[Cite as State v. Evans, 2019-Ohio-13.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27881 : v. : Trial Court Case No. 2016-CR-3718 : JEFFREY A. EVANS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 4th day of January, 2019.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro, Ohio 45066 Attorney for Defendant-Appellant
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WELBAUM, P.J. -2-
{¶ 1} Defendant-appellant, Jeffrey A. Evans, appeals from his conviction in the
Montgomery County Court of Common Pleas after he pled no contest to two counts of
vehicular homicide and one count of failure to stop after an accident. In support of his
appeal, Evans contends that the trial court erred in overruling his motion to dismiss the
aforementioned charges. Evans also contends that his trial counsel provided ineffective
assistance by failing to request an evidentiary hearing on the motion to dismiss. For the
reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On July 27, 2016, Evans was responsible for an automobile collision on
Interstate 75 that killed another driver. Following the collision, Evans exited his vehicle
and attempted to flee the scene of the accident on foot. Despite his efforts to flee, Evans
was ultimately arrested by a City of Moraine police officer. Although Evans was released
from custody two days after the collision, nearly a year later, on July 17, 2017, the
Montgomery County Grand Jury returned an indictment charging him with one count of
vehicular homicide (negligence) in violation of R.C. 2903.06(A)(3)(a), one count of
vehicular homicide (proximate result) in violation of R.C. 2903.06(A)(4), and one count of
failure to stop after an accident in violation of R.C. 4549.02(A) and (B)(3)(b).
{¶ 3} Following his indictment, Evans entered a plea of not guilty and filed a motion
to dismiss the charges. As part of his motion, Evans argued that the charge for failing to
stop after an accident should be dismissed because the statute on which that charged
was based, R.C. 4549.02, violated his Fifth Amendment right against self-incrimination. -3-
Since he was indicted nearly one year after the collision, Evans also argued that all the
charges against him should be dismissed on the basis of pre-indictment delay. Evans
did not request an evidentiary hearing on his motion to dismiss and no such hearing was
held before the trial court.
{¶ 4} On November 9, 2017, after reviewing the parties’ written arguments, the trial
court issued a decision and entry overruling Evans’s motion to dismiss. Evans thereafter
entered a no contest plea to the indicted charges, each of which the trial court found him
guilty of committing. The trial court then sentenced Evans to 180 days in jail and
imposed community control sanctions.
{¶ 5} Evans now appeals from his conviction, raising three assignments of error
for review.
First Assignment of Error
{¶ 6} Evans’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN OVERRULING MR. EVANS’ MOTION TO
DISMISS THE THIRD COUNT OF THE INDICTMENT [failing to stop after
an accident] BASED ON THE UNCONSTITUTIONALITY OF R.C. 4549.02.
{¶ 7} Under his First Assignment of Error, Evans contends that the trial court
should have dismissed the charge for failing to stop after an accident because the statute
on which that charge was based, R.C. 4549.02, violates his Fifth Amendment right against
self-incrimination. We disagree with Evans’s claim.
{¶ 8} “The Fifth Amendment states that ‘[n]o person * * * shall be compelled in any
criminal case to be a witness against himself.’ ” Hiibel v. Sixth Judicial Dist. Ct. of Nev., -4-
542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). “To qualify for the Fifth
Amendment privilege, a communication must be testimonial, incriminating, and
compelled.” Id., citing United States v. Hubbell, 530 U.S. 27, 34-38, 120 S.Ct. 2037, 147
L.Ed.2d 24 (2000).
{¶ 9} Evans claims that R.C. 4549.02 violates his Fifth Amendment right against
self-incrimination because it compels him to provide information that assists the State in
establishing a violation of R.C. 4549.02. Pursuant to that statute:
In the case of a motor vehicle accident or collision with persons or property
on a public road or highway, the operator of the motor vehicle, having
knowledge of the accident or collision, immediately shall stop the operator's
motor vehicle at the scene of the accident or collision. The operator shall
remain at the scene of the accident or collision until the operator has given
the operator’s name and address and, if the operator is not the owner, the
name and address of the owner of that motor vehicle, together with the
registered number of that motor vehicle, to all of the following:
(a) Any person injured in the accident or collision;
(b) The operator, occupant, owner, or attendant of any motor vehicle
damaged in the accident or collision;
(c) The police officer at the scene of the accident or collision.
R.C. 4549.02(A)(1).
{¶ 10} Therefore, as noted by the Supreme Court of Ohio, “R.C. 4549.02 requires
a driver involved in a collision on a public street to stay at the scene until he or she has
given his or her name, address, and registration number to the other driver, to any injured -5-
party, or to a police officer.” State v. Williams, 79 Ohio St.3d 1, 14, 679 N.E.2d 646
(1997). A person who fails to do so is guilty of failure to stop after an accident. R.C.
4549.02(B)(1).
{¶ 11} In California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971),
the United States Supreme Court specifically reviewed whether the Fifth Amendment
privilege against self-incrimination was infringed by a California statute that required the
driver of a motor vehicle involved in an accident to stop at the scene and give his or her
name and address. Id. at 425. Similar to R.C. 4549.02(A), the California statute
provided as follows:
“The driver of any vehicle involved in an accident resulting in damage to any
property including vehicles shall immediately stop the vehicle at the scene
of the accident and shall then and there * * * (l)ocate and notify the owner
or person in charge of such property of the name and address of the driver
and owner of the vehicle involved[.]”
Byers at 426, quoting California Vehicle Code § 20002(a)(1).
{¶ 12} Upon reviewing the California statute, the United States Supreme Court
held that the compelled disclosure of the driver’s identity and address did not violate the
privilege against self-incrimination even though it might lead to an inquiry that results in
criminal charges. Id. at 434. In so holding, the court found that “[s]topping in
compliance with [the California statute] * * * does not provide the State with ‘evidence of
a testimonial or communicative nature’ within the meaning of the Constitution.” Id. at
432, quoting, Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908
(1966). The court additionally found that “[d]isclosure of name and address is an -6-
essentially neutral act” and “[w]hatever the collateral consequences of disclosing name
and address, the statutory purpose is to implement the state police power to regulate use
of motor vehicles.” Id.
{¶ 13} The court in Byers further stated that:
Although identity, when made known, may lead to inquiry that in turn leads
to arrest and charge, those developments depend on different factors and
independent evidence. Here the compelled disclosure of identity could
have led to a charge that might not have been made had the driver fled the
scene; but this is true only in the same sense that a taxpayer can be charged
on the basis of the contents of a tax return or failure to file an income tax
form. There is no constitutional right to refuse to file an income tax return
or to flee the scene of an accident in order to avoid the possibility of legal
involvement.
Byers at 434. See also Moore v. State, 12 Ohio Law Abs. 92 (2d Dist.1931) (upholding
the constitutionality of former Ohio General Code §12606, which required the operator of
a motor vehicle involved in an accident to stop and give his or her name and address).
{¶ 14} Based on the United States Supreme Court’s holding in Byers, we do not
find that the requirements in R.C. 4549.02(A) violate the Fifth Amendment privilege
against self-incrimination. While R.C. 4549.02(A) requires the operator of a motor
vehicle involved in an accident to remain at the scene and to provide his or her name and
address, it does not require the individual to state a cause of the accident or to claim
responsibility for the accident. As noted in Byers, it would be “an extravagant extension
of the privilege” to hold that the neutral act of disclosing one’s name and address is -7-
“testimonial in the Fifth Amendment sense.” Byers at paragraph two of the syllabus.
Therefore, because providing one’s name and address at the scene of an accident is not
testimonial in nature, the Fifth Amendment privilege against self-incrimination simply does
not apply.
{¶ 15} Evans’s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 16} Evans’s Second Assignment of Error is as follows:
DISMISS BASED ON PRE-INDICTMENT DELAY.
{¶ 17} Under his Second Assignment of Error, Evans challenges the trial court’s
decision overruling his motion to dismiss based on his claim of pre-indictment delay.
Evans contends that the trial court’s ruling was in error because the trial court failed to
hold an evidentiary hearing on the issue of whether Evans suffered actual prejudice from
the pre-indictment delay. According to Evans, the trial court’s failure to hold an
evidentiary hearing violated due process and warrants reversing and remanding the
matter for purposes of holding such a hearing. We again disagree with Evans’s claim.
{¶ 18} It is well established that “[d]elay between a defendant’s involvement in
alleged criminal conduct and an indictment involving such conduct may deprive a
defendant of his constitutionally protected due process rights.” State v. Moore, 2017-
Ohio-1307, 88 N.E.3d 593, ¶ 24 (2d Dist.), citing State v. Luck, 15 Ohio St.3d 150, 472
N.E.2d 1097 (1984), paragraph two of the syllabus. However, “preindictment delay
violates due process only when it is unjustifiable and causes actual prejudice[.]” State v. -8-
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. Therefore, “[w]hen a
defendant alleges that he has been prejudiced by the State’s pre-indictment delay in
pursuing a case, the defendant must first produce evidence demonstrating that the delay
has caused actual prejudice to his defense.” State v. Shoopman, 2d Dist. Montgomery
No. 27182, 2017-Ohio-2612, ¶ 8, citing Luck at 157-158. “Then, if the defendant has
established actual prejudice, the State must produce evidence of a justifiable reason for
the delay.” Id., citing Luck at 158.
{¶ 19} “Actual prejudice exists when missing evidence or unavailable testimony,
identified by the defendant and relevant to the defense, would minimize or eliminate the
impact of the state’s evidence and bolster the defense.” Jones at ¶ 28, citing Luck at
157-158. “A determination of actual prejudice involves ‘ “a delicate judgment” ’ and a
case-by-case consideration of the particular circumstances.” Id. at ¶ 20, quoting State
v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United
States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “A reviewing
court must scrutinize a defendant’s claim of prejudice in light of the particular evidence
that was lost or is unavailable as a result of the delay and, in particular, consider the effect
of the lost evidence on the defense[.]” Shoopman at ¶ 9, citing Jones at ¶ 23.
{¶ 20} “General assertions that memories have faded are not sufficient to satisfy a
defendant’s burden to demonstrate that he suffered specific, actual prejudice.” State v.
Conley, 2d Dist. Clark No. 01-CA-0013, 2001 WL 958834, *2 (Aug. 24, 2001). Accord
Shoopman at ¶ 9; Jones at ¶ 21, 27. See also Miamisburg v. Rinderle, 2d Dist.
Montgomery No. 26094, 2015-Ohio-351, ¶ 17 (holding the defendant’s broad assertion
of fading memories, although potentially true, was not sufficient to establish actual -9-
prejudice because the defendant did not identify any particular memory at issue or explain
how the fading memories prejudiced him). “That does not mean, however, that
demonstrably faded memories * * * cannot satisfy the actual-prejudice requirement.”
(Emphasis added.) Jones at ¶ 21.
{¶ 21} Anxiety stemming from the concern that one could face criminal charges is
also insufficient to support a finding of actual prejudice. State v. Weiser, 10th Dist.
Franklin No. 03AP-95, 2003-Ohio-7034, ¶ 34 (finding defendant’s claim of anxiety was
insufficient to establish actual prejudice because it stemmed from the fact that he was
facing charges, not from the delay between the incident and his indictment). See also
State v. Glass, 10th Dist. Franklin No. 10AP-558, 2011-Ohio-6287, ¶ 26 (“although facing
criminal charges for an extended period of time necessarily entails some level of anxiety
and concern, appellant’s bare allegation of anxiety and concern presents no particular
reason for this factor to weigh heavily in our consideration”); State v. Eicher, 8th Dist.
Cuyahoga No. 89161, 2007-Ohio-6813, ¶ 33 (holding that defendant’s blanket statement
that she suffered anxiety during her four and a half month pre-trial detention was
insufficient to establish prejudice with regards to speedy trial rights).
{¶ 22} With regard to an evidentiary hearing, this court has held that a trial court
does not have a “per se duty” to hold an evidentiary hearing on the issue of whether actual
prejudice resulted from pre-indictment delay when the parties did not request a hearing,
but instead, elected to proceed on their written arguments. State v. Buis, 2018-Ohio-
1727, 111 N.E.3d 854, ¶ 6 (2d Dist.). Although an evidentiary hearing is not required,
“where the claims in a motion to dismiss would justify relief and are supported by factual
allegations, the court abuses its discretion when it grants or denies the motion without a -10-
hearing.” State v. Dillon, 181 Ohio App.3d 69, 2009-Ohio-530, 907 N.E.2d 1226, ¶ 17
(2d Dist.).
{¶ 23} This court has held that a hearing may be proper under circumstances
where a defendant asserted in his motion that prejudice existed because his memory had
faded, he was unable to locate witnesses, and the victim’s credibility was suspect. Buis
at ¶ 7, citing State v. Dixon, 8th Dist. Cuyahoga No. 100332, 2014-Ohio-2185, ¶ 11.
Specifically, this court found that a hearing on such claims “may have been proper to test
the defendant’s memory and to explore his claim about locating witnesses and the victim’s
credibility.” (Emphasis added.) Id.
{¶ 24} In this case, Evans claimed in his motion to dismiss that the pre-indictment
delay of nearly one year prejudiced him because it subjected him to “great anxiety.”
Evans also claimed the pre-indictment delay caused him and the witnesses to suffer from
“diminished and fading memories” that impaired his defense. Evans, however, failed to
request an evidentiary hearing on these claims and failed to provide any specific factual
allegations supporting the claims. For example, Evans did not indicate which witnesses
suffered from faded memories, what information may have been lost as a result of the
faded memories, or how the faded memories impaired his defense. Instead, Evans
broadly asserted that his memories and the memories of the witnesses had faded due to
the pre-indictment delay. Since Evans did not specify what witnesses and information
became unavailable or indicate what evidence was lost as a result of the delay, it was
reasonable for the trial court not to hold an evidentiary hearing. Evans’s alleged anxiety
is inapposite because said anxiety stemmed from the possibility that he faced criminal
charges, not from the actual pre-indictment delay. -11-
{¶ 25} Because Evans failed to request an evidentiary hearing on his motion to
dismiss and because his motion to dismiss only raised generalized claims of anxiety and
potential faded memories without any supporting factual allegations, the trial court did not
abuse its discretion in failing to hold an evidentiary hearing on the issue of whether Evans
suffered actual prejudice as a result of the pre-indictment delay.
{¶ 26} Evans’s Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 27} Evans’s Third Assignment of Error is as follows:
MR. EVANS WAS DENIED HIS CONSTITUTIONALLY GUARANTEED
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL
COUNSEL FAILED TO REQUEST AN EVIDENTIARY HEARING TO
PURS[U]E HIS CLAIM OF PRE-INDICTMENT DELAY.
{¶ 28} Under his Third Assignment of Error, Evans contends that his trial counsel
provided ineffective assistance by failing to request an evidentiary hearing on the issue
of whether he suffered actual prejudice from the pre-indictment delay. We disagree with
Evans’s claim.
{¶ 29} In order to succeed on an ineffective assistance claim, a defendant must
establish: (1) his trial counsel’s performance was deficient; and (2) the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a
showing of either deficient performance or prejudice defeats a claim of ineffective -12-
assistance of counsel. Strickland at 697.
{¶ 30} To establish deficient performance, a defendant must show that his trial
counsel’s performance fell below an objective standard of reasonable representation. Id.
at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing court “must
indulge in a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689.
{¶ 31} To establish prejudice, a defendant must show that there is “a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
citing Strickland at 687-688; Bradley at paragraph two of the syllabus. “ ‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’ ” Bradley
at 142, quoting Strickland at 694.
{¶ 32} In this case, even if we were to find that Evans’s trial counsel performed
deficiently by failing to request an evidentiary hearing, Evans has not established that he
was prejudiced by counsel’s failure. Specifically, Evans did not demonstrate that there
is a reasonable probability that the outcome of his case would have been different had
his trial counsel requested an evidentiary hearing. This is because there is no guarantee
that the trial court would have granted a request for an evidentiary hearing. As previously
noted, trial courts do not have a “per se duty” to hold evidentiary hearings on the issue of
pre-indictment delay. Buis, 2d Dist. Montgomery No. 27778, 2018-Ohio-1727 at ¶ 6.
{¶ 33} Further, if an evidentiary hearing had been granted in this case, it is unlikely
that the trial court would have thereafter granted Evans’s motion to dismiss on the basis
of pre-indictment delay. As previously noted, the broad claims in Evans’s motion to -13-
dismiss were insufficient to establish actual prejudice resulting from the pre-indictment
delay. Evans also did not indicate in his motion or in his appellate brief what evidence
he would have presented at an evidentiary hearing that would have caused the trial court
to rule in his favor. Therefore, Evans has failed to demonstrate that an evidentiary
hearing would have resulted in the trial court’s granting his motion to dismiss.
Accordingly, Evans’s ineffective assistance claim lacks merit because he has not
established any prejudice arising from trial counsel’s failure to request an evidentiary
hearing.
{¶ 34} Evans’s Third Assignment of Error is overruled.
Conclusion
{¶ 35} Having overruled all assignments of error raised by Evans, the judgment of
the trial court is affirmed.
FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr. Michael P. Allen Marshall G. Lachman Hon. Gregory F. Singer