State v. Duncan

2021 Ohio 3229

• Court: Ohio Court of Appeals
• Decided: September 17, 2021
• Docket: C-200079
• Status: Published

Opinion

[Cite as State v. Duncan, 2021-Ohio-3229.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200079 TRIAL NO. 18CRB-21815 Plaintiff-Appellant, : O P I N I O N. vs. :

TROY DUNCAN, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 17, 2021

Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Corey Morris, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} The state of Ohio appeals from the municipal court’s granting of Troy

Duncan’s motion to dismiss a theft complaint. Duncan moved for dismissal on the

ground that an almost 13-month delay between the filing of the complaint and his

arrest violated his right to a speedy trial under the United States and Ohio

Constitutions. The trial court granted the motion, persuaded that the state failed to

demonstrate a valid reason for the delay and that the length of the delay warranted a

presumption of prejudice to the defense. We conclude that, given the state’s initial

diligence and the lack of evidence linking the delay to the subsequent absence of

diligence, this was not an egregious case in which the length of the delay alone

supports a showing of prejudice. Because Duncan did not adequately demonstrate

prejudice, we reverse.

Background Facts and Procedure

{¶2} On August 20, 2018, Ohio Gaming Enforcement Agent Joel Lynch

filed a complaint against Duncan in the Hamilton County Municipal Court charging

Duncan with a first-degree misdemeanor theft offense. According to the allegations,

Duncan had stolen a speaker from a casino located in Hamilton County, Ohio, and

the theft was captured on surveillance video. Agent Lynch additionally filed a

warrant for Duncan’s arrest on that same date, but he lacked an in-state address.

Both of the addresses Agent Lynch found for Duncan—his “last known address”

obtained from the Regional Crime Information Center (“RCIC”) database, and the

address Duncan listed on the rewards card application submitted to the casino—were

in Kentucky.

{¶3} Agent Lynch attempted to contact Duncan in Kentucky two times by

certified mail. Both letters were returned without service, the first on October 2,

2 OHIO FIRST DISTRICT COURT OF APPEALS

2018, and the second on November 12, 2018. Except for an unsuccessful attempt to

reach Duncan by phone, Agent Lynch was not aware of any other efforts to arrest

Duncan or notify him of the charges.

{¶4} Duncan was arrested on the warrant on September 13, 2019. He

timely filed a motion to dismiss asserting a violation of his constitutional right to a

speedy trial.

{¶5} On January 22, 2020, the trial court held a hearing on the motion to

dismiss. Although Agent Lynch testified that he made no additional personal efforts

to track down Duncan after the second certified letter was returned without service,

he testified that he had instructed the casino to notify him if Duncan reappeared.

Further, Agent Lynch acknowledged that he made no attempt to have Kentucky law

enforcement locate or serve Duncan. He explained, however, that in doing so, he

was following the general directive of the prosecutor, a directive that seemed

appropriate because he lacked a verified address.

{¶6} Duncan did not testify. Further, he presented no evidence of where

he was living during the nearly 13-month delay between the filing of the complaint

and his arrest.

{¶7} In moving for dismissal, defense counsel did not argue that Duncan

was actually prejudiced by the delay. Instead, defense counsel took the position that

the state failed to use any reasonable diligence in letting its accusation be known to

Duncan and, that fact, coupled with the 13-month delay, warranted a presumption of

prejudice to Duncan’s defense.

{¶8} The trial court granted the motion to dismiss, finding that the factors

under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), weighed

in favor of a dismissal. The court’s analysis focused on the reason for the delay—the

3 OHIO FIRST DISTRICT COURT OF APPEALS

second Barker factor—and prejudice from the delay—the fourth Barker factor. With

respect to the second factor, the court noted that Agent Lynch had made only two

attempts by mail to notify Duncan of the warrant and made no attempt to have

Kentucky law enforcement reach out to Duncan. Coupled with the lack of evidence

that Duncan hid from law enforcement, evaded law enforcement, or attempted to

conceal his whereabouts, the court concluded the state failed to demonstrate a “valid

reason” for the delay.

{¶9} With respect to the fourth factor, the trial court concluded that

prejudice to the defense could be presumed due to the passage of time. The state

now appeals, challenging the dismissal of the complaint in one assignment of error.

Analysis

{¶10} The issue raised in the state’s assignment of error is whether the 13-

month delay between the filing of the theft complaint and Duncan’s arrest violated

Duncan’s constitutional right to a speedy trial.

{¶11} When evaluating a claim that a defendant’s Sixth Amendment right to

a speedy trial has been violated, a court must balance four factors: (1) the length of

the delay, (2) the state’s proffered 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 L.Ed.2d 101, quoted in Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct.

2686, 120 L.Ed.2d 520 (1992). This same test applies to evaluate a claimed violation

of Ohio’s speedy-trial provision set forth in Article I, Section 10, of the Ohio

Constitution. See State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d

1163, ¶ 14.

{¶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, including findings of

4 OHIO FIRST DISTRICT COURT OF APPEALS

historical facts, if they are supported by competent, credible evidence, but we review

the application of the law to those facts de novo. Id. at ¶ 15.

{¶13} Initially, we note there is a discrepancy concerning the historical facts

relating to the certified letters. Agent Lynch testified he sent both certified letters to

the same Kentucky address, but the trial court found in its written decision that

Agent Lynch sent a letter to each Kentucky address, first to an address in Elsmere,

Kentucky, and then to an address in Dry Ridge, Kentucky. The certified mail

envelopes containing the addresses were presented to the court for review during

Agent Lynch’s testimony. Those envelopes, however, were not offered into evidence

and are not contained in the record. Considering these circumstances, we cannot

adopt the trial court’s factual finding because it is not supported by competent

credible evidence. Accordingly, we adopt a factual finding consistent with Agent

Lynch’s testimony that he sent the letter by certified mail to Duncan’s last known

address twice. We otherwise defer to the trial court’s historical facts when we apply

the Barker-factor analysis.

The Length of the Delay

{¶14} 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 652, 112 S.Ct. 2686, 120

L.Ed.2d 520, fn. 1.; Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, 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,

5 OHIO FIRST DISTRICT COURT OF APPEALS

2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st Dist.). Consistent with this precedent,

the state has never disputed that the 13-month delay in this case triggered analysis

under the remaining three Barker factors.

{¶15} But this first factor only “technically” weighs in Duncan’s favor

because he was not incarcerated and did not have knowledge of the charges. State v.

Triplett, 78 Ohio St.3d 566, 569, 679 N.E.2d 290 (1997), cited in State v.

Muhammadel, 1st Dist. Hamilton No. C-190683, 2021-Ohio-567, ¶ 14; State v. Bush,

1st Dist. Hamilton No. C-190094, 2020-Ohio-1229, ¶ 15.

Reason for the Delay

{¶16} The second factor attributes fault for the delay and operates on a

“sliding scale.” See State v. Rogers, 1st Dist. Hamilton No. C-180120, 2019-Ohio-

1251, ¶ 9. Deliberate dilatory acts are weighted heavily against the state, while

negligent acts are weighted less heavily against the state. Barker, 407 U.S. at 531, 92

S.Ct. 2182, 33 L.Ed.2d 101. The record does not demonstrate deliberate dilatory acts

and the trial court found none.

{¶17} Further, while the record reflects some delay due to government

neglect, it also reflects adequate diligence during some period of the delay. Agent

Lynch located Duncan’s last known address from a reliable source, and sent certified

letters to that location to notify Duncan of the charges. The use of certified mail is

recognized under the Ohio Rules of Criminal Procedure for service of summons

within the boundaries of the state of Ohio. See Crim.R. 4(D). These mailings qualify

as serious efforts reasonably calculated to reach Duncan and notify him of the

charges and secure his appearance. See Triplett at 569-570. It follows that the

government did establish a justifiable reason for the delay—it could not find Duncan.

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶18} The state is not charged with justified, appropriate delay. See United

States v. Moreno, 789 F.3d 72, 80 (2d Cir.2015); Triplett at 569; see also Bush, 1st

Dist. Hamilton No. C-190094, 2020-Ohio-1229, at ¶ 27; State v. Jackson, 2016-

Ohio-5196, 68 N.E.3d 1278, ¶ 13 (1st Dist.).

{¶19} Admittedly, Agent Lynch did not follow up with attempts to locate

Duncan by other means after learning the letters had not reached Duncan. But the

trial court did not make any findings that Duncan would have been found earlier if

Agent Lynch had continued to pursue Duncan. That finding cannot be made on this

record, as there was no evidence suggesting that Duncan lived at either Kentucky

address or even “ ‘openly under his name.’ ” See Moreno, 789 F.3d at 80, quoting

Doggett, 505 U.S. at 649-650, 112 S.Ct. 2686, 120 L.Ed.2d 520.

{¶20} Thus, some of the delay in this case was justified, and the remainder

of the delay was not causally connected to any negligence of the government.

Consequently, this factor weighs against the state, but only slightly. See

Muhammadel, 1st Dist. Hamilton No. C-190683, 2021-Ohio-567, at ¶ 26, citing

Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101.

Timely Assertion of the Speedy Trial Right

{¶21} With respect to the third factor, the parties agree that Duncan timely

moved to dismiss the complaint. This factor weighs in Duncan’s favor.

Prejudice

{¶22} The fourth factor involves a consideration of the interests that the

right to a speedy trial was designed to protect. This includes (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. See Barker

at 532. The first two interests are not implicated in this case. Duncan was not

7 OHIO FIRST DISTRICT COURT OF APPEALS

incarcerated in the period before the filing of the complaint and his arrest, and there

is no evidence he suffered anxiety or concern during that period.

{¶23} With respect to the last interest, Duncan has never alleged any

particularized trial prejudice. Instead, he contends that trial prejudice should be

presumed, relying on our prior decision in Sears.

{¶24} In Sears, this court presumed that a criminal defendant was

prejudiced by a postaccusation delay of only nine months when the state failed to

make any effort to notify the defendant of the complaint. Sears, 166 Ohio App.3d

166, 2005-Ohio-5963, 849 N.E.2d 1060, at ¶ 16. But, we emphasized that there was

plenty of evidence connecting the lack of diligence to the delay, because the state

never suggested it had a problem locating the defendant, who had resided at the

same address during the challenged delay, and the police had defendant’s social

security number, date of birth, and correct address with the exception of the last digit

of the zip code. Sears at ¶ 3-4, 14.

{¶25} This case is very different from Sears, because the record reflects the

state initially made diligent efforts to notify Duncan of the complaint and there is no

identifiable causal connection between the subsequent failure of diligence and the

delay.

{¶26} Typically, “prejudice may be presumed only in aggravated cases

involving excessive delay.” Rogers, 1st Dist. Hamilton No. C-180120, 2019-Ohio-

1251, at ¶ 17, citing State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 28 (1st Dist.),

citing Doggett, 505 U.S. at 655-656, 112 S.Ct. 2686, 120 L.Ed.2d 520. For instance,

we presumed prejudice where there was a four-year delay in the service of arrest

warrants “brought on” by the lack of the state’s diligence for all but the first month

after the warrants issued. Jackson, 2016-Ohio-5196, 68 N.E.3d 1278, at ¶ 20.

8 OHIO FIRST DISTRICT COURT OF APPEALS

{¶27} Admittedly, we recently presumed prejudice in a case involving a

delay of about 15 months, close to the 13-month delay in this case. State v. Pierce,

1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, ¶ 2, 17. But when examining the

state’s culpability for the delay in Pierce, we were unable to “definitively” rule out

that the state had “acted intentionally to thwart service of the indictment.” Id. at ¶ 12.

{¶28} Here, Duncan was arrested 13 months after the filing of formal

charges and a warrant. Agent Lynch demonstrated that at the start of the 13-month

period, he twice attempted to notify Duncan of the charges by certified mail. Agent

Lynch learned several months later those diligent attempts ultimately failed. During

the subsequent 10-month period, Agent Lynch did not follow up with the other

Kentucky address or with Kentucky authorities, but he did request that the casino

“immediately” notify the commission if Duncan returned to the casino.

{¶29} Under these circumstances, the 13-month delay coupled with the

state’s culpability does not rise to the level of an aggravated case involving excessive

delay in which prejudice should be presumed. See State v. Mead, 1st Dist. Hamilton

Nos. C-190604, C-190620, C-190622, C-190623, C-190624 and C-190625, 2021-

Ohio-1107 (declining to presume prejudice after a postaccusation delay of only 11

months, even though there was no attempt at service, including out-of-state service,

where the record supported the state’s claim that it had a problem locating the

defendant); Muhammadel, 1st Dist. Hamilton No. C-190683, 2021-Ohio-567

(declining to presume prejudice from a two-year postaccusation delay after

considering the state’s difficulty in locating the admittedly homeless defendant);

Bush, 1st Dist. Hamilton No. C-190094, 2020-Ohio-1229 (declining to presume

prejudice from a 21-and-one-half-month delay from formal charge to arrest where

the state made “periodic and regular efforts” to locate the defendant at his last

9 OHIO FIRST DISTRICT COURT OF APPEALS

known address); Rogers, 1st Dist. Hamilton No. C-180120, 2019-Ohio-1251

(declining to presume prejudice after a 15-month delay from formal charge to arrest).

Conclusion

{¶30} We conclude that the first, second, and third Barker factors weigh in

Duncan’s favor, but not strongly. The fourth factor weighs decidedly against Duncan

because he failed to show any actual prejudice. Considering all the circumstances in

the case, the 13-month postaccusation delay was not so unreasonable to result in a

violation of Duncan’s constitutional speedy-trial rights. Consequently, we sustain

the state’s assignment of error.

{¶31} Accordingly, we reverse the trial court’s judgment dismissing the

complaint and remand the cause for further proceedings, including reinstatement of

the complaint.

Judgment reversed and cause remanded.

C ROUSE , J., concurs. Z AYAS , P.J., concurs in judgment only.

Please note: The court has recorded its own entry this date.