State v. Meeks

2022 Ohio 6

• Court: Ohio Court of Appeals
• Decided: January 3, 2022
• Docket: 21 CAA 02 0010
• Status: Published

Opinion

[Cite as State v. Meeks, 2022-Ohio-6.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 21 CAA 20 0010 WILLIAM M. MEEKS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 20 CRI 08 0516

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 3, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL ADDISON M. SPRIGGS Delaware County Prosecuting Attorney Assistant Ohio Public Defender 250 East Broad Street, Suite #1400 CHRISTOPHER E. BALLARD Columbus, Ohio 43215 Assistant Prosecuting Attorney 145 N. Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 21 CAA 20 0010 2

Hoffman, P.J. {¶1} Defendant-appellant William Meeks appeals his convictions and sentence

entered by the Delaware County Court of Common Pleas, on ten counts of rape and three

counts of gross sexual imposition, following a jury trial. Plaintiff-appellee is the state of

Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On August 15, 2019, the Delaware County Grand Jury indicted Appellant,

in case no. 19 CR I 08 0580, on three counts of rape, in violation of R.C. 2907.02(A)(1)(b);

three counts of rape, in violation of R.C. 2907.02(A)(2); one count of gross sexual

imposition, in violation of R.C. 2907.05(A)(4); and one count of gross sexual imposition,

in violation of R.C. 2907.05(A)(1). All charges involved Jane Doe, the daughter of his

long-term girlfriend with whom he lived.

{¶3} On September 29, 2019, defense counsel filed a motion to suppress which

the trial court scheduled for hearing on November 8, 2019. On November 6, 2019,

defense counsel filed a motion requesting a competency evaluation. The trial court

continued the suppression hearing and scheduled both motions for hearing on February

7, 2020. The trial court sua sponte continued the hearing until March 16, 2020. The trial

court, again on its own motion, continued the matter until April 29, 2020. On April 28,

2020, defense counsel and the state filed a joint motion for a continuance until May 13,

2020, advising the trial court they were having difficulty playing the relevant recordings

via Zoom video conferencing, which was in place due to the Covid-19 pandemic. The

parties acknowledged “speedy trial remains tolled due to [Appellant’s] pending motions

[sic] for competency evaluation and motions [sic] to suppress.” April 28, 2020 Motion to

Continue at 2, unpaginated. Delaware County, Case No. 21 CAA 20 0010 3

{¶4} The trial court conducted the hearing on the motions on May 13, 2020, and

found Appellant competent to stand trial. The parties filed post-hearing briefs on the

suppression issue. Via Judgment Entry filed July 9, 2020, the trial court granted, in part,

Appellant’s motion to suppress. The trial court scheduled the matter for jury trial on August

4, 2020.

{¶5} Upon motion of Appellant, the trial court continued the trial until September

29, 2020. The state moved to dismiss case no. 19 CR I 08 0580, due to the filing of a

superseding indictment on August 13, 2020, in case no. 20 CR I 08 0516. The indictment

in case no. 20 CR I 080 0516 charged Appellant with three counts of rape, in violation of

R.C. 2907.02(A)(1)(b); three counts of rape, in violation of R.C. 2907.02(A)(2); one count

of gross sexual imposition, in violation of R.C. 2907.05(A)(4); and one count of gross

sexual imposition, in violation of R.C. 2907.05(A)(1), relating to Jane Doe; one count of

gross sexual imposition, in violation of R.C. 2907.05(A)(4), relating to Adam Doe, one of

Jane Doe’s brothers; and four counts of rape, in violation of R.C. 2907.02(A)(1)(b); and

one count of gross sexual imposition, in violation of R.C. 2907.05(A)(4), relating to John

Doe, Jane Doe’s other brother.

{¶6} On September 1, 2020, Appellant filed a motion to continue the September

29, 2020 trial. The trial court granted the continuance and rescheduled the trial until

October 27, 2020. On October 15, 2020, the state filed four motions in limine. On October

20, 2020, Appellant filed three motions in limine and a motion to exclude any evidence of

other acts or wrongs. Appellant filed a fourth motion in limine on October 21, 2020. On

October 23, 2020, Appellant filed motions to determine the competency of Jane Doe, Delaware County, Case No. 21 CAA 20 0010 4

Adam Doe, and John Doe. Appellant also filed a motion to continue the October 27, 2020

trial. The trial court granted the motion and rescheduled the trial until January 12, 2021.

{¶7} Prior to the commencement of trial, the trial court discussed the admission

of prior consistent statements with defense counsel as follows:

THE COURT: Okay. I want to, I guess, nail down a little bit about

defense’s position here because I think it has to do somewhat with some of

the evidence and whether it comes in and when it comes in.

In terms of defense position at this point, trial strategy, is your

position going to be that the allegations are false and fabricated; or is there

a different defense position that you’re going to afford?

MS. SMITH [DEFENSE COUNSEL]: There’s a different defense,

Your Honor.

THE COURT: Go ahead.

MS. SMITH: No. I’m definitely not going to call [Jane Doe] a liar. I’m

not going to challenge, you know, what she said and call them lies. Our

defense is basically the State has the burden of proof, proof beyond a

reasonable doubt, and that’s my argument.

THE COURT: So you do not intend in your opening or on cross-

examination of the alleged victims to allege that this is a fabricated story or

that there’s a motive to fabricate or that this is all made up?

MS. SMITH: I am not going to on cross challenge [Jane Doe], that

this is fabrication, that she made this up. As far as [Adam Doe] and [John Delaware County, Case No. 21 CAA 20 0010 5

Doe] are concerned, I will only go – I will only address, I guess, the timing

of their allegations.

THE COURT: And when you say timing, explain to me what you

mean.

MS. SMITH: When they came forward.

THE COURT: Is that in the context of –

MS. SMITH: The context of them saying something to somebody.

THE COURT: I understand. So is that for the purpose of indicating

that the statement – that their allegations are false?

MS. SMITH: I’m not going to – I’m not going to say, “What you’re

saying is false.” I’m just going to talk about when they came forward, just

the timing issues.

THE COURT: Okay. Well, that sounds like – We’ll let that come out.

Sounds like that may have some effect on some of the testimony that comes

in, who the State calls. But we can cross that bridge when we come to it.

Transcript of January 12, 2021 Trial, Vol. I, pp. 11-13.

{¶8} Thereafter, the trial court conducted the voir dire and the jury was

empaneled and sworn.

{¶9} Sergeant Sean Snead with the Delaware Police Department testified he

was on routine patrol, at approximately 9:00 p.m. on September 3, 2017, when he was

dispatched to Londontown Apartments, Apartment E, 317 Chelsea Street, Delaware,

Delaware County, Ohio, on a sexual assault complaint. He was met at the scene by Delaware County, Case No. 21 CAA 20 0010 6

Sergeant Willauer. Sergeant Snead walked around the back of the apartment and

observed about a dozen people outside. He described the people as “a little agitated and

talking loud.” Tr. Vol. I at 194. Sergeant Snead located Jane Doe, the complainant, and

her mother, Kimberly Fleshman, and asked them to step away from the others so he could

speak with them.

{¶10} After speaking with Jane Doe and Fleshman as well as two other

individuals, Sergeant Snead determined the suspect was Appellant. The sergeant

contacted Detective Daniel Madden and relayed the information he had received.

Sergeant Snead had been advised Appellant would be leaving the apartment; therefore,

Detective Madden planned to interview the individuals at a later time. Sergeant Snead

did not speak with Appellant.

{¶11} Sergeant Adam Willauer testified he was also dispatched to Londontown

Apartments on the evening of September 3, 2017. Sergeant Willauer arrived at the scene,

recalling people were outside and there “appeared to be some sort of commotion.

Obviously, some people were upset about something going on.” Tr. Vol. I, 207. A female

told Sergeant Willauer he needed to speak with the man, who was subsequently identified

as Appellant, walking away from the residence. The sergeant stopped Appellant and

spoke with him. Sergeant Willauer stayed with Appellant until he was permitted to leave

the scene and then escorted him away from the apartment complex to avoid any potential

issues.

{¶12} Prior to Jane Doe’s testimony, the trial court again addressed the admission

of prior consistent statements, stating: Delaware County, Case No. 21 CAA 20 0010 7

* * * At this point, I’m not inclined to allow testimony on statements

by the alleged victims . . . to other folks. That would be hearsay. I think I

want to hear what the cross-examination is first and then on redirect if that’s

appropriate. Then we can get into those issues at that point.

I just – I didn’t hear – I’m not 100 percent sure of the maze argument

and what that is. But I guess I’d like to hear more before I feel like the door

is opened on that issue. So redirect if that’s appropriate. Okay.

Tr. Vol. II, 225-226.

{¶13} The state argued the testimony was not hearsay as such testimony would

be elicited only to establish the fact the victims had previously disclosed sexual abuse,

not the specific content of the disclosures. After conducting research, the trial court

concluded “the assertion that is made in the statement is the fact of the sexual assault,

and as long as it’s fairly narrowly tailored to the disclosure and not the content of the

statement, I don’t think it’s hearsay.” Tr. Vol. II, 237. Counsel for Appellant put her

objection on the record.

{¶14} The state called Jane Doe to the stand. Jane Doe, who was 20 years old

at the time of the trial, testified her family moved into the Londontown Apartments when

she was four years old and lived there until she was 16 years old. Jane Doe lived with

her mother, her two younger brothers (Adam Doe and John Doe) and younger sister

(M.M.), and Appellant, her mother’s boyfriend. According to Jane Doe, Appellant acted

as a step-father. Jane Doe indicated her mother worked “a lot.” Jane Doe explained,

because Appellant did not have stable job, he was around more often than her mother. Delaware County, Case No. 21 CAA 20 0010 8

{¶15} Jane Doe testified the first time she remembered Appellant sexually abusing

her occurred when she was home from school one day because she was sick. She was

in elementary school at the time. Appellant was the only person home with her at the

time. Jane Doe recalled Appellant placed his finger inside her vagina and she did not

understand what he was doing. Appellant also touched her chest, explaining she had not

developed breasts at that point, and her buttocks. Jane Doe stated she was in her bed

when it happened and Appellant moved onto the bed with her. Appellant’s abuse of Jane

Doe continued until she was in high school. The abuse most often occurred in the

bedroom Jane Doe shared with her younger sister with Appellant using the guise of

cleaning the room and turning on the vacuum to drown out any sound.

{¶16} Jane Doe recalled Appellant would take her clothes off or tell her to remove

her clothes then touch her breasts and nipples, her legs, her bottom, and her vagina.

Appellant would remove his own clothing, sometimes just his pants and other times, his

pants and shirt. Jane Doe indicated Appellant’s penis would be erect when he was

touching her and he did ejaculate. Appellant forced Jane Doe to masturbate him and

perform oral sex upon him. Appellant performed oral sex on Jane Doe and engaged in

vaginal intercourse with her. Appellant threatened to take Jane Doe’s family away from

her if she told anyone what he was doing to her. Jane Doe did not think her mother or

her siblings would believe her. She was afraid of Appellant because he was bigger than

she was.

{¶17} Jane Doe remembered one specific incident when Appellant drove her to a

nearby cemetery and engaged in vaginal intercourse with her. While at the cemetery,

Appellant engaged in sexual intercourse with her in the car and then outside the car, on Delaware County, Case No. 21 CAA 20 0010 9

the ground. When Jane Doe was 15 or 16 years old, she disclosed to her friends

Appellant was sexually abusing her. Following an argument and the arrival of the police

on September 3, 2017, Jane Doe was taken to Children’s Hospital in Columbus for an

examination.

{¶18} Catherine Davis testified she worked at the Child Advocacy Center (“CAC”)

at Nationwide Children’s Hospital as a trained forensic interviewer and mental health

advocate, and conducted an interview of Jane Doe on September 13, 2017. Davis stated

she acquired information about the case from Kimberly Fleshman, who had brought Jane

Doe to CAC, immediately prior to the interview with Jane Doe. Davis’ interview with Jane

Doe was recorded. The recording was played for the jury with some redactions. Davis

recalled Jane Doe was “a little bit anxious. . .[b]ut she seemed ready to just jump into it.”

Tr. Vol. II, 362-363. Davis explained, although Jane Doe went through “a range of being

happy to evasive” during the interview, “there was nothing about [her] interview that stuck

out to me as being unusual.” Tr. Vol. II, 365. Davis did not note any “red flags” which

would indicate Jane Doe had been coached.

{¶19} Melissa Scheiderer, who goes by her middle name Tamara, testified she

lived at Londontown Apartments from her birth until she was 18 years old. Scheiderer

met Jane Doe when the two girls were about 5 years old and starting elementary school,

and remained friends while they were growing up. One February, Scheiderer and Jane

Doe had a sleepover at Jane Doe’s house to celebrate their birthdays, which were close

in date. Scheiderer recalled Appellant coming into Jane Doe’s bedroom and getting in

bed with Jane Doe. When Appellant left, Scheiderer heard Jane Doe crying. At the end Delaware County, Case No. 21 CAA 20 0010 10

of the summer that same year, Jane Doe told Scheiderer Appellant had done something

inappropriate. Scheiderer stated she and Jane Doe were 7 or 8 years old.

{¶20} Julie Reisinger, Scheiderer’s mother, testified Scheiderer slept over at Jane

Doe’s home on one occasion. Reisinger recalled when Jane Doe and Scheiderer were

in fourth or fifth grade Jane Doe personally told Reisinger about inappropriate behavior

by Appellant. Jane Doe lived with Reisinger for several months following the disclosure.

On cross-examination, Reisinger stated, following Jane Doe’s disclosure, she contacted

Children’s Services and made Fleshman aware of the disclosure.

{¶21} Adam Doe, who was 19 years old at the time of trial, testified he lived at

Londontown Apartments with his family until he moved in with Tony Bennett in 2012, or

2013. Although they were not biologically related, Adam Doe called Tony Bennett “Uncle

Tony.” Adam Doe explained his mother had dated Tony Bennett’s brother when he was

“super young,” and he and his siblings spent a lot of time with Tony. Adam Doe recalled

his mother worked both morning and afternoon shifts at a nearby Speedyway so she was

“gone a lot.” Adam Doe stated Appellant moved into their apartment when he was 3 or 4

years old, and acted as a step-father to Adam Doe and his siblings. Adam Doe noted

Appellant never had a steady job while he lived with the family.

{¶22} Adam Doe recalled, when his mother was at work and the family was

cleaning, Appellant would be in Jane Doe’s room with the door shut and “we weren’t

allowed to go in there.” Tr. Vol. III, 459. Adam Doe added Appellant did not clean the

other rooms in the house other than sweep the floors.

{¶23} Adam Doe testified, “When we were little, we used to take clonidine, so we

would be passed out all night long.” Tr. Vol. III, 460. Adam Doe remembered being Delaware County, Case No. 21 CAA 20 0010 11

asleep in the hallway when he was 3 or 4 years old and Appellant tried to put his penis in

Adam Doe’s mouth. Adam Doe pretended to be asleep while this was happening. When

Adam Doe was around the same age, Appellant put his hands down the boy’s pants and

tried to grope his buttocks as the two played video games. Adam Doe disclosed

Appellant’s inappropriate touching to Tony Bennett when he (Adam Doe) was between

the ages of 3 and 7. Even after he moved out of Londontown Apartments, Adam Doe

only talked to Tony Bennett about Appellant’s abuse.

{¶24} John Doe, who was 16 years old at the time of trial, testified he lived at

Londontown Apartments until he was 14 years old. John Doe shared a bedroom with

Adam Doe until Adam Doe moved in with Tony Bennett. Like his siblings, John Doe

remembered his mother working a lot when he was growing up. John Doe stated

Appellant and his mother were “together pretty much the whole time” the family lived at

Londontown Apartments. Tr. Vol. III, 494. Appellant worked “side jobs mostly and helped

out Mom any way he could.” Tr. Vol. III, 495.

{¶25} John Doe recalled Appellant would clean Jane Doe’s room “specifically with

the vacuum, but leave the door closed.” Tr. Vol. III, 496. Jane Doe would be in her room

when Appellant was cleaning. John Doe noted, other than Jane Doe’s room, Appellant

“rarely” cleaned other parts of the house. John Doe could hear the vacuum, but could tell

the vacuum was in the same spot. When John Doe was little and Appellant bathed him,

Appellant would rub his penis with a loofah or hold the loofah on his penis for a longer

than necessary amount of time. Appellant also touched John Doe’s penis with his hand.

John Doe also testified, when his mother was not home, Appellant would enter his

bedroom, shut the shades, and force him to have anal intercourse and perform fellatio. Delaware County, Case No. 21 CAA 20 0010 12

John Doe remembered when he was about 9 years old, Appellant and an unknown man

entered his bedroom and took turns engaging in anal sex with him. Once he was 13

years old, John Doe avoided being at the house.

{¶26} John Doe feared Appellant would abuse his little sister, M.M., so he never

disclosed the abuse. After Appellant was in custody, John Doe felt safe and told Tony

Bennett about the abuse. On cross-examination, John Doe acknowledged he had fun

times with Appellant while he was growing up.

{¶27} Scott Bennett, who is Tony Bennett’s second cousin, testified he has known

Jane Doe, Adam Doe, and John Doe for approximately 10 years and has lived with Tony

Bennett for the same amount of time. Scott Bennett stated Jane Doe, Adam Doe, and

John Doe spent “almost every weekend” with him and Tony Bennett. The Bennetts lived

in Florida from 2012, through 2016, when they returned to Ohio. Scott Bennett explained

they returned to Ohio for Adam Doe after Adam Doe contacted Tony Bennett and told

him, “Uncle, I need your help.” Tr. Vol. III, 578. Adam Doe lived with the Bennetts from

the time he was 14 years old until he was 18 years old. Scott Bennett indicated John

Doe, his younger sister, and his mother lived with the Bennetts for a period of time. John

Doe and his younger sister lived with the Bennetts again between late December, 2019,

and May, 2020. On separate occasions, Adam Doe and John Doe each told Scott

Bennett Appellant had done inappropriate things to them. Scott Bennett recalled

Appellant always hugging Jane Doe and observed Appellant caress Jane Doe’s chest

area when she was between 7 and 9 years old.

{¶28} Tony Bennett testified his brother had dated Fleshman for a short time prior

to her relationship with Appellant. Tony Bennett became friendly with Fleshman and her Delaware County, Case No. 21 CAA 20 0010 13

children and, as a result, the children knew him as “Uncle.” When Adam Doe was 5 or 6

years old, he told Tony Bennett Appellant had done sexually inappropriate things to him.

Tony Bennett made Fleshman aware of the disclosure. Over the years, Adam Doe made

additional disclosures to Tony Bennett. In 2020, John Doe told Tony Bennett Appellant

had done sexually inappropriate things to him.

{¶29} Detective Sergeant Michael Bolen of the Delaware Police Department

testified he was assigned to the case involving Jane Doe on September 5, 2017. After

being briefed by the detective on-call on September 3, 2017, Sergeant Bolen made a

referral to Delaware County Job and Family Services. Sergeant Bolen observed the

forensic interview of Jane Doe conducted by Cathy Davis at CAC on September 13, 2017.

Based upon Jane Doe’s interview, Sergeant Bolen spoke with Reisinger and Scheiderer.

Sergeant Bolen noted Fleshman seemed less interested in pursuing the matter as time

passed. Due to department restructuring in October, 2017, he and only one other

detective were handling the entire caseload. Because Appellant was out of the home,

the matter became a lower investigative priority. Sergeant Bolen was unable to locate

Appellant and eventually reassigned the case to Detective Sean Franks in April, 2019.

{¶30} Shelly Pounds testified she lived next door to Fleshman and her family at

Londontown Apartments. Pounds and Fleshman went to school together, but started to

spend time together and become closer after Pounds moved into Londontown

Apartments in 2015, or 2016. Prior to the September 3, 2017 incident, Jane Doe told

Pounds about the inappropriate things Appellant had done to her. Pounds informed

Fleshman of Jane Doe’s disclosure. Delaware County, Case No. 21 CAA 20 0010 14

{¶31} Detective Sean Franks of the Delaware Police Department testified

Sergeant Bolen assigned the case to him in April, 2019. Shortly after being assigned the

case, Detective Franks made contact with Jane Doe and Fleshman. Appellant’s

whereabouts were unknown at that time. Detective Franks obtained a warrant for

Appellant’s arrest in May 2019. Appellant was arrest in August, 2019. At the time of his

arrest, Appellant was living with Fleshman, John Doe, and M.M. at the Hidden Lakes

Campground in Mount Gilead, Ohio. Detective Franks continued to investigate, speaking

with Adam Doe, John Doe, Londontown Apartment neighbors, and members of

Appellant’s family. Detective Franks also reviewed records from Job and Family Services

in Delaware, Marion, and Union counties.

{¶32} After hearing all the evidence and deliberating, the jury found Appellant

guilty of six counts of rape involving Jane Doe, two counts of gross sexual imposition

involving Jane Doe, four counts of rape involving John Doe, and one count of gross sexual

imposition involving John Doe. The jury found Appellant not guilty of the one count of

gross sexual imposition involving Adam Doe. The trial court held a sentencing hearing

on January 25, 2021. The trial court sentenced Appellant to an aggregate term of

imprisonment of 25 years to life.

{¶33} It is from his convictions and sentence Appellant appeals, raising the

following assignments of error:

I. THE TRIAL COURT ERRED WHEN IT ALLOWED WITNESSES

TO TESTIFY ABOUT THE VICTIMS’ PRIOR CONSISTENT

STATEMENTS WHEN THAT TESTIMONY WAS NOT CHALLENGED AS Delaware County, Case No. 21 CAA 20 0010 15

A RECENT FABRICATION AND THE WITNESSES WERE NOT CALLED

FOR REBUTTAL. SIXTH AND FOURTEENTH AMENDMENTS, UNITED

STATES CONSTITUTION; ARTICLE I, SECTION 10A, OHIO

CONSTITUTION; EVID. R. 801(D)(1)(B).

II. WILLIAM MEEKS WAS DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL. STRICKLAND V. WASHINGTON, 466 U.S. 668, 104 S.CT.

2052, 80 L.ED.2D 674 (1984). SIXTH AND FOURTEENTH

AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I,

SECTION 10 AND 16, OHIO CONSTITUTION.

I

{¶34} In his first assignment of error, Appellant asserts the trial court erred in

allowing certain witnesses to testify about the victims’ prior consistent statements as

Appellant did not imply the victims were untruthful or fabricated their stories, and the

witnesses were not called for rebuttal.

{¶35} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). Evid.R. 402 states that all relevant evidence is admissible. “Relevant

evidence is defined as evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Delaware County, Case No. 21 CAA 20 0010 16

{¶36} Specifically, Appellant contends the state’s sole purpose in having Tamara

Scheiderer, Julie Reisinger, Tony Bennett, Scott Bennett, and Shelly Pounds testify was

to bolster and vouch for the victims’ credibility. We disagree.

{¶37} Pursuant to Evid.R. 801(D)(1)(b), an out-of-court statement is not

considered hearsay if “[t]he declarant testifies at trial * * * and is subject to cross-

examination concerning the statement, and the statement is * * * consistent with

declarant's testimony and is offered to rebut an express or implied charge against

declarant of recent fabrication or improper influence or motive.” State v. Brown, 12th Dist.

Butler No. CA2011-11-207, 2013-Ohio-1610, 2013 WL 1709608, ¶ 16. Thus, the rule

“permits the rehabilitation of a witness whose credibility has been attacked by an express

or implied charge that [the witness] recently fabricated [his or her] story or falsified [his or

her] testimony in response to improper motivation or undue influence.” Id.; State v. Smith,

12th Dist. Butler No. CA2009-02-038, 2010-Ohio-1721, 2010 WL 1534121, ¶ 102.

{¶38} In order for the rule to apply, “the declarant must be subject to cross-

examination and the statement must be offered to rebut an accusation that the declarant

lied or was improperly influenced in [his or her] testimony.” State v. Williams, 12th Dist.

Butler No. CA2007-04-087, 2008-Ohio-3729, 2008 WL 2875008, ¶ 12. As a result, to be

admissible, the prior consistent statement must have been made before the existence of

any motive or influence to falsify testimony. State v. English, 12th Dist. Butler No.

CA2013-03-048, 2014-Ohio-441, 2014 WL 539893, ¶ 36. “In determining whether to

admit a prior consistent statement for rebuttal purposes, a trial court should take a

generous view of the entire trial setting to determine if there was sufficient impeachment

of the witness to amount to a charge of fabrication or improper influence or motivation.” Delaware County, Case No. 21 CAA 20 0010 17

Smith at ¶ 103, citing State v. Grays, 12th Dist. Madison No. CA2001–02–007, 2001 WL

1302551, *2 (Oct. 29, 2001).

{¶39} In Motorists Mut. Ins. Co. v. Vance, 21 Ohio App.3d 205, 486 N.E.2d 1206

(1985), the Tenth District Court of Appeals explained:

What the rule permits is the rehabilitation of a witness whose

credibility has been attacked by means of a charge that he recently

fabricated his story or falsified his testimony in response to improper

motivation or influence, by admitting into evidence a consistent statement

made by the witness prior to the time of the suggested invention or of the

emergence of the motive or influence to invent or falsify, as tending to rebut

the charge.

***

Because the result of exclusion of prior consistent statements, where

they are sought to be used for rebuttal purposes, would be to permit an

implication of fabrication or falsification to stand without challenge, their

admission should be favored to the extent that a generous view should be

taken of the entire trial setting in order to determine if there was sufficient

impeachment of the witness to amount to a charge of fabrication or improper

influence or motivation. Id. at 207

{¶40} While defense counsel carefully crafted her Opening Statement as well as

her cross-examinations of the victims to avoid directly accusing the victims of lying, Delaware County, Case No. 21 CAA 20 0010 18

defense counsel’s strategy was to suggest the motive each of the victims had for

fabricating allegations of sexual abuse by Appellant, thus implying the victims were lying.

{¶41} During the cross-examination of Jane Doe, defense counsel showed Jane

Doe a photograph of herself with her mother and Appellant taken before a school dance.

Jane Doe agreed she looked “very happy” in the photograph. Defense counsel’s line of

questioning implied Jane Doe had to be lying about the sexual abuse, suggesting it would

be counterintuitive for her to be happy if Appellant was abusing her. Defense counsel

also questioned Jane Doe about the argument she and Appellant had the evening of

September 3, 2017, before police were called to the residence. Jane Doe could not recall

the substance of the argument or whether it was “a really bad argument” or “a silly

argument.” Tr. Vol. II, 312-318. The questioning insinuated Jane Doe fabricated the

abuse out of spite following this argument.

{¶42} Under the circumstances of this case, we find the cross-examination of Jane

Doe amounted to an “implied charge” within the contemplation of the rule, as it constituted

an attack upon Jane Doe’s credibility by suggesting she had fabricated the allegations

and had motive to do so. Accordingly, we find the trial court did not abuse its discretion

in allowing the testimony of Scheiderer, Reisinger, and Pounds to rebut Appellant’s

implied charge against Jane Doe of recent fabrication or motive.

{¶43} We now turn to Appellant’s argument as it relates to the trial court’s

admission of the testimony of Tony Bennett and Scott Bennett. During the cross-

examination of John Doe, defense counsel showed John Doe photographs of himself and

Appellant going fishing. John Doe acknowledged “[t]here were some good times.” Tr.

Vol. III, 541. This line of questioning implied John Doe was lying about the sexual abuse Delaware County, Case No. 21 CAA 20 0010 19

as it would be counterintuitive for him to be happy to be fishing with Appellant if Appellant

abused him. Defense counsel questioned John Doe about Tony Bennett and Scott

Bennett pursuing legal custody of John Doe and M.M., and pushed John Doe about his

desire to live with Tony Bennett and Scott Bennett. John Doe indicated he had his own

room at the Bennett house and he had fun being there. John Doe also admitted the rules

at the Bennett house were more lenient. He added he never went hungry when he was

with the Bennetts. This line of questioning suggested John Doe was improperly

influenced or motivated him to lie in order to live with Tony Bennett and Scott Bennett.

{¶44} Again, we find, under the circumstances of this case, the cross-examination

of John Doe amounted to an “implied charge” within the contemplation of the rule, as it

constituted an attack upon John Doe’s credibility by suggesting he was improperly

influenced or motivated to fabricate the allegations of abuse by Tony Bennett and Scott

Bennett, whom defense counsel attempted to establish wanted legal custody solely for

the welfare benefits. Accordingly, we find the trial court did not abuse its discretion in

allowing the testimony of Tony Bennett and Scott Bennett to rebut Appellant’s implied

charge against John Doe.

{¶45} With respect to the trial court’s admitting the testimony of Tony Bennett and

Scott Bennett regarding disclosures Adam Doe made to each of them, we find any error

in the admission of the testimony to be harmless as Appellant was acquitted of the one

count of gross sexual imposition involving Adam Doe.

{¶46} Additionally, we find any error in the admission of the testimony of

Scheiderer, Reisinger, Tony Bennett, Scott Bennett, and Pounds to be harmless. “The

erroneous admission of hearsay evidence is harmless if additional information, separate Delaware County, Case No. 21 CAA 20 0010 20

and apart from the erroneously admitted evidence, has been offered to prove that which

the challenged evidence was offered to prove.” State v. Patterson, 5th Dist. No. 02-COA-

041, 2003-Ohio-4673, at ¶ 4 (Citation omitted). Because Jane Doe, Adam Doe, and

John Doe each testified as to what Appellant did to her/him, whom they individually told,

and what she/he did or did not do in the aftermath, and defense counsel cross-examined

them, the testimony of Scheiderer, Reisinger, Tony Bennett, Scott Bennett, and Pounds

was cumulative. The testimony of Jane Doe and John Doe was sufficient to support

Appellant’s convictions. We find Appellant has failed to demonstrate he was prejudiced

by the admission of the victims' prior statements and the trial court did not abuse its

discretion in admitting the testimony.

{¶47} Appellant’s first assignment of error is overruled.

II

{¶48} In his second assignment of error, Appellant raises a claim of ineffective

assistance of counsel. Appellant asserts trial counsel was ineffective for 1) failing to file

a motion to dismiss based upon pre-trial delay, 2) failing to request separate trials for

each victim, and 3) failing to file a dismiss based upon a violation of Appellant’s speedy

trial rights.

Standard of Review

{¶49} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and, but for counsel's error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, Delaware County, Case No. 21 CAA 20 0010 21

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show counsel's conduct so undermined the

proper functioning of the adversarial process the proceedings cannot be relied upon as

having produced a just result. Id. In determining whether counsel's representation fell

below an objective standard of reasonableness, judicial scrutiny of counsel's performance

must be highly deferential. Bradley at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any given

case, a strong presumption exists counsel's conduct fell within the wide range of

reasonable professional assistance. Id.

{¶50} In order to warrant a reversal, Appellant must additionally show he was

prejudiced by counsel's ineffectiveness. “Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial

counsel.” State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, citing Lockhart

v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180. The United States

Supreme Court and the Ohio Supreme Court have held a reviewing court “need not

determine whether counsel's performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.” Bradley at 143, 538

N.E.2d 373, quoting Strickland at 697.

Pre-indictment Delay

{¶51} In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, the

Ohio Supreme Court held “when unjustifiable preindictment delay causes actual prejudice

to a defendant's right to a fair trial despite the state's initiating of prosecution within the Delaware County, Case No. 21 CAA 20 0010 22

statutorily defined limitations period, the Due Process Clause affords the defendant

additional protection.” Id. at ¶ 11. Preindictment delay between the commission of the

offense and a defendant's indictment violates due process only when: (1) it is unjustifiable

and (2) causes actual prejudice. Id. at ¶ 12, citing State v. Luck, 15 Ohio St.3d 150, 472

N.E.2d 1097 (1984), paragraph two of the syllabus. There is a “firmly established burden-

shifting framework for analyzing a due-process claim based on preindictment delay. Once

a defendant presents evidence of actual prejudice, the burden shifts to the state to

produce evidence of a justifiable reason for the delay.” Id. at ¶ 13. In other words,

“unjustifiable delay does not violate due process unless it results in actual prejudice.” Id.

at ¶ 16.

{¶52} “[P]roof of actual prejudice, alone, will not automatically validate a due

process claim” as “the prejudice suffered by the defendant must be viewed in light of the

state's reason for the delay.” Luck, supra at 154 (Citation omitted). Thus, once a

defendant establishes “actual prejudice”, the burden then shifts to the state to produce

evidence of a justifiable reason for the delay. Id. Thereafter, the due process inquiry

involves a balancing test by the court, weighing the reasons for the delay against the

prejudice to the defendant, in light of the length of the delay. State v. Walls, 96 Ohio St.3d

437, 2002–Ohio–5059, 775 N.E.2d 829, ¶ 51.

{¶53} The defendant may not rely on speculation or vague assertions of prejudice.

Proof of actual prejudice must be specific, particularized, and non-speculative. Therefore,

in order to establish actual prejudice, the defendant must demonstrate the exculpatory

value of the evidence of which he was deprived due to the delay. State v. Thomas, 8th

Dist. Cuyahoga No. 101202, 2015–Ohio–415, ¶ 11. The defendant must show “how lost Delaware County, Case No. 21 CAA 20 0010 23

witnesses and physical evidence would have proven the defendant's asserted defense.”

State v. Smith, 8th Dist. Cuyahoga No. 100501, 2014–Ohio–3034, ¶ 26, citing State v.

Davis, 7th Dist. Mahoning No. 05 MA 235, 2007–Ohio–7216, ¶ 17. “Without proof of

prejudice, meaning something which adversely affects [a defendant's] ability to defend

himself at trial, there is no due process violation for preindictment delay in prosecution.”

Id.

{¶54} In his Brief to this Court, Appellant makes the blanket assertion he was

prejudiced by the delay. Appellant references times during the trial when witnesses were

unable to recall specific memories or individuals with whom they had spoken. Much of

Appellant’s argument focuses on Jane Doe and her inability to recall her specific age or

grade level at the time of the events she described. Appellant notes Jane Doe was unable

to recall the substance of the argument between herself and Appellant on September 3,

2017, which resulted in the police responding to their home. Appellant adds Adam Doe

and John Doe had similar “gaps in memory” regarding where and when they were living

with different people and to whom they spoke. Appellant concludes, “All of this might

have been mitigated if the State had prosecuted Mr. Meeks in a timely manner.” Brief of

Appellant at 9.

{¶55} We find Appellant’s claim of actual prejudice is speculative. Appellant has

failed to demonstrate he was deprived of any evidence or the exculpatory value of that

evidence due to the delay. Appellant has not shown how the inability of certain witnesses

to recall exact dates, names, and places deprived him of an ability to assert a defense.

In fact, during the cross-examination of Jane Doe, Adam Doe, and John Doe, defense

counsel used the witnesses’ inability to recall specifics to attack their credibility. Further, Delaware County, Case No. 21 CAA 20 0010 24

we have reviewed the entire trial transcript and do not find any of the witnesses’ gaps in

memory to be so pervasive as to call into question the jury’s verdict.

{¶56} Because Appellant failed to establish actual prejudice, this Court is not

required to consider the reasons for the delay. State v. Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, 45 N.E.3d 127, ¶ 107.

{¶57} Appellant has failed to demonstrate there was a reasonable probability a

motion to dismiss based upon the pre-indictment delay would have been granted had it

been timely filed; therefore, he is unable to establish a claim for ineffective assistance of

counsel.

Separate Trials

{¶58} Joinder of offenses is governed by Crim. R. 8(A), which states offenses may

be joined if they are of the same or similar character, are based on the same act or

transaction, or are based on two or more acts or transactions connected together or part

of a common scheme or course of criminal conduct. Joinder is liberally permitted to

conserve judicial resources, reduce the chance of incongruous results in successive

trials, and diminish inconvenience to witnesses. See, State v. Torres, 66 Ohio St.2d 340,

343, 421 N.E.2d 1288 (1981). Joinder is appropriate where the evidence is interlocking

and the jury is capable of segregating the proof required for each offense. State v. Czajka,

101 Ohio App.3d 564, 577–578, 656 N.E.2d 9 (1995).

{¶59} “When a defendant claims that he was prejudiced by the joinder of multiple

offenses, a court must determine (1) whether evidence of the other crimes would be

admissible even if the counts were severed, and (2) if not, whether the evidence of each

crime is simple and distinct.” State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 Delaware County, Case No. 21 CAA 20 0010 25

(1992), citing State v. Hamblin (1988), 37 Ohio St.3d 153, 158–159, 524 N.E.2d 476,

481–482; Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964). “If the evidence of other

crimes would be admissible at separate trials, any ‘prejudice that might result from the

jury's hearing the evidence of the other crime in a joint trial would be no different from that

possible in separate trials,’ and a court need not inquire further.” Id., citing Drew v. United

States, 331 F.2d at 90.

{¶60} We need not address whether the evidence of the offenses against one

victim would be admissible at Appellant’s trials on the offenses involving the other victims,

and vice versa, as the evidence of each offense was simple and distinct. “Evidence is

‘simple and direct’ if the jury is capable of readily separating the proof required for each

offense, if the evidence is unlikely to confuse jurors, if the evidence is straightforward,

and if there is little danger that the jury would ‘improperly consider testimony on one

offense as corroborative of the other.’ ” State v. Freeland, 4th Dist. Ross No.

12CA003352, 2015-Ohio-3410, ¶ 14, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-

Ohio-6391, 819 N.E.2d 215, ¶ 34. Therefore, “a defendant does not suffer prejudice from

joinder of offenses when the offenses charged in an indictment are ‘simple and distinct,’

when ‘[t]he factual situation of each crime was easy to understand and was capable of

segregation,[’] and when ‘[t]he crimes involved different victims, different factual

situations, and different witnesses.’ ” Freeland at ¶ 14, quoting State v. Clifford, 135 Ohio

App.3d 207, 212, 733 N.E.2d 621 (1st Dist. 1999).

{¶61} Each victim testified separately and the state introduced evidence of each

distinct crime. The jury clearly was able to separate the evidence relative to each victim

as the jury found Appellant guilty of the counts involving Jane Doe and John Doe, but Delaware County, Case No. 21 CAA 20 0010 26

acquitted him on the single count involving Adam Doe. Based upon this verdict, it is clear

the jury did not confuse the evidence relating to the separate charges.

{¶62} Because joinder was proper in this matter, Appellant cannot establish he

was prejudiced by the trial counsel’s failure to move for separate trials. We find Appellant

has failed in his burden to demonstrate a reasonable probability that, but for counsel's

failure to request separate trials, the result of the proceeding would have been different.

Speedy Trial

{¶63} R.C. 2945.71(C)(2) requires “[a] person against whom a charge of felony is

pending * * * be brought to trial within two hundred seventy days after his arrest.” R.C.

2945.71(E) provides “each day during which the accused is held in jail in lieu of bail on

the pending charge shall be counted as three days.” “The statutory speedy trial period

begins to run on the date the defendant has been arrested; however, the date of arrest is

not counted when calculating speedy trial time.” State v. Geraci, 8th Dist. Cuyahoga Nos.

101946 and 101947, 2015-Ohio-2699, 2015 WL 4043007, ¶ 21.

{¶64} Appellant was arrested on August 16, 20191, and was held in the Delaware

County Jail until his trial on January 12, 2021. At first blush, it appears Appellant was not

brought to trial within the time limits set forth in R.C. 2945.71(C).

{¶65} A defendant establishes a prima facie case for discharge once he

demonstrates he has not been brought for trial within the time limits set forth in R.C.

2945.71. State v. Ashbrook, 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL

2582869, ¶ 49, citing State v. Butcher, 27 Ohio St.3d 28, 30–31, 500 N.E.2d 1368 (1986).

1The state uses August 9, 2019, as the date of Appellant’s arrest. In his Brief, Appellant states he was arrested on August 16, 2019. Brief of Appellant at 11. The docket indicates Appellant was arrested on August 16, 2019. Accordingly, we shall use August 16, 2019, as the date of Appellant’s arrest. Delaware County, Case No. 21 CAA 20 0010 27

When a defendant has established he was tried outside speedy-trial time limits, the

burden shifts to the state to show the time limit was extended under R.C. 2945.72. Id. at

¶ 31. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then discharge

pursuant to R.C. 2945.73(B) is required. Id.

{¶66} “When reviewing a speedy-trial issue, an appellate court must calculate the

number of days chargeable to either party and determine whether the appellant was

properly brought to trial within the time limits set forth in R.C. 2945.71.” State v. Riley, 162

Ohio App.3d 730, 2005-Ohio-4337, 834 N.E.2d 887, ¶ 19.

{¶67} R.C. 2945.72, which sets forth the provisions tolling the speedy trial

parameters, provides, in pertinent part:

The time within which an accused must be brought to trial, or, in the

case of felony, to preliminary hearing and trial, may be extended only by the

following:

(A) Any period during which the accused is unavailable for hearing

or trial, by reason of other criminal proceedings against him, within or

outside the state, by reason of his confinement in another state, or by

reason of the pendency of extradition proceedings, provided that the

prosecution exercises reasonable diligence to secure his availability;

(B) Any period during which the accused is mentally incompetent to

stand trial or during which his mental competence to stand trial is being

determined, or any period during which the accused is physically incapable

of standing trial; Delaware County, Case No. 21 CAA 20 0010 28

(E) Any period of delay necessitated by reason of a plea in bar or

abatement, motion, proceeding, or action made or instituted by the accused;

(G) Any period during which trial is stayed pursuant to an express

statutory requirement, or pursuant to an order of another court competent

to issue such order;

(H) The period of any continuance granted on the accused's own

motion, and the period of any reasonable continuance granted other than

upon the accused's own motion * * *

{¶68} We calculate Appellant’s time as follows:

{¶69} Between August 17, 2019, and September 29, 2019, the day on which

Appellant filed his motion to suppress, 132 days (44 days times 3) are charged to the

state. Time was tolled pursuant to R.C. 2945.72(E) between the filing of the motion to

suppress and November 6, 2019, the day on which Appellant filed his motion for a

competency evaluation. Time remained tolled pursuant to R.C. 2945.72(B) between the

filing of the motion for competency evaluation and February 7, 2020, the day on which

the trial court scheduled a competency hearing and a hearing on motion to suppress.

{¶70} The trial court sua sponte continued the February 7, 2020 hearing, until

March 16, 2020, due to the trial of another criminal case. R.C. 2945.72(H) “contemplates

continuances resulting from the court's docket pressures.” State v. Tillman, 2d Dist. Clark

No. 06CA0118, 2008-Ohio-2060, ¶ 17, citing State v. Lee, 48 Ohio St.2d 208, 357 N.E.2d Delaware County, Case No. 21 CAA 20 0010 29

1095 (1976). We find the length of the trial court's continuances to be reasonable.

Accordingly, Appellant’s speedy trial time remained tolled. Upon its own motion, the trial

court again continued the competency hearing and suppression hearing from March 16,

2020, to April 29, 2020, in order for the hearing to be conduct via videoconference. We

find the speedy trial time continued to be tolled pursuant to R.C. 2945.72(H). The trial

court’s judgment entry reflects the continuance was reasonable in both purpose and

length. State v. Martin, 56 Ohio St.2d 289, 293, 384 N.E.2d 239 (1978).

{¶71} On April 28, 2020, the state and Appellant filed a joint motion for

continuance of the April 29, 2020 hearing, due to broadcasting issues over Zoom with the

recorded interviews between Appellant and Detective Sean Franks, which were the focus

of the suppression hearing. The parties agreed, “Speedy trial remains tolled due to

Defendant’s pending motions [sic] for competency evaluation and motions [sic] to

suppress. April 28, 2020 Motion to Continue Hearing on Motion to Suppress and Hearing

on Motion for Competency Evaluation to May 13, 2020 at 2, unpaginated. The joint

motion for continuance continued to toll Appellant’s speedy trial time. See, State v. Pyles,

7th Dist. Mahoning No. 13 MA 22, 2015-Ohio-5594 (Citation omitted).

{¶72} Via Judgment Entry filed May 14, 2020, the trial court found Appellant

competent to stand trial. Time remained tolled as the trial court had not yet ruled on

Appellant’s motion to suppress. Following the May 13, 2020 hearing, the trial court

provided the parties with the opportunity to file memoranda contra or in support of the

motion to suppress. The state filed its post hearing response on May 14, 2020. Appellant

filed his brief in support of his motion to suppress on May 21, 2020. On July 9, 2020, the Delaware County, Case No. 21 CAA 20 0010 30

trial court filed its 38-page judgment entry granting, in part, Appellant’s motion to

suppress.

{¶73} The Ohio Supreme Court has held a trial court does not have “unbridled

discretion concerning the amount of time it takes to rule on a defense motion. * * * A strict

adherence to the spirit of the speedy trial statutes requires a trial judge, in the sound

exercise of his judicial discretion, to rule on these motions in as expeditious a manner as

possible.” State v. Martin (1978), 56 Ohio St.2d 289, 297, 384 N.E.2d 239. Stated

otherwise, “the extension of time to rule on a defendant's motion to suppress is subject to

a requirement of reasonableness.” State v. Arrizola (1992), 79 Ohio App.3d 72, 76, 606

N.E.2d 1020 (1992). A balancing test is necessary in which a court should weigh:

“[the][l]ength of delay, the reason for the delay, the defendant's assertion of his right, and

prejudice to the defendant.” State v. Santini, 144 Ohio App.3d 396, 404, 760 N.E.2d 442

(2001), quoting Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182. A court should

also specifically consider the nature of the motion filed and the timing of said motion in

assessing whether a delay is reasonable. Id. We find the delay necessitated by the trial

court’s ruling on Appellant’s motion to suppress was reasonable given the nature of the

motion and the potential consequences.

{¶74} Time began to run again on July 9, 2020, and ran until July 13, 2020, when

Appellant filed a motion to continue. Thus, 15 days (5 days times 3) are charged to the

state. The state dismissed the indictment in case no. 19 CR I 08 0580 on August 14,

2020. The speedy trial clock restarted upon the filing and service of the superseding

indictment in case no. 20 CR I 08 0516 on August 13, 2020. Delaware County, Case No. 21 CAA 20 0010 31

{¶75} In State v. Baker, 78 Ohio St. 3d 108, 1997-Ohio-229, the Ohio Supreme

Court held:

[I]n issuing a subsequent indictment, the state is not subject to the

speedy-trial timetable of the initial indictment, when additional criminal

charges arise from facts different from the original charges, or the state did

not know of these facts at the time of the initial indictment. Id. at syllabus.

{¶76} The subsequent indictment in case no. 20 CR I 08 0516 included

“additional criminal charges [arising] from facts different from the original charges” and

“the state did not know of these facts at the time of the initial indictment.” Id. The

indictment in case no. 20 CR I 08 0516 contains new charges and concerned two

additional victims. Investigators did not learn of the abuse Appellant perpetrated upon

Adam Doe and John Doe until mid-summer 2020. Because the additional criminal

charges arise from facts distinct from those supporting the initial indictment and the state

was unaware of such facts at that time of the filing of the initial indictment, we find the

state was not required to bring Appellant to trial within the same statutory period as the

initial indictment under R.C. 2945.71.

{¶77} We find Appellant was brought to trial on the superseding indictment within

the statutory speedy trial requirements. Appellant filed motions to continue on September

1, 2020, and October 26, 2020. Appellant’s October 26, 2020 motion to continue was

necessitated by Appellant’s motions to determine the competency of the victims.

Pursuant to R.C. 2945.72(E) and (H), time was tolled during the period between the filing Delaware County, Case No. 21 CAA 20 0010 32

of the September 1, 2020 motion to continue and the rescheduled trial date of November

3, 2020, the period between Appellant’s filing motions to determine the victims’

competency on October 23, 2020, and the trial court’s judgment entry ruling on the same,

and the period between Appellant’s October 26, 2020 motion to continue and the

rescheduled trial date of January 4, 2021.

{¶78} Because we find Appellant was not denied his right to a speedy trial, we

find his trial counsel was not ineffective for failing to file a motion to dismiss on speedy

trial grounds.

{¶79} Based upon the foregoing, Appellant’s second assignment of error is

overruled.

{¶80} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, P.J. Wise, John, J. and Delaney, J. concur