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State v. Curry

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 22, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RONALD CURRY DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597049-A

          John T. Castele ATTORNEY FOR APPELLANT

          Michael C. O'Malley, Edward R. Fadel, Daniel T. Van ATTORNEYS FOR APPELLEE

          BEFORE: S. Gallagher, P.J., Blackmon, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, P.J.

         {¶1} Ronald Curry was convicted of four counts of aggravated robbery, four counts of rape or attempted rape, two counts of kidnapping, and two three-year firearm specifications. The trial court imposed an aggregate, nine-year term of imprisonment - the firearm specifications being imposed consecutive to the other and the underlying concurrent term on all other sentences. We affirm.

         {¶2} In July 1995, Curry and an accomplice, both wearing masks to hide their identities, robbed two male and two female victims at gunpoint in the backyard of the home of one of the victims. At trial, the victims testified that several were deprived of their property, but in the original police report, the investigating police officer only noted that one of the victims had property stolen during the robbery.

         {¶3} The two female victims were forcibly removed to secluded areas on the property and were raped. Each assailant marched one of the female victims to a different area - one was taken to a bedroom inside the house and the other behind the garage. The male victims were left lying prostrate in the backyard, and they fled the scene when the assailants took the female victims. One victim, taken into the bedroom, was vaginally penetrated but refused to perform oral sex on the assailant. That assailant then met up with Curry, who had just finished raping the other female victim behind the garage. The second assailant then forced the second victim to perform oral sex on him.

         {¶4} Curry and his accomplice fled the scene. Police were immediately called, and both women were taken to the hospital where evidence was preserved. In 2013, a test was conducted in the attempt to match the DNA, but only one of the samples collected was tested - the vaginal swab from the victim who was sexually assaulted by both Curry and his accomplice behind the garage. Curry could not be excluded as the assailant. The oral swab from that same victim was not retested. Curry testified at trial and claimed that he had consensual intercourse with the victim at his birthday party days before the attack.[1] The victim testified to never having met Curry.

         {¶5} Curry was indicted, and a summons was issued on the last day of the 20-year statute of limitations.[2] Following a jury trial, Curry was found guilty of all charges. This timely appeal followed.

         {¶6} In the first assignment of error, Curry claims the state failed to return the indictment under Crim.R. 6(F) in order to timely commence the prosecution under R.C. 2901.13(F), which provides that a prosecution is commenced on the date the indictment is returned, on the date a lawful arrest without warrant is made, or on the date that a warrant, summons, citation, or other process is issued.

         {¶7} An indictment is returned under Crim.R. 6(F) if

(1) the indictment is found upon the concurrence of seven or more grand jurors; (2) the foreman or deputy foreman signs the indictment; (3) the indictment is returned to the judge of the common pleas court who is supervising the grand jury; and (4) the indictment is filed with the clerk of courts, who shall endorse thereon the date of filing and enter the case on the appearance and trial dockets.

State v. Haynes, 2015-Ohio-4582, 46 N.E.3d 1136, ¶ 13 (8th Dist), citing State ex rel Collins v. O'Farrell,61 Ohio St.3d 142, 145, 573 N.E.2d 113 (1991). Curry argues that the state failed to demonstrate that the indictment was presented to the judge of the common pleas court who was supervising the grand jury, and therefore, the indictment was not "returned" by July 1, 2015. We need not address this argument because a summons was timely issued under R.C. 2901.13(F), ...


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