio-3263, 129 N.E.3d 470. The proposition of law accepted for review was
whether “[w]here service of a summons is in compliance with Crim.R. 4(D), a
threshold showing has been made that reasonable diligence has been made to serve
the summons.”
On February 3, 2020, the state filed a motion to dismiss the appeal,
acknowledging that “Crim.R. 4(D)’s provisions on allowing service by commercial
carrier did not go into effect until July 1, 2018” and that “[t]he fact that the summons
in question was served, in this case, prior to July 1, 2018 undermines the state’s
arguments with respect to the proposition of law accepted for review.” On
February 5, 2020, the Ohio Supreme Court granted the state’s motion and dismissed
the appeal. State v. Berry, 2020-Ohio-366, 138 N.E.3d 1177.
Berry’s Motion to Dismiss the Indictment
Berry was assigned new counsel, and on February 19, 2020, he filed a
motion to dismiss the indictment on the grounds that (1) continued prosecution of
the case violated the applicable statute of limitations and (2) Berry had been subject
to unjustifiable preindictment delay. The state opposed the motion.
On July 8, 2020, the trial court held an evidentiary hearing on the
motion. At the hearing, the state presented testimony from two witnesses: Kenneth
Riolo, an investigator with the Cuyahoga County Prosecutor’s Office’s Sexual Assault
Kit Task Force, and Detective Nicholas Riegelmayer, formerly assigned to the
Fugitive Task Force for the Warrant Apprehension Unit of the Cuyahoga County
Sheriff’s Department (the “fugitive unit”). The parties also introduced transcripts of
the testimony of several witnesses from the trial. A summary of the relevant
evidence presented at the hearing follows.
Investigation of the Incident and Prior Arrest
Three days after the incident, on January 11, 1995, S.S. reported the
incident and went to the hospital, where evidence was collected for a rape kit. Police
interviewed S.S. regarding the incident the following day. S.S. identified a man —
then known to her as “Doonti” — as the perpetrator. Approximately one month
later, “Doonti” ran into S.S.’s apartment in an attempt to hide from police, who were
pursuing him in an unrelated matter. When the police arrived at her apartment, S.S.
informed them that this was the man who had sexually assaulted her a month
earlier. “Doonti” was then identified as Berry, and police arrested him. A police
report was filed in 1995 naming Berry as a suspect in the sexual assault of S.S.
At that time, S.S. was “tangled up” in a drug case involving a former
boyfriend, and she informed police that she did not want to pursue charges against
Berry. Berry was released from jail, and no further action was taken in the case until
2012.
In October 2012, S.S.’s rape kit was submitted for testing. Based on a
CODIS “hit,” the DNA profile obtained from testing the rape kit was initially thought
to be a match with a man from Cincinnati. However, it was later determined that
that individual had never been in Cleveland and that his DNA was not, in fact, a
match to the DNA from the rape kit.
After S.S. spoke with police in 1995, she did not hear anything further
about the case until 2014. In April 2014, an agent from the Bureau of Criminal
Investigation (“BCI”) contacted S.S. and showed her a photo array that included a
photograph of the Cincinnati man identified from the CODIS hit. Berry was not
included in that photo array. S.S. did not identify anyone in that photo array as her
assailant.
On September 14, 2014, Investigator Riolo was assigned to the case.
He testified that he reviewed the case file, including the 1995 police report in which
Berry had been identified as the suspect. He then began looking for Berry and S.S.
to get their “side[s] of the story” and “see where [he] went from there.” Investigator
Riolo indicated that on November 20, 2014, he went to an address he believed to be
Berry’s residence, 16210 Arcade Avenue and left his card. He stated that Berry’s
mother called him back and said that she had not seen Berry, that he did not live
there, that he lived with “girlfriends around town” and that she did not know where
he was but that she would let Berry know Investigator Riolo was looking for him.
On November 25, 2014, Riolo located and reinterviewed S.S. and
prepared a photo array for S.S. that included Berry. S.S. identified Berry as her
assailant in the photo array. Investigator Riolo then continued his efforts to locate
Berry. He stated that he learned that Berry had an outstanding warrant for failure
to pay child support and that he had children with two different women — Quiniece
Banks and Kimberly Woods. Investigator Riolo obtained their addresses1 and spoke
with the women on December 17, 2014. Both of the women lived in Euclid, Ohio.
Investigator Riolo testified that he informed both Banks and Woods
that he needed to speak with Berry and that “[a]t that point[,] he wasn’t in any
trouble,” he just wanted to interview him. Investigator Riolo stated that Banks told
him that she did not know where Berry was and that she could not give him an
1 Investigator Riolo testified that on December 16, 2014, he had one of the BCI
analysts who worked with his task force “run Mr. Berry for any addresses” and that she
“did a workup.” There is no evidence in the record as to what this workup entailed or
what information was gleaned from it, other than that Berry had “missed a court date or
something,” that Berry had an outstanding warrant for failure to make child support
payments and the names and addresses of the mothers of Berry’s children.
address or telephone number for Berry but that “he comes by, and he sees the kids.”
Investigator Riolo testified that Woods told him that she had filed “nonsupport
papers” against Berry and that Berry was living with Banks. Woods gave
Investigator Riolo two telephone numbers for Berry. Investigator Riolo stated that
he called both numbers but “didn’t get an answer on either one.” Investigator Riolo
stated that he left his card with both women and that they both said they would let
Berry know Investigator Riolo was looking for him.
Investigator Riolo stated that because he was never able to locate
Berry, the state “went forward and indicted” Berry. Berry was indicted less than two
weeks later. Investigator Riolo stated that he sought a warrant “as part of the
indictment” because “that was the only way * * * I would be able to recover some
DNA from Mr. Berry” because “[h]e didn’t have DNA in the system at that time * * *
plus I had enough probable cause to have him arrested based on the identification
of [S.S.].”
Banks, who had two children with Berry, testified that Berry had lived
with her “on and off” from 1998 until 2014 or 2015. She stated that, at one point,
police came to her house looking for Berry and informed her that he was being
investigated for a rape. She testified that she could not remember whether Berry
was living with her at that time because they were “broken up for a while” and he
left, then he came back and eventually their relationship ended. She testified that
she told Berry that the police were looking for him.2 According to Banks, when Berry
left Banks, he lived at “his girlfriend’s house.” Although they were no longer
together, Berry visited his children “sometimes.” Banks testified that, to her
knowledge, Berry was “always in town.” Investigator Riolo testified that he had no
information that Berry had ever left Cuyahoga County.
The Indictment, Summons and Warrant and Efforts to Execute
Same
A warrant was issued on the indictment on December 30, 2014. The
warrant listed an address of 16210 Arcade Avenue, Cleveland, Ohio 44110, for Berry.
The trial court docket indicates that on same day, a summons was sent to Berry via
Federal Express at a different address, 3002 E. 71st Street, Cleveland, Ohio 44104,
and that the capias was “printed and sent to sheriff” on December 31, 2014.
On January 14, 2015 — the date initially scheduled for Berry’s
arraignment — a notation was made on the docket, stating “original capias remains
from 12/30/2014.” A notation was made on the docket the following day, indicating
that the summons that had been sent out for service on December 30, 2014, had
been returned on January 6, 2015 and that there had a “failure of service” on Berry
due to a “bad address.”3 The docket does not reflect any subsequent attempts to
serve the summons on Berry.
2 It is unclear from the record when Banks told Berry police were looking for him.
3 Although the docket includes entries relating to the service and failure of service
of the summons, documentation showing that the summons was sent and the Federal
Express receipt showing a failure of service are missing from the file in this case.
Investigator Riolo testified that on January 14, 2015, Berry called and
left a voicemail message for him. According to Investigator Riolo, Berry stated that
he had seen a “wanted poster” identifying him and was calling to talk to Investigator
Riolo. Investigator Riolo stated that Berry did not leave a number and that his caller
ID indicated that the call came from an anonymous number. Investigator Riolo did
not record, transcribe or otherwise preserve the voicemail message “other than to
put it in [his] notes.” Investigator Riolo stated that he did not know to what Berry
was referring because he “had nothing to do” with looking for Berry after the arrest
warrant was issued in December 2014.
Following his indictment, police attempted to locate Berry on two
occasions. Cuyahoga County Sheriff “duty reports” indicate that on February 10,
2015, at 10:59 a.m., police went to 16210 Arcade Avenue and spoke with Berry’s
mom. “[N]o additional info” was obtained. More than a year later, on March 22,
2016, police made a second attempt to locate Berry. At 5:42 a.m., they went 1720
Allandale Avenue in East Cleveland. There is nothing in the record regarding the
source of this address or why it was believed to have been associated with Berry. It
was a “bad address”; the resident said that she did not know Berry. At 5:55 a.m.,
police returned to 16210 Arcade Avenue. Detective Riegelmayer testified that 16210
Arcade Avenue was “still the family’s address.”4 He stated that an officer spoke with
Berry’s father, who said he had not seen Berry in months, and also spoke with a
4 Detective Riegelmayer testified that he had no role in any effort to apprehend
Berry prior to January 8, 2015.
“family friend,” who stated he had seen Berry at the home the previous Sunday.
Detective Riegelmayer had no information regarding any other efforts to locate
Berry.
On or about December 7, 2016, Berry was arrested following a
December 5, 2016 traffic stop for failure to stop at a stop sign. At the traffic stop,
Berry initially gave police a false name, Gregory Steel, and a false date of birth. He
was cited for driving under suspension, failure to stop at a stop sign and giving false
information at a traffic stop.5
The Trial Court’s Ruling on the Motion to Dismiss
On July 15, 2020, the trial court issued an order granting Berry’s
motion to dismiss on statute of limitations grounds. The trial court explained its
ruling as follows:
The court finds that the relevant time line is as follows: the incident
occurred on January 8, 1995. The defendant was subsequently indicted
on December 30, 2014. The initial arraignment, to which the
defendant failed to appear[,] was held on January 14, 2015. Defendant
was subsequently arrested December 7, 2016, 22 years after the
incident. At the hearing, the court specifically notes that the testimony
of Inv. Riolo was simply a reiteration of the testimony taken by the
court at trial several years earlier. The testimony of Inv. Riolo added
no new relevant evidence to the issue of the statute of limitations
analysis rendered by the Eighth District in State v. Berry, 8th Dist.
Cuyahoga No. 106415, 2018-Ohio-4855. Further, the court finds that
the testimony of Det. Riegelmayer [is] inconsequential as the
investigation performed by the Sheriff’s Department occurred after the
20 year statute of limitations had already expired. Possibly, had these
5
In addition to the witness testimony, the state also introduced several other
exhibits, including copies of the capias on the indictment, the Cuyahoga County Sheriff’s
Office duty reports dated February 10, 2015 and March 22, 2016, Berry’s December 5,
2016 traffic citation and a printout of the municipal court docket relating to Berry’s
December 5, 2016 traffic citation.
steps been taken prior to the expiration of the statute of limitations, the
court could have found that the state did, in fact, exercise the
reasonable diligence required by law. See R.C. 2901.13(A)(3).
However, because the related events testified to at the hearing took
place after the expiration of the statute of limitations, said events
cannot be considered as evidence that reasonable diligence occurred
prior to the expiration of the statute of limitations o[n] January 8,
2015.6
The state appealed, raising the following single assignment of error
for review:
The trial court erred in dismissing this case because the defendant’s
prosecution did not violate the statute of limitations.
Law and Analysis
The state argues that the trial court erred in dismissing the indictment
on statute of limitations grounds because the trial court (1) “failed to consider law
enforcement efforts to bring Berry to justice, that occurred after the natural
expiration of the statute of limitations” and (2) “failed to consider that the statute of
limitations was tolled as of the date the indictment was filed * * * because of the
reasonable efforts that were undertaken to locate and apprehend Berry on the
6 Because the trial court found that the state did not commence prosecution within
the statute of limitations, it did not consider Berry’s argument that there was unjustifiable
preindictment delay. There is, however, considerable evidence in the record to support
that argument, particularly given that Berry’s identity was known to police in 1995, police
arrested Berry in February 1995, the state apparently ceased all investigation of the crime
shortly after the incident until late 2012 when S.S.’s rape kit was submitted for testing, no
new evidence linking Berry to the crime was uncovered before the state indicted Berry in
2014 and key witnesses were allegedly lost or unavailable as a result of the state’s
inexplicable delay in prosecution. Because the trial court did not address that issue below
and the parties did not address the issue in their appellate briefs, we do not address it
further here.
indictment.” Alternatively, the state argues that its prosecution of Berry was timely
due to Berry’s efforts to evade prosecution.
Standard of Review
When reviewing a trial court’s decision on a motion to dismiss for
failure to comply with the statute of limitations, we accord deference to the trial
court’s findings of fact, but engage in a de novo review of the trial court’s legal
conclusions and its application of the facts to the law. See, e.g., Cleveland v.
Bermudez, 8th Dist. Cuyahoga No. 109018, 2020-Ohi0-4296, ¶ 6. De novo review
requires an independent review of the trial court’s decision without any deference
to the trial court’s determination. State v. Kehoe, 8th Dist. Cuyahoga No. 106385,
2018-Ohio-3589, ¶ 17.
Criminal Statute of Limitations
In this case, the criminal conduct at issue occurred in 1995. At that
time, the statute of limitations for rape and kidnaping was six years. By amendment
effective March 9, 1999, the Ohio General Assembly extended the statute of
limitations for rape and kidnapping from 6 to 20 years. See former R.C.
2901.13(A)(3)(c) (prosecution for a violation of R.C. 2907.02 and 2905.01 “shall be
barred unless it is commenced within twenty years after the offense is committed”).
The amendment applied retroactively to offenses committed prior to the
amendment, provided that the statute of limitations had not yet expired by March
9, 1999. See State v. Copeland, 8th Dist. Cuyahoga No. 89455, 2008-Ohio-234, ¶ 11-
12.
The six-year statute of limitations applicable to the offenses at issue
had not yet expired when the General Assembly’s amendment of R.C. 2901.13
became effective in March 1999. Accordingly, the 20-year statute of limitations
applies here.7
A criminal statute of limitations “limit[s] exposure to prosecution to
a certain fixed period of time following the occurrence of those acts the General
Assembly has decided to punish by criminal sanctions.” State v. Climaco, Climaco,
Seminatore, Lefkowitz & Garofoli Co., L.P.A., 85 Ohio St.3d 582, 586, 709 N.E.2d
1192 (1999). It is “‘designed to protect individuals from having to defend themselves
against charges when the basic facts may have become obscured by the passage of
time,’” ‘“to minimize the danger of official punishment because of acts in the far-
distant past’” and “to encourag[e] law enforcement officials to promptly investigate
suspected criminal activity.” Id., quoting Toussie v. United States, 397 U.S. 112, 114-
115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). In other words, the purpose of a criminal
statute of limitations is not to give offenders a chance to avoid criminal
responsibility for their actions, but rather, “to discourage inefficient or dilatory law
enforcement” and ensure that a criminal prosecution is “‘“based on reasonably fresh,
and therefore more trustworthy evidence.’”” Climaco at 586, quoting State v.
Hensley, 59 Ohio St.3d 136, 138, 571 N.E.2d 711 (1991), quoting the Ohio Legislative
7 Effective July 16, 2015, the statute of limitations for rape extended to 25 years.
R.C. 2901.13(A)(4). The amendment applies retroactively to an offense committed prior
to July 16, 2015 “if prosecution for that violation was not barred * * * as it existed on the
day prior to July 16, 2015.” R.C. 2901.13(L).
Service Commission comment to R.C. 2901.13; see also Copeland at ¶ 10 (‘“The
statute of limitations provides the ‘primary guarantee against bringing overly stale
criminal charges.’”), quoting State v. Henley, 8th Dist. Cuyahoga No. 86591, 2006-
Ohio-2728, ¶ 5. The state bears the burden of proving that a prosecution falls within
the statute of limitations. State v. Hawkins, 2019-Ohio-5133, 150 N.E.3d 519, ¶ 12
(8th Dist.), citing Climaco at 587.
A criminal prosecution is barred unless it is “commenced” within the
applicable statute of limitations. R.C. 2901.13(A)(3). Pursuant to former R.C.
2901.13(E) (now R.C. 2901.13(F)),8 a prosecution is “commenced”
on the date an indictment is returned or an information filed, or on the
date a lawful arrest without a warrant is made, or on the date a warrant,
summons, citation, or other process is issued, whichever occurs first. A
prosecution is not commenced by the return of an indictment or the
filing of an information unless reasonable diligence is exercised to issue
and execute process on the same. A prosecution is not commenced
upon issuance of a warrant, summons, citation, or other process, unless
reasonable diligence is exercised to execute the same.
Former R.C. 2901.13(G) (now R.C. 2901.13(H)) further provides:
The period of limitation shall not run during any time when the accused
purposely avoids prosecution. Proof that the accused departed this
state or concealed the accused’s identity or whereabouts is prima-facie
evidence of the accused’s purpose to avoid prosecution.
The state contends that prosecution of this case was timely
commenced and that the state exercised the reasonable diligence required under
8 At the time the indictment was issued in 2014, this section was codified under
R.C. 2901.13(E). The statute was amended in 2015, and this section is now codified under
R.C. 2901.13(F). Likewise, former R.C. 2901.13(G) is now codified under R.C. 2901.13(H).
former R.C. 2901.13(E) because (1) an indictment was filed prior to the expiration
of the statute of limitations, (2) a warrant was issued, (3) a summons was served via
commercial carrier, (4) a capias issued when Berry did not appear in court on the
date scheduled for his arraignment, (5) after the warrant was issued, the warrant
unit went back to Berry’s mother’s house looking for him, (6) the Sheriff’s
Department “acted on any viable information regarding * * * Berry” and (7) Berry
gave false contact information to a police officer during the December 2016 traffic
stop.
In this case, the indictment was returned on December 30, 2014.
That same day, a warrant was issued on the indictment and a summons was sent out
to Berry via Federal Express. The following day, a capias was “printed and sent to
sheriff.” All of this occurred approximately one week before the expiration of the
statute of limitations.
Under former R.C. 2901.13(E), a prosecution is not “commenced”
merely by the return of an indictment or the issuance of a summons or warrant. In
order for the return of an indictment or the issuance of a summons or warrant to
“commence” a criminal prosecution, the statute requires the exercise of reasonable
diligence in the issuance and execution of process on the indictment or in the
execution of the warrant or summons. ‘“[A] prosecution is not commenced so as to
toll the running of the statute of limitations merely by the issuance of a summons or
warrant. It is commenced by the issuance of a summons or warrant plus the exercise
of reasonable diligence to execute the same.’” Hawkins, 2019-Ohio-5133, at ¶ 15,
quoting State v. Morris, 20 Ohio App.3d 321, 322, 486 N.E.2d 168 (10th Dist.1984).
Once a defendant raises the issue that the statute of limitations has
expired, the state has the burden to show that it exercised the requisite “reasonable
diligence” in executing the summons or warrant. See, e.g., Bermudez, 2020-Ohio-
4296, at ¶ 9; Hawkins at ¶ 16. The Ohio Supreme Court has defined “reasonable
diligence” as “‘[a] fair, proper and due degree of care and activity, measured with
reference to the particular circumstances; such diligence, care, or attention as might
be expected from a man of ordinary prudence and activity.’” Sizemore v. Smith, 6
Ohio St.3d 330, 332, 453 N.E.2d 632 (1983), quoting Black’s Law Dictionary 412
(5th Ed.1979). What constitutes reasonable diligence depends on the particular
facts and circumstances of the case. Bermudez at ¶ 8, citing Sizemore at 332.
In this case, the state indicted Berry on December 30, 2014 — a few
days before the statutory time ran — but he was never served with the summons and
was not arrested until nearly two years later — well past the statutory time for
prosecution. Following a thorough review of the record and consideration of all of
the relevant facts and circumstances, we conclude that the state has not met its
burden of establishing that it exercised reasonable diligence in executing the
summons or warrant as required to timely commence prosecution under former
R.C. 2901.13(E).
Reasonable Diligence in Executing the Summons or Warrant
“Once a warrant is issued, it must be executed by either an arrest or
summons using reasonable diligence in compliance with Crim. R. 4(D).” State v.
Pannell, 2017-Ohio-4286, 92 N.E.3d 280, ¶ 18 (5th Dist.), citing State v. Greer, 2
Ohio App.3d 399, 442 N.E.2d 473 (1st Dist.1981). In general, the state exercises
“reasonable diligence” when it can demonstrate that it made an effort to serve the
summons in a manner provided by Crim.R. 4(D). Bermudez, 2020-Ohio-4296, at
¶ 8, citing State v. Stevens, 8th Dist. Cuyahoga No. 67400, 1994 Ohio App. LEXIS
5772, 4 (Dec. 22, 1994), citing State v. Morris, 20 Ohio App.3d 321, 322-323, 486
N.E.2d 168 (1oth Dist.1984); see also State v. Gallant, 174 Ohio App.3d 264, 2007-
Ohio-6714, 881 N.E.2d 907, ¶ 28 (3d Dist.) (“To constitute reasonable diligence
under R.C. 2901.13(E) service of the summons and complaint must first be in
accordance with Crim.R. 4(D).”) (emphasis deleted).
Here, however, there appears to be no dispute that the summons was
not served in compliance with former Crim.R. 4(D). As it existed in 2014, Crim.R.
4(D)(3) provided, in relevant part:
Summons may be served upon a defendant by delivering a copy to the
defendant personally, or by leaving it at the defendant’s usual place of
residence with some person of suitable age and discretion then residing
therein, or, except when the summons is issued in lieu of executing a
warrant by arrest, by mailing it to the defendant’s last known address
by certified mail with a return receipt requested. When service of
summons is made by certified mail it shall be served by the clerk in the
manner prescribed by Civil Rule 4.1(1).
Thus, in 2014, Crim.R. 4(D) did not provide for service via commercial carrier, as
occurred here. Accordingly, the effort to serve Berry with the summons via Federal
Express on December 30, 2014 did not constitute reasonable diligence. See, e.g.,
Gallant at ¶ 28 (3d Dist.) (where Crim.R. 4(D) does not provide for service via
regular U.S. mail, state’s attempt to serve summons via regular U.S. mail could not
constitute reasonable diligence under former R.C. 2901.13(E)); Morris, 20 Ohio
App.3d at 323, 486 N.E.2d 168 (“[I]n order to ground a claim that reasonable
diligence was exercised, the prosecution first was required to demonstrate that an
effort had been made to serve the summons in a manner provided by Crim. R. 4(D).
Because this threshold requirement was not complied with, the inquiry need not
progress to the stage where a determination need be made whether an effort to
comply with the provisions of Crim. R. 4(D) amounted to an exercise of reasonable
diligence to execute the summons.”).
Further, although the warrant issued on December 30, 2014 listed an
address of 16210 Arcade Avenue, Cleveland, Ohio 44110 for Berry, the docket
indicates that the summons was sent to Berry at a different address — 3002 E. 71st
Street, Cleveland, Ohio 44104.9 The docket reflects that it was returned a week later
as a “bad address.” There is nothing in the record that indicates the source of the
3002 E. 71st Street address, why that address was believed to have been associated
with Berry or why the summons was sent to Berry at that address. There is nothing
9 Although the state had previously asserted that this was Berry’s “last known
current address,” there is nothing in the record before us to support that assertion.
in the record to indicate that any subsequent attempts to serve the summons were
made at that address, the Arcade Avenue address or any other address after the state
was notified of failure of service. Although whether the state exercised reasonable
diligence depends upon the facts and circumstances of each case, “generally a single
attempt to serve a defendant in compliance with Crim.R. 4(D) is insufficient to
constitute reasonable diligence.” Gallant at ¶ 30; see also State v. King, 103 Ohio
App.3d 210, 212-213, 658 N.E.2d 1138 (10th Dist.1995) (state did not show
reasonable diligence when it made only one attempt to serve defendant with
summons where defendant’s whereabouts “could have been easily ascertained”);
State v. Myers, 8th Dist. Cuyahoga No. 87973, 2007-Ohio-279, ¶ 4, 17 (state did not
demonstrate reasonable diligence in attempting to serve defendant where no
additional efforts were made to serve him after a failed certified mail attempt); State
v. McNichols, 5th Dist. Stark No. 2000CA00058, 2000 Ohio App. LEXIS 4071, 9
(Sept. 5, 2000) (single attempt to serve defendant in twelve years “does not
demonstrate due diligence”). Accordingly, the state has not shown that it exercised
reasonable diligence in the execution of the summons.
Nor has the state shown that it exercised reasonable diligence in the
execution of the warrant. First, it is undisputed that — other than the failed,
improper attempt at service of the summons via Federal Express — no effort was
made to execute the summons or warrant prior to the natural expiration of the
statute of limitations on January 8, 2015.10
Second, although the state asserts in its brief that the Sheriff’s
Department acted upon “any viable information regarding * * * Berry,” the state
presented evidence that only two attempts were made to locate Berry in the two
years after the warrant was issued — once on February 10, 2015 at the 16210 Arcade
Avenue address and a second time, more than a year later, on March 22, 2016, first
at an address on 1720 Allandale Avenue in East Cleveland, and then, again, at the
16210 Arcade Avenue address. There is nothing in the record to indicate what led
police to believe Berry might be connected to the 1720 Allandale Avenue address.
When Berry attempted to contact Investigator Riolo and left a
voicemail message for him on January 14, 2015, no attempt was made to locate Berry
until nearly a month later. Even though Berry visited his children with Banks, no
attempt was made by the Sheriff’s Department to locate Berry at that address.
Although Woods gave Investigator Riolo two telephone numbers for Berry, there is
no indication in the record that anyone ever attempted to contact Berry through
10 The trial court held that only actions conducted during the limitations period
could be considered in determining whether the state exercised reasonable diligence
under former R.C. 2901.13(E). The state challenges this interpretation of former R.C.
2901.13(E) and asserts that under the plain language of the statute, consideration of
reasonable diligence is not limited to conduct that occurred prior to the natural expiration
of the statute of limitations. We acknowledge that no such limitation appears in the
language of former R.C. 2901.13(E). However, we need not resolve the issue here because
even considering what occurred after the natural expiration of the statute of limitations,
we find that the state has not met its burden of demonstrating that it exercised reasonable
diligence in executing the summons or warrant.
those telephone numbers after Investigator Riolo called the numbers sometime on
or after December 17, 2014 and “didn’t get an answer.” And although a “family
friend” had informed police when they visited the Arcade Avenue address on
March 22, 2016 that he had seen Berry at the home less than a week earlier, police
did nothing further to follow up on that lead. No other addresses were checked.11
No further attempts to locate Berry were made. The only reason Berry was
ultimately arrested was because he committed an unrelated traffic violation.
“Reasonable diligence requires taking steps which an individual of
ordinary prudence would reasonably expect to be successful in locating a
defendant’s address.” Sizemore, 6 Ohio St.3d at 332, 453 N.E.2d 632. It requires
the “use [of] common and readily available sources” in searching for a defendant.
Id.Detective Riegelmayer testified that it was a “standard affair” when
“researching a warrant” in the fugitive unit to “research the person,” e.g., to obtain
information from “[the] bureau of motor vehicles, where they say they reside from
their ID, to their criminal history, to past arrests and where they were located.”
However, despite the fact that Berry had remained in Cuyahoga County since 1995,
there is no indication in the record that the Sheriff’s Department did this with
respect to Berry. There is nothing in the record to suggest the Sheriff’s Department
11 Berry asserts in his brief that “[t]he state had other options that they did not
explore” and asserts that “[a] check on the Sheriff’s Department website identifies six
addresses on file for Albert Berry” and that “[t]he Clerk’s Office as well had several
addresses for Berry.” However, Berry’s assertions in his brief are not supported by
citations to any evidence in the record.
searched bureau of motor vehicle records, court records, tax records, child support
payment records, employment records or any other available records for contact
information for Berry.
Detective Riegelmayer further testified that if the fugitive unit “can’t
find someone,” they will “send things out to many different platforms,” such as
Facebook, Twitter and Crimestoppers, “to see if we could get any call backs or
anyone that would call in to let us know anonymously whether or not they had seen
the person” or will “push it to our marshall’s fugitive unit or sometimes contact * * *
the FBI depending on the type of crime.” Detective Riegelmayer, however, could not
state whether any of these steps had been taken with respect to Berry.
The state has not identified any cases in its brief in which reasonable
diligence was found to have been exercised under circumstances similar to those
present here. Cf. Morris, 20 Ohio App.3d at 322-323, 486 N.E.2d 168 (prosecution
was not commenced within the two-year limitation period and was barred where
“no effort at all was made to execute the warrant issued * * * within two years after
the offense was alleged to have been committed”); State v. Jackson, 8th Dist.
Cuyahoga No. 86755, 2006-Ohio-2468, ¶ 10 (state failed to show it exercised “any
diligence” much less the requisite “reasonable diligence” where it served the
defendant in 1999 but the summons was returned, marked “address unknown” and
no additional efforts were made to serve or locate the defendant until 2005);
Pannell, 2017-Ohio-4286, 92 N.E.3d 280, at ¶ 29 (three attempts at service in eight
years did not demonstrate reasonable diligence where there was no evidence the
state approached the residence where defendant was thought to live and other
locations were never investigated); State v. Jenkins, 5th Dist. Stark No. 2009-CA-
00150, 2010-Ohio-2719, ¶ 60 (lone attempt to locate defendant by contacting his
mother on one occasion did not demonstrate “due diligence”); State v. McGhee, 5th
Dist. Delaware No. 00CA-A-12-040, 2001 Ohio App. LEXIS 2813, 8 (June 20, 2001)
(“A twenty-first century definition of ‘reasonable diligence’ * * * must naturally
reflect the advancing availability of telecommunications and information
technology for this task.”).
Efforts to Avoid Prosecution
The state argues that even if it did not establish reasonable diligence
in the execution of the summons or warrant, its prosecution of Berry was still timely
because the statute of limitations tolled under former R.C. 2901.13(G) (now R.C.
2901.13(H)) based on Berry’s efforts to avoid prosecution.
The purpose of the tolling provision is “to prevent the accused from
benefiting from the statute of limitations when he or she has purposely acted to
avoid being prosecuted, thereby causing the state to fail to commence a timely
prosecution.” State v. Bess, 126 Ohio St.3d 350, 2010-Ohio-3292, 933 N.E.2d 1076,
¶ 24. The state contends that because Berry initially gave a false name when he was
pulled over for a traffic stop in December 2016, this meant that Berry was “aware of
the investigation all along” and was “avoiding prosecution.” We disagree.
The fact that Berry gave police a false name at a traffic stop on
December 5, 2016 — 22 years after the incident — does not establish that he acted
purposely to prevent the state from commencing a timely prosecution. Berry had
never been served in the case and, by the time of the traffic stop, the statute of
limitations had long since run. There is nothing in the record to indicate that Berry
had previously done anything to conceal his whereabouts or did anything to
purposely avoid prosecution after his arrest in 1995. The record reflects that Berry
had been living openly in Cuyahoga County since the incident. Banks testified that
Berry had been living with her on and off from 1998 until 2014 or 2015 and that he
had never left Cuyahoga County. Investigator Riolo testified that he had no
information or evidence that Berry had ever left the jurisdiction. After Berry learned
that Investigator Riolo was looking for him, Berry initiated contact with Investigator
Riolo, calling him on January 14, 2015. When Investigator Riolo did not pick up,
Berry left a voicemail message. Because the voicemail message was not preserved
or transcribed, the specific contents of that message are unknown. However, there
is no claim that Berry provided any false or misleading information regarding his
whereabouts in his voicemail message to Investigator Riolo. Based on the record
before us, the trial court did not err in concluding that the statute of limitations was
not tolled due to Berry’s purposeful efforts to avoid prosecution.
Because the state did not meet its burden of establishing that it
exercised reasonable diligence in executing the summons or warrant or that the
statute of limitations was tolled due to Berry’s purposeful efforts to avoid
prosecution, the trial court did not err in granting Berry’s motion to dismiss. The
state’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the 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
Cuyahoga County Court of Common Pleas 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.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR