eCases

 (1972); State v. Long, Slip Opinion No. 2020-
Ohio-5363, ¶ 13-14.
{¶7}     Evidence offered at the joint hearing on the motions to dismiss was
limited to testimony from the two Cincinnati police officers who signed the warrants
and Martin, the victim in the assault case. The officers explained their efforts to
3
OHIO FIRST DISTRICT COURT OF APPEALS
apprehend Muhammadel and the inability of the police to enter the Drop Inn Center,
the local homeless shelter, to look for individuals. Martin indicated that she never
knew Muhammadel to have a stable residence over the many years she knew him.
{¶8}      Muhammadel did not testify. Further, he did not present evidence of
a location where he could have been found for service of the warrants during the two-
year period at issue. Defense counsel argued, however, that the police officers had
improperly used Muhammadel’s homelessness as an excuse to forgo diligent efforts
to apprehend him. The state argued the Barker factors weighed against a speedy-
trial-right   violation,   characterizing   the   delay   as   reasonable   considering
Muhammadel’s lack of a stable residence.
{¶9}      When the trial court asked defense counsel about prejudice caused
by the delay, defense counsel responded that the delay had led to the loss of a police
body-worn camera recording and the ability to interview a witness. The trial court
denied the motion, unpersuaded by the claim of actual evidentiary prejudice and
emphasizing that Muhammadel was “not readily able to [be] f[ou]nd because he
d[id]n’t have an address.” Subsequently, Muhammadel pleaded no contest to the
assault charge, and the court dismissed the aggravated-menacing charge for want of
prosecution.
Constitutional Right to a Speedy Trial
{¶10}     The issue raised in Muhammadel’s sole assignment of error is
whether the two-year delay between the filing of the assault complaint and his arrest
violated his constitutional right to a speedy trial. To determine whether a particular
delay is constitutionally reasonable, a court must balance four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right,
and (4) the prejudice to the defendant. Barker,

407 U.S. at 530

92 S.Ct. 2182

, 33
4
OHIO FIRST DISTRICT COURT OF APPEALS
L.Ed.2d 101, quoted in Doggett v. United States,

505 U.S. 647

, 651,

 (1992).
{¶11}    The Barker factors are related and must be considered together,
along with such other circumstances as may be relevant to protecting the purposes of
the constitutional speedy-trial guarantee. See Barker at 533. That guarantee is
designed “ ‘(1) to prevent undue and oppressive incarceration prior to trial, (2) to
minimize anxiety and concern accompanying public accusation and (3) to limit the
possibilities that long delay will impair the ability of an accused to defend himself.’ ”
Smith v. Hooey,

393 U.S. 374

, 378,

89 S.Ct. 575

21 L.Ed.2d 607

 (1969), quoting
United States v. Ewell,

383 U.S. 116

, 120,

86 S.Ct. 773

15 L.Ed.2d 627

 (1966).
{¶12} Review of a speedy-trial claim involves a mixed question of law and
fact. Therefore, we defer to the trial court’s factual findings if they are supported by
competent, credible evidence, but we review the application of the law to those
facts de novo. See Long, Slip Opinion No.

2020-Ohio-5363

, at ¶ 15.
Length of the Delay
{¶13}   The length-of-the-delay inquiry serves as a threshold inquiry that a
defendant must satisfy before triggering further analysis under the Barker factors.
Generally, as a delay between formal accusation and arrest approaches one year, the
delay triggers further analysis. See Doggett,

505 U.S. at 662

, fn. 1.; Long at ¶ 19. In this appellate district, a delay of nine months or
more in a misdemeanor-assault case gives prima facie merit to a claim of denial of
the constitution-based right to a speedy trial and requires the court to analyze the
three remaining Barker factors to determine if reversal is warranted. State v. Sears,

166 Ohio App.3d 166

2005-Ohio-5963

849 N.E.2d 1060

, ¶ 12 (1st Dist.).
5
OHIO FIRST DISTRICT COURT OF APPEALS
Consistent with this precedent, the state has never disputed that the two-year delay
in this case triggered analysis under the remaining three Barker factors.
{¶14}   Although the length of the delay triggers further analysis, the first
factor weighs only negligibly for Muhammadel because he was not incarcerated or
otherwise restrained of his liberty during the delay and did not know of the pending
complaint. See State v. Bush, 1st Dist. Hamilton No. C-190094,

2020-Ohio-1229

, ¶
15, citing State v. Triplett,

78 Ohio St.3d 566

, 569,

679 N.E.2d 290

 (1997), and State
v. Keaton, 10th Dist. Franklin No. 16AP-716,

2017-Ohio-7036

.
Reason for the Delay
{¶15} The second Barker factor focuses on the state’s explanation for the
delay. State v. Jackson,

2016-Ohio-5196

, 68 N.E3d 1278, ¶ 11 (1st Dist.). The state
has the burden of ensuring a speedy trial, but a pretrial delay is “often both
inevitable and wholly justifiable.” Doggett,

505 U.S. at 656

120 L.Ed.2d 520

, quoted in Sears at ¶ 13. This inquiry, thus, examines the source of the
delay, and whether delay tied to the government was “[]necessary” and thus,
“[]justifiable,” or whether it “might reasonably have been avoided.” Dickey v.
Florida,

398 U.S. 30

, 51-52,

90 S.Ct. 1564

26 L.Ed.2d 26

 (1970) (Brennan, J.,
concurring); Sears at ¶ 13.       See Doggett at 652-653 (“For six years, the
Government’s investigators made no serious effort to test their progressively more
questionable assumption that Doggett was living abroad, and, had they done so,
they could have found him within minutes.”).
{¶16}    Different reasons for delay are afforded “different weights.” Barker,

407 U.S. at 531

. A deliberate delay by the government
weighs heavily against the state.

Id.

 Delay resulting from a neutral reason such as
6
OHIO FIRST DISTRICT COURT OF APPEALS
negligent conduct of the government weighs less heavily.

Id.

 Delay that is justifiable
and reasonable in time generally does not weigh against the state at all.

Id.

{¶17}    Intertwined with this analysis is consideration of whether the
defendant shares any responsibility for the delay. See Triplett, 78 Ohio St.3d at 570,

679 N.E.2d 290

. (A defendant’s “slipperiness” contributing to the delay weighs
“heavily against” the defendant, even when the police are “underzealous” in
bringing a defendant to justice.).
{¶18}    Muhammadel argues the evidence at the hearing showed the source
of the delay was Officer Staples’s “negligence” in failing to use more diligent efforts to
apprehend him.      Undoubtedly, the police have a duty to use serious efforts to
apprehend the accused, even those without a stable address. See Doggett,

505 U.S. at 653

; United States v. Velazquez,

749 F.3d 161

,
179-180 (3d Cir.2014). The difficulty with Muhammadel’s negligence argument is
the absence of evidence to support a conclusion that more diligent efforts likely
would have led to an earlier arrest.
{¶19}    The state presented evidence that Muhammadel lacked a stable
address where he could be found and this lack of address, along with the restrictions
of the Drop Inn Center, impeded his apprehension. Muhammadel did not challenge
this evidence and the trial court accepted it.            Lacking evidence of where
Muhammadel could have been found, one cannot conclude with much certainty that
Muhammadel would have been arrested sooner with more police diligence.
{¶20}   Muhammadel now challenges the state’s claim that he lacked an
address for apprehension, but his late efforts are unavailing. He cites defense
counsel’s representation, at the bond reduction hearing, that Muhammadel had
become employed and obtained stable housing at some point before his arrest. But
7
OHIO FIRST DISTRICT COURT OF APPEALS
defense counsel’s representation is too vague to make any difference to our analysis
in this case. The trial court was unpersuaded by defense counsel’s representation
and rejected the bond reduction request, a position advocated by the prosecuting
witness Martin, who appeared at the hearing and told the court that Muhammadel
“has a very good way of eluding people,” based on her long history of dealing with
him.
{¶21}    Muhammadel also invites this court to perform our own search on
websites such as PeopleFinders.com or the Hamilton County Clerk of Courts to
discover ostensible addresses where the police could have looked for him during the
delay. While information from these websites, if timely presented in the trial court,
may have aided our decision, this court cannot add to the trial court record when
deciding this appeal. State v. Ishmail,

54 Ohio St.2d 402

377 N.E.2d 500

(1978),
paragraph one of the syllabus.
{¶22} Finally, Muhammadel argues that the state had the burden to show
that his “nomadic lifestyle” would have made the government’s efforts “unfruitful”
even if the police had been “diligent.” But if we accept Muhammadel’s argument, we
would be placing an unwarranted burden on the state to prove what it undisputedly
did not know and Muhammadel did—his whereabouts.
{¶23} Ultimately, we conclude that the trial court’s findings that
Muhammadel lacked an address and was not readily available to be found are
supported by competent, credible evidence and, therefore, we accept them when
considering the reason for the delay.
{¶24} Although we accept the trial court’s factual findings, we cannot
condone the lack of police effort here by characterizing the entire delay as justified.
Conversely, we cannot characterize the state’s conduct as a deliberate attempt to
8
OHIO FIRST DISTRICT COURT OF APPEALS
delay Muhammadel’s trial to gain a tactical advantage. An officer looked for
Muhammadel on the date of the assault, elicited some location information from the
victim, obtained and filed an arrest warrant that contains Muhammadel’s
identification information such as his control number in addition to a physical
description, and assumed others would take over the search. This record does not
implicate bad faith and Muhammadel has never suggested bad faith.
{¶25} Missing from this case, too, is an argument by the state that
Muhammadel was attempting to avoid apprehension. Moreover, the state recognizes
that Muhammadel cannot be blamed for the delay due to his lack of a stable address.
{¶26} Without some evidence that more diligent efforts would have
resulted in an earlier trial, we conclude the state’s reason for the lengthy delay is a
“neutral reason” that weighs against the state, but not heavily. See Barker,

407 U.S. 531

. (“A more neutral reason” weighs less heavily for a
violation, but must be considered as part of the analysis “since the ultimate
responsibility for such circumstances must rest with the government rather than the
defendant.”).
Assertion of Speedy-Trial Rights
{¶27}    The third Baker factor examines the defendant’s assertion of the
speedy-trial right. Here, there was no evidence that Muhammadel knew of the
complaint before his arrest. Further, he promptly moved to dismiss the case after his
arrest. Thus, Muhammadel argues this factor should weigh in his favor. We agree
with Muhammadel, and note the state’s agreement, too.
Prejudice Caused by the Delay
{¶28}   The final Barker factor considers whether Muhammadel suffered
prejudice from the delay. Muhammadel claimed actual prejudice to his defense at
9
OHIO FIRST DISTRICT COURT OF APPEALS
the hearing on the motion to dismiss.          The trial court found his assertions
inadequate to warrant dismissal.
{¶29}   On appeal, Muhammadel maintains that he demonstrated actual
impairment to his defense and, for the first time, he contends prejudice to his
defense should be presumed.
{¶30}   Prejudice to the defense is the “most serious” interest protected by
the speedy-trial right, yet it is often difficult to prove. Barker,

407 U.S. at 532

.            Moreover, “[e]xcessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove, or for that
matter, identify.” Doggett,

505 U.S. at 656