State v. Gribbins

2024 Ohio 2973

• Court: Ohio Court of Appeals
• Decided: August 7, 2024
• Docket: C-230676, C-230677, C-230678
• Status: Published

Opinion

[Cite as State v. Gribbins, 2024-Ohio-2973.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-230676 C-230677 Plaintiff-Appellee, : C-230678 TRIAL NOS. 22CRB-26A, B vs. : C-23CRB-20032A C-23CRB-14446B GENE GRIBBINS, : O P I N I O N. Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in C-230676; Appeals Dismissed in C- 230677 and C-230678

Date of Judgment Entry on Appeal: August 7, 2024

Emily Smart Woerner, City Solicitor, William T. Horsely, Chief Prosecuting Attorney, and Dahkota Parish, Assistant Prosecuting Attorney, Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, Sarah E. Nelson, Assistant Public Defender, and Andrea Miceli, Legal Intern, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

KINSLEY, Judge.

{¶1} In the appeal numbered C-230676, defendant-appellant Gene Gribbins

appeals the trial court’s judgments convicting him of theft of retail items from a Meijer

store and of criminal trespass into the store. He argues that the trial court erred in

denying his motion to dismiss the charges on the basis that the state violated his

constitutional right to a speedy trial. Because Gribbins initially left the scene while

being apprehended by a store employee, and because Gribbins suffered no prejudice

as a result of the delay in prosecution, we find no violation of his speedy-trial right.

We therefore affirm the judgments of the trial court in the appeal numbered C-230676.

{¶2} Gribbins raises no assignments of error as to the appeals numbered C-

230677 and C-230678. Those appeals are accordingly dismissed.

Factual and Procedural Background

{¶3} On January 1, 2022, Gribbins was charged in the Hamilton County

Municipal Court with one count of theft in violation of R.C. 2913.02, a misdemeanor

of the first degree, and one count of criminal trespass in violation of R.C. 2911.21(A)(1),

a misdemeanor of the fourth degree. The charges stemmed from an incident that

occurred the day before at the Oakley Meijer store.

{¶4} According to the testimony of Tyler Vest, the store’s asset protection

manager, Gribbins entered the Meijer store with nothing in his hands. Vest then

observed Gribbins on the store’s video surveillance system attempting to leave the

store with multiple reusable store bags containing merchandise without going through

the check-out lane. Vest confronted Gribbins in person in the lobby of the store, where

he recovered several items from Gribbins. These included stuffed animals and

University of Cincinnati blankets. From this exchange, Vest surmised that Gribbins

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had brought the reusable bags into the store and then used them to conceal

merchandise from the toy section.

{¶5} Vest confronted Gribbins and identified himself as Meijer’s asset

protection staff. Vest asked Gribbins to return to the store, but Gribbins ran out of the

store, jumped into a car, and took off.

{¶6} Vest had already contacted the police, because he had been warned

earlier in the day about Gribbins by a theft prevention officer at another local Meijer

store. As a result, Vest was on the lookout for Gribbins and had alerted the police as

soon as Gribbins appeared on the store security camera. According to Vest, Gribbins

had active warrants for his arrest involving thefts at other Meijer stores and was the

subject of a trespass notice preventing him from entering any Meijer properties.

{¶7} Responding to Vest’s call, Officer Jeffery Butler of the Cincinnati Police

Department arrived on the scene after Gribbins drove away. He spoke with Vest, made

a positive identification of Gribbins, and then filed the complaint against Gribbins the

next day.

{¶8} Gribbins was not arrested on the theft and criminal trespass charges

until November 18, 2023, over 22 months after the charges were filed. During those

22 months, the state did not attempt to arrest Gribbins or to otherwise bring him to

trial.

{¶9} Shortly after his arrest, Gribbins filed a motion to dismiss the charges

against him on the basis that the state had violated his constitutional right to a speedy

trial. After a hearing at which both Butler and Vest testified, and at which the Meijer

surveillance video viewed by Vest was presented, the trial court denied the motion.

Gribbins then pleaded no contest, was found guilty as charged, and was sentenced to

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180 days in jail with 12 days of credit on the theft offense and 12 days of incarceration

with 12 days credit on the criminal trespass offense.

{¶10} Gribbins now appeals, raising a single assignment of error related to the

trial court’s denial of his speedy-trial motion.

Speedy Trial

{¶11} Appellate review of a speedy-trial claim involves a blended question of

law and fact. State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, ¶

15. On appeal, we defer to the trial court’s factual findings so long as they are

supported by competent, credible evidence, but we review the application of law to

those facts de novo. Id.

{¶12} In determining whether the defendant’s constitutional right to a speedy

trial has been violated, courts consider four factors, taken from Barker v. Wingo, 407

U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.22 101 (1972): (1) the length of the delay; (2) the

reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4)

the prejudice to the defendant.

1. Length of the Delay

{¶13} The first factor to consider is the duration of the pre-arrest delay. Id.

This factor is viewed as a necessary trigger to the remaining speedy-trial factors. State

v. Duncan, 1st Dist. Hamilton No. C-200079, 2021-Ohio-3229, ¶ 14. Courts have not

adopted a hard and fast rule that requires a specific time threshold to warrant further

inquiry into whether a speedy-trial violation occurred. See State v. Benton, 1st Dist.

Hamilton No. C-210476, 2023-Ohio-153, ¶ 20. Nonetheless, this court has found a

delay of nine months for a misdemeanor sufficient to trigger speedy-trial analysis. See

State v. Sears, 166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st

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Dist.); see also Duncan at ¶ 14 (recognizing a 13-month delay as sufficient to satisfy

the first prong of the speedy-trial test). The delay in Gribbins’s case was 22 months.

Under our precedent, this delay was sufficiently lengthy to trigger the remaining

Barker factors.

2. The Reason for the Delay

{¶14} The second factor focuses on the state’s explanation for the delay. State

v. Mughni, 2022-Ohio-626, 185 N.E.3d 678, ¶ 9 (1st Dist.). Because delay can be both

inevitable and for good reason, different reasons for delay are looked upon with

different levels of scrutiny. Id. Acts taken with the intent to deliberately prolong the

proceeding are strongly held against the state. State v. Muhammadel, 1st Dist.

Hamilton No. C-190683, 2021-Ohio-567, ¶ 15. Comparatively, where delay is a product

of a neutral reason, such as the state’s negligence or failure to act, the period of time

weighs less harshly against the government. Id.

{¶15} The record here reveals that the state conducted no investigation into

Gribbins’s whereabouts during the 22 months the charges were pending. While the

state did not act to obstruct Gribbins’s right to a speedy trial, it certainly took no action

to guarantee it either. Considering similar inaction in State v. Mughni, 1st Dist.

Hamilton Nos. C-210334, C-210335, and C-210336, 2022-Ohio-626, ¶ 11, we held that

the state’s negligence in failing to locate the defendant weighed against it in the

speedy-trial calculus, although not heavily.

{¶16} Gribbins’s case, however, is not identical to Mughni. In weighing the

reason for the delay, we are mindful of the fact that Gribbins would have had an

opportunity to face a more prompt trial had he not left the scene when apprehended

by Vest. Therefore, unlike the defendant in Mughni, Gribbins bears some degree of

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responsibility for the gap between the incident and his arrest, and the delay was not

entirely of the state’s making.

{¶17} Given that both Gribbins and the state contributed to the pre-arrest

delay in this case, we assess the second Barker factor as neutral between the parties.

The reason for the delay weighs in neither party’s favor in determining whether

Gribbins’s speedy-trial rights were violated.

3. The Defendant’s Assertion of the Right

{¶18} Next we consider whether Gribbins timely asserted the right to a speedy

trial. See Barker, 407 U.S. at 531-532, 92 S.Ct. 2182, 33 L.Ed.22 101. Gribbins filed

his motion to dismiss the charges on speedy-trial grounds within ten days of his arrest.

He therefore timely invoked his right to a speedy trial.

4. Prejudice to the Defendant

{¶19} The final Barker factor focuses on whether the defendant suffered

prejudice as a result of the delay. Id. Prejudice can take two forms. It can be actual,

such as when a defendant’s ability raise specific defenses or elicit testimony from

critical witnesses is compromised. See Muhammadel, 1st Dist. Hamilton No. C-

190683, 2021-Ohio-567, at ¶ 39. Or it can be presumed. Id. at ¶ 31. The notion of

presumed prejudice in speedy-trial cases arises in part because prejudice to the

defense is the most serious interest protected by the constitutional guarantee, but is

often difficult to prove. Barker at 532. The presumption of prejudice is also grounded

in the state’s culpability in failing to bring the defendant to trial. Muhammadel at ¶

31.

{¶20} As a result, courts have connected the inquiry into presumed prejudice

to the state’s degree of responsibility for pre-arrest delay. For example, in

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Muhammadel, we declined to presume prejudice because the defendant lived a

nomadic lifestyle and the state had made some efforts to locate him, even though the

delay between incident and arrest was two years. Id. at ¶ 13 , 22, 37. But in State v.

Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, ¶ 2, 17, a case involving

felony charges, we presumed prejudice where the defendant was not arrested for over

a year without explanation. And we similarly presumed prejudice in State v. Sears,

166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060, ¶ 12 (1st Dist.), where a

defendant was not served with a warrant for nine months, because the police had

knowledge of his address the entire time the warrant was active.

{¶21} Turning to Gribbins’s case, there is no argument that Gribbins was

actually prejudiced by the delay. Both Vest and Butler were available to testify to the

incident, and the surveillance video from the store had been preserved. Gribbins

identified no witness or piece of evidence he was unable to present due to the delay in

this case. Accordingly there was no specific, identifiable prejudice to Gribbins’s

defense as a result of the delay in bringing him to trial.

{¶22} We therefore consider whether prejudice can be presumed. While there

is no indication that the state made any effort to locate Gribbins during the 22 months

that the charges were pending in this case, that inaction is not dispositive of the

prejudice inquiry in this case. The delay began when Gribbins left the scene rather

than reentering the store as instructed by Vest. Given that Gribbins had previously

been issued warrants for theft offenses involving Meijer stores and had been issued a

trespass notice to stay out of Meijer properties, Gribbins was likely aware that an arrest

would result were he to remain at the store. Thus, we cannot attribute the passage of

time entirely to the state’s culpability.

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{¶23} While we do not condone the state’s neglect in failing to locate Gribbins,

we decline to presume prejudice under the specific facts of this case. In reaching that

conclusion, we highlight the misdemeanor nature of the charges, the fact that the state

did not actively obstruct Gribbins’s speedy-trial rights, and Gribbins’s role in

frustrating his own arrest. This conclusion is consistent with our opinion in

Muhammadel, where we found no presumed prejudice despite a longer delay than the

one in this case. Muhammadel, 1st Dist. Hamilton No. C-190683, 2021-Ohio-567, at

¶ 22. The defendant’s nomadic lifestyle in Muhammadel undermined the state’s

ability to bring him to arrest, thus mitigating the state’s responsibility for the delay,

much like Gribbins’s conduct in leaving the store hampered the state’s intervention

and lessened its culpability here. Id. at ¶ 13, 37.

{¶24} Accordingly, the Barker factors do not suggest that Gribbins’s right to a

speedy trial was violated. While the 22-month delay in this case gives cause for

concern, and Gribbins promptly asserted his speedy-trial right, both the state and

Gribbins contributed to the delay, and there is no actual or presumed prejudice to

Gribbins’s defense. We therefore overrule Gribbins’s sole assignment of error.

Conclusion

{¶25} The trial court did not err in denying Gribbins’s motion to dismiss the

charges against him on speedy-trial grounds. We accordingly affirm the judgments of

the trial court in the appeal numbered C-230676. The appeals numbered C-230677

and C-230678 are dismissed.

Judgment accordingly.

BOCK, P.J., and CROUSE, J., concur.

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Please note: The court has recorded its own entry on the date of the release of this opinion.