State v. Hahaj

2025 Ohio 52

• Court: Ohio Court of Appeals
• Decided: January 10, 2025
• Docket: C-240033
• Status: Published

Opinion

[Cite as State v. Hahaj, 2025-Ohio-52.]

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

STATE OF OHIO, : APPEAL NO. C-240033 TRIAL NO. C/23/CRB/5114/A Plaintiff-Appellant, :

vs. : OPINION KIMBERLY HAHAJ, : Defendant-Appellee. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: January 10, 2025

Connie Pillich, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

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

CROUSE, Judge.

{¶1} In March 2023, the State of Ohio filed a criminal complaint against

defendant-appellant Kimberly Hahaj alleging that, nearly two years earlier, she had

committed gross neglect while turning a patient at her nursing-home job. Hahaj

successfully moved to dismiss the complaint on the basis that the State’s

preindictment delay was unjustifiable and prejudicial. The State now appeals, arguing

that the trial court erred in granting Hahaj’s motion, because she failed to show

prejudice. For the reasons set forth below, we agree with the State, and so reverse the

judgment of the trial court and remand this cause for further proceedings.

I. BACKGROUND

{¶2} According to the criminal complaint and probable-cause affidavit,

Hahaj worked as a state-tested nursing assistant at Meadowbrook Care Center, a

nursing home in Cincinnati, Ohio. The State alleged that, on May 18, 2021, Hahaj

unsuccessfully attempted to turn a Meadowbrook resident without the aid of another

staff member, in defiance of that resident’s care sheet, which cautioned that such a

procedure required two staff members. As a result, the resident fell from the bed and

suffered bilateral femur fractures.

{¶3} This incident was reported to the Ohio Department of Health, which in

turn referred the matter to the office of the Ohio Attorney General (“OAG”) in

September 2021. Lynnette Rodrigue, a special agent in the OAG’s Medicaid Fraud

Control Unit, was assigned to the case about a month later. Over the following ten

months, Rodrigue gathered information, records, and other evidence concerning the

incident—contacting the injured resident’s family, soliciting records from

Meadowbrook, and conducting interviews with Meadowbrook employees. When

investigators reached out to obtain records from Meadowbrook in mid-2022, however,

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the facility’s new administration informed Rodrigue that much of the staff had turned

over, that several potential witnesses were no longer employed by Meadowbrook, and

that some of the records Rodrigue sought had been lost or deleted.

{¶4} Among the missing records were statements taken in the immediate

aftermath of the May 2021 incident. Perhaps to make up for this loss, the facility took

new statements from Hahaj and one other individual in 2022 regarding the incident

the year prior. Because Rodrigue did not believe statements made a year after the fact

would be useful, she discarded them.

{¶5} Before Rodrigue could close her investigation, her supervisor insisted

she find and interview one of the nurses on duty during the incident. Despite

Rodrigue’s efforts, she was unable to locate this nurse. According to the trial court’s

findings, Rodrigue concluded her investigation on August 12, 2022, and submitted her

referral to a team attorney for review in January 2023.1

{¶6} The State then filed its criminal complaint against Hahaj in the

Hamilton County Municipal Court on March 30, 2023, charging her with gross patient

neglect in violation of R.C. 2903.34(A)(2), a first-degree misdemeanor. In September,

Hahaj moved to dismiss the charge, arguing that the State’s preindictment delay had

violated her rights under the Ohio and Federal Constitutions. The trial court held a

hearing on the motion, during which Hahaj introduced two pieces of correspondence

between Meadowbrook administrators and state investigators, both dating from June

2022, which suggested that certain witnesses were no longer reachable, and certain

facility records no longer accessible. The State then called Rodrigue to the stand, who

1 The transcript of the trial court’s oral ruling records the trial judge as saying, “In January of 2022

[Rodrigue] submitted her referral to the team.” However, it is clear from context that the judge simply misspoke, and that he meant January of 2023.

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testified to her timeline and process—including her destruction of the 2022

statements.

{¶7} The trial court granted Hahaj’s motion to dismiss in an oral ruling on

December 15, 2023. Based on Hahaj’s documentary evidence and Rodrigue’s

testimony, it held that the State’s delay in filing the complaint “did cause actual

prejudice,” because evidence had been lost or destroyed. The trial court further held

that the State’s delay, especially the seven-month gap from the conclusion of

Rodrigue’s investigation in August 2022 to the filing of the criminal complaint in

March 2023, “was not justifiable.” The State timely appealed.

II. DISMISSAL FOR PREINDICTMENT DELAY

{¶8} In its sole assignment of error, the State contends that “the trial court

erred as a matter of law by dismissing the case due to preindictment delay.” The State

contends that Hahaj’s evidence was “clearly insufficient to demonstrate actual

prejudice.”

A. Standard of Review

{¶9} Neither this court nor the Ohio Supreme Court has set forth the

standard for reviewing a trial court’s decision to dismiss an indictment for

preindictment delay.

{¶10} The State offers us no standard of review, while Hahaj contends that we

review such rulings for an abuse of discretion, quoting the Eighth District’s decision

in State v. Miller, 2021-Ohio-1878, ¶ 23 (8th Dist.). Miller says that “‘[d]ecisions to

grant or deny a motion to dismiss on grounds of preindictment delay are reviewed for

an abuse of discretion.’” Id. While Miller attributes this quote to State v. Darmond,

2013-Ohio-966, ¶ 33, Darmond says no such thing. In fact, Darmond says nothing at

all about preindictment-delay dismissals, as that opinion addressed a trial court’s

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“discretion in determining a sanction for a discovery violation,” up to and including

dismissal. Id.2

{¶11} However, in the same paragraph, the Miller court also asserts that

“‘[c]ourts reviewing a decision on a motion to dismiss for pre-indictment delay accord

deference to the lower court’s findings of fact but engage in a de novo review of the

lower court’s application of those facts to the law.’” See Miller at ¶ 23, quoting State v.

Henley, 2006-Ohio-2728, ¶ 8 (8th Dist.). Hahaj also quotes this standard in her brief.

{¶12} These two standards are mutually exclusive. De novo review requires a

reviewing court to examine an issue afresh and to substitute its judgment for that of

the tribunal below, should the two conflict. Compare Hostiuck v. Gertz, 1985 Ohio

App. LEXIS 8305, *5 (1st Dist. July 10, 1985), quoting Resek v. City of Seven Hills, 9

Ohio App.3d 224, 226 (8th Dist. 1983) (“‘In an appeal de novo . . . the

reviewing court is free to substitute its judgment for that of the administrative

tribunal.’”). By contrast, abuse-of-discretion review “does not permit an appellate

court to simply substitute its judgment for that of the trial court.” (Emphasis added.)

See Darmond at ¶ 34. We thus cannot review the trial court’s application of law to fact

both de novo and for an abuse of discretion.

{¶13} Many opinions from our sister districts review preindictment-delay

claims under Hahaj’s second proposed standard—assessing legal and mixed questions

de novo, while deferring to the trial court’s factual findings. See, e.g., State v. Buis,

2 We can trace the application of this abuse-of-discretion standard in the preindictment-delay

context back to State v. Jackson, 2015-Ohio-4274, ¶ 3 (8th Dist.), in which the Eighth District declared, “Decisions to grant or deny a motion to dismiss on grounds of preindictment delay are reviewed for an abuse of discretion. State v. Darmond, [2013-Ohio-966], ¶ 33.” Although the Jackson court cited the Ohio Supreme Court’s opinion in Darmond, it never purported to quote it. Nevertheless, at least two of our sister districts mistakenly attributed this sentence in Jackson to the Supreme Court, and so held that preindictment-delay dismissals are reviewed for an abuse of discretion. See, e.g., State v. Bost, 2021-Ohio-2190, ¶ 28 (5th Dist.); State v. Stevens, 2023-Ohio-3280, ¶ 98 (4th Dist.).

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2018-Ohio-1727, ¶ 10 (2d Dist.); State v. Porter, 2021-Ohio-2539, ¶ 7 (3d Dist.); State

v. Pinney, 2021-Ohio-3483, ¶ 7 (11th Dist.). And many of these decisions further

clarify what that factual deference should look like, by noting that a reviewing court

should “accept a trial court’s findings of fact if they are supported by competent,

credible evidence.” See State v. Craig, 2023-Ohio-1003, ¶ 16 (10th Dist.), citing State

v. McKinley, 2020-Ohio-3664, ¶ 32 (8th Dist.); see also, e.g., State v. Jabbar,

2021-Ohio-1191, ¶ 19-20 (8th Dist.).

{¶14} While it is true that many decisions to dismiss an indictment are subject

to abuse-of-discretion review, see generally 29 Ohio Jur.3d, Criminal Law: Procedure,

§ 2297 (2024), there are many indictment dismissals that are not discretionary. For

example, a decision to dismiss an indictment on double-jeopardy grounds poses a pure

question of law, which an appellate court considers de novo. See, e.g., State v. Mutter,

2017-Ohio-2928, ¶ 13. The same is true when a court dismisses an indictment because

the charges are substantively unconstitutional. See, e.g., State v. Thacker,

2024-Ohio-5835, ¶ 7 (1st Dist.).

{¶15} Ohio courts have long reviewed dismissals for speedy-trial violations—

which implicate many of the same issues raised by preindictment-delay claims—as

“mixed question[s] of fact and law,” requiring the appellate court to “employ a de novo

standard of review, to determine whether the facts satisfy the applicable legal

standard,” while “giv[ing] due weight to the inferences drawn from the facts found by

the trial court as long as they are supported by competent, credible evidence.” See

State v. Rice, 2015-Ohio-5481, ¶ 15 (1st Dist.); accord State v. Long, 2020-Ohio-5363,

¶ 15.

{¶16} Given the similar questions and challenges inherent in resolving

speedy-trial and preindictment-delay claims, as well as the similar interests the two

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rights protect, we join our sister districts who have held that the standard of review

applied in the speedy-trial context applies here as well. To accept the Eighth District’s

contrary abuse-of-discretion standard would imply that a trial court had “discretion”

either to define what process a criminal defendant is due, or to permit a concededly

unconstitutional prosecution to proceed. Neither of these would be consistent with the

constitutional guarantees enshrined in the Due Process and Due Course of Law

Clauses.

{¶17} We therefore review de novo the trial court’s legal determinations

regarding Hahaj’s motion to dismiss the complaint for preindictment delay, as well as

its application of those legal standards to the facts before it. At the same time, we defer

to the trial court’s underlying factual determinations and inferences, so long as those

findings and inferences were supported by competent, credible evidence.

B. Merits

{¶18} The Sixth Amendment to the United States Constitution guarantees

that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial.” Likewise, Article I, Section 10 of the Ohio Constitution guarantees that,

“[i]n any trial, in any court, the party accused shall be allowed . . . to have . . . a speedy

public trial by an impartial jury.” While these speedy-trial provisions guard against

extended delays between indictment and trial, they “afford no protection to those not

yet accused.” See United States v. Marion, 404 U.S. 307, 313 (1971) (under U.S. Const.,

amend. VI); State v. Luck, 15 Ohio St.3d 150, 152-153 (1984) (under Ohio Const., art.

I, § 10). Instead, “[s]tatutes of limitations provide the ultimate time limit within which

the government must prosecute a defendant—a definite point ‘beyond which there is

an irrebuttable presumption that a defendant’s right to a fair trial would be

prejudiced.’” State v. Jones, 2016-Ohio-5105, ¶ 11, quoting Marion at 322.

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{¶19} However, “when unjustifiable preindictment delay causes actual

prejudice to a defendant’s right to a fair trial despite the state’s initiation of

prosecution within the statutorily defined limitations period,” both the Federal

Constitution’s Due Process Clause and the Ohio Constitution’s Due Course of Law

Clause provide a backstop. (Emphasis added.) Jones at ¶ 11-12. The State’s delay in

filing charges violates a criminal defendant’s rights under these provisions “only when

it [1] is unjustifiable and [2] causes actual prejudice.” Id. at ¶ 12; accord Luck at

paragraph two of the syllabus.

{¶20} To adjudicate such preindictment-delay claims, Ohio courts have

“firmly established a burden-shifting framework.” Jones at ¶ 13. First, the defendant

must present evidence that the State’s delay has caused “actual prejudice” to the

defense, as even “unjustifiable delay does not violate due process unless it results in

actual prejudice.” Id. at ¶ 13 and 16. But once the defendant has shown prejudice, “the

burden shifts to the state to produce evidence of a justifiable reason for the delay.” Id.

at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217 (1998).

{¶21} Determining whether a defendant has experienced “actual prejudice”

from a delay “involves a delicate judgment and a case-by-case consideration of the

particular circumstances.” (Cleaned up.) Jones, 2016-Ohio-5105, at ¶ 20. Unlike in the

speedy-trial context, “no presumption of prejudice arises in the due-process context

when a preindictment delay exceeds a particular length of time.” State v. Adams,

2015-Ohio-3954, ¶ 98, citing United States v. Schaffer, 586 F.3d 414, 425 (6th Cir.

2009). Thus, the Ohio Supreme Court has cautioned that the “burden upon a

defendant seeking to prove preindictment delay violated due process is nearly

insurmountable, especially because proof of prejudice is always speculative.” (Cleaned

up.) Id. at ¶ 100.

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{¶22} In this case, Hahaj contends that the State’s preindictment delay caused

her to suffer actual prejudice because “evidence was lost and witnesses could not be

located.” Ordinarily, the mere “possibility that memories will fade, witnesses will

become inaccessible, or evidence will be lost is not sufficient to establish actual

prejudice.” Id. at ¶ 105. But that “does not mean . . . that demonstrably faded memories

and actually unavailable witnesses or lost evidence cannot satisfy the actual-prejudice

requirement.” Jones at ¶ 21. Such losses become prejudicial where particular lost

evidence “would minimize or eliminate the impact of the state’s evidence and bolster

the defense.” Id. at ¶ 28, citing Luck, 150 Ohio St.3d at 157-158.

{¶23} So, how can a defendant show she was prejudiced by the loss of evidence

she never had? On the one hand, we know she must do more than simply point to

evidence lost because of delay. See Adams at ¶ 103 (holding that death of possible

witness was not prejudicial unless “the defendant can identify exculpatory evidence

that was lost and show that the exculpatory evidence could not be obtained by other

means”). But on the other, she “need not know what the exact substance of an

unavailable witness’s testimony would have been in order to establish actual

prejudice.” Jones at ¶ 28. Rather, to show that evidentiary loss or degradation

prejudiced her defense, a defendant must identify with specificity both (1) what

“missing evidence or unavailable testimony” the State’s delay deprived her of, and (2)

how that missing evidence, if she had it, “would minimize or eliminate the impact of

the state’s evidence and bolster the defense”—even if she cannot prove exactly what

that evidence or testimony would have disclosed. Id., citing Luck, 150 Ohio St.3d at

157-158.

{¶24} Hahaj’s primary evidence of prejudice consists of two documents

obtained from the State in discovery. The first document is a June 2022 letter from an

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administrator at Meadowbrook, detailing how changes in administration at the facility

had “negatively impacted [their] search for the requested items.” These negative

impacts included the loss of statements made by individuals near the date of the

incident and the departure of the nurses on duty during the incident from

Meadowbrook. The second document is a June 2022 email, addressed directly to

Rodrigue, which contained representations from an individual named “Alexandra”

that Meadowbrook’s “oncall service” did not keep records dating “that far back into

2021.” In addition to these documents, Hahaj points to Rodrigue’s testimony at the

hearing, during which the investigator disclosed that she had been given statements

during her investigation (one from Hahaj and one from another individual), only to

discard those statements before the State filed charges.

{¶25} The complaint alleged that Hahaj improperly performed a multi-person

turn on her own, and thereby “knowingly fail[ed] to provide” her patient with

“treatment, care, goods, or service that is necessary to maintain . . . health or safety . . .

result[ing] in serious physical harm.” See R.C. 2903.33(C)(1) (defining “gross neglect”

as used in R.C. 2903.34). Hahaj argues that the State’s “delay prevented the defense

from obtaining any records from the facility and caused critical witnesses to become

unavailable.” But this fails to address key questions: How would those records have

benefitted her defense? Why were those witnesses “critical”? What might any of the

evidence or testimony have said?

{¶26} Hahaj was not required to show that the lost evidence would have

proven her innocent or been “directly exculpatory.” See Jones, 2016-Ohio-5105, at

¶ 27. Nor was she necessarily required to “articulate specifically” the contents of the

missing records or unavailable testimony. Id. at ¶ 28. But Hahaj was required to tender

some explanation of how the longed-for records and testimony would have bolstered

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her defense—and why she could not have obtained comparable evidence by other

means. See Adams, 2015-Ohio-3954, at ¶ 103; accord Jones at ¶ 28.

{¶27} Hahaj further suggests that Rodrigue’s decision to destroy the 2022

statements constituted “manipulation of the record in favor of the prosecution,” and

thus “shows actual prejudice.” But preindictment-delay claims concern the natural

consequences that flow from unreasonably belated charges—not the manipulation of

evidence by the prosecution. Compare Brady v. Maryland, 373 U.S. 83 (1963); Napue

v. Illinois, 360 U.S. 264 (1959). And, to the extent the deliberate character of the

State’s actions is relevant here, it goes not to the issue of prejudice, but to the

reasonableness of the delay. See Jones at ¶ 18 (“By considering the reasons for the

state’s delay before independently determining whether Jones established actual

prejudice because of that delay, the Eighth District majority erred.”). Thus, for Hahaj

to prevail on her evidentiary-destruction claim—if such a claim were cognizable under

Marion and Luck—she would still have needed to explain how that destruction

prejudiced her.

{¶28} Even accepting the trial court’s implicit factual conclusion, i.e., that

some records were lost and some witnesses rendered unavailable because of the delay,

Hahaj failed to adequately demonstrate or explain how any of that lost evidence would

have materially contributed to her defense. In essence, the court below erred in

equating the loss of records and unavailability of witnesses with proof of actual

prejudice. But “[a]ctual prejudice exists” only if that “missing evidence or unavailable

testimony” could “minimize or eliminate the impact of the state’s evidence and bolster

the defense.” Jones at ¶ 28. Because Hahaj has offered no explanation of what the lost

statements and unavailable witness would have disclosed, or of how those disclosures

would have aided her case, she has failed to show actual prejudice. And because Ohio's

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burden-shifting regime did not require the State to justify its delay until Hahaj had

shown prejudice, we do not address the reasonableness of the State’s delay.

{¶29} In sum, we hold that Hahaj did not offer evidence sufficient to satisfy

the actual-prejudice standard, as defined in Luck and its progeny. The State’s sole

assignment of error is therefore sustained, the judgment of the trial court dismissing

the charge is reversed, and the cause is remanded for further proceedings consistent

with this opinion.

Judgment reversed and cause remanded.

BERGERON, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.