Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-14-585501-A
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender BY: Jeffrey Gamso Assistant Public Defender
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Edward R. Fadel Assistant Prosecuting
BEFORE: Celebrezze, J., Keough, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR, JUDGE
Defendant-appellant, Cornelius Lynch ("Lynch"),
brings this appeal challenging his convictions for rape and
kidnapping. Specifically, Lynch argues that the trial court
erred by denying his motions to dismiss the indictment based
on preindictment delay, the state engaged in prosecutorial
misconduct, he was denied the effective assistance of
counsel, and that the charges should have been dismissed
based on double jeopardy grounds. After a thorough review of
the record and law, this court affirms.
Factual and Procedural History
The instant appeal arose from an incident that occurred
between Lynch and his girlfriend's daughter, M.H. At the
time of the incident, M.H. was 12 years old, and Lynch had
been living with his girlfriend, S.P., and M.H. for a few
years. M.H. alleged that Lynch sexually assaulted her on May
26, 1994. M.H. reported the incident to her mother the next
morning, and M.H. went to the hospital where a rape kit
examination was performed. M.H. spoke with hospital staff and
the police about the incident, and she indicated that Lynch
was her assailant. Cuyahoga County Division of Children and
Family Services ("CCDCFS") investigators also
interviewed M.H. and Lynch. Approximately two weeks later,
M.H. recanted her allegations against Lynch.
Although M.H. recanted her allegations, her rape kit was
submitted to the Ohio Bureau of Criminal Investigation
("BCI") for DNA testing in August 2012. DNA testing
established that Lynch could not be excluded as the source of
semen on the vaginal swab from the rape kit.
After learning of the DNA match, investigators reinterviewed
M.H. and S.P. M.H. informed the investigators that Lynch
assaulted her in May 1994.
On May 15, 2014, in Cuyahoga C.P. No. CR-14-585501-A, the
Cuyahoga County Grand Jury returned a three-count indictment
charging Lynch with (1) rape, a first-degree felony in
violation of R.C. 2907.02(A)(1)(b), with a furthermore
specification alleging that Lynch purposely compelled the
victim to submit by force or threat of force, (2) rape, a
first-degree felony in violation of R.C. 2907.02(A)(1)(b),
and (3) kidnapping, a first-degree felony in violation of
R.C. 2905.01(A)(4). Count 1 alleged that Lynch engaged in
vaginal intercourse with M.H., and Count 2 alleged that Lynch
engaged in cunnilingus with M.H. Lynch was arraigned on May
30, 2014. He pled not guilty to the indictment. Shortly after
Lynch was indicted, S.P. died.
Lynch's counsel filed a motion to withdraw on July 2,
2014. The trial court granted counsel's motion, and the
court assigned a new attorney to represent Lynch on July 9,
On October 31, 2014, Lynch's counsel filed motions for
independent DNA analysis and to dismiss the indictment based
on preindictment delay. Lynch's counsel filed a
supplemental motion to dismiss based on preindictment delay
on November 17, 2014. On February 12, 2015, the trial court
denied defense counsel's motion to dismiss.
On August 5, 2015, Lynch's counsel filed a motion for
reconsideration of the motion to dismiss for preindictment
delay. The trial court denied defense counsel's motion
for reconsideration on October 2, 2015.
On February 2, 2016, Lynch's counsel filed a second
supplemental motion to dismiss based on preindictment delay.
On February 12, 2016, the trial court denied defense
counsel's motion to dismiss.
A jury trial commenced on March 7, 2016. On March 10, 2016,
the trial court declared a mistrial based on an issue that
arose with one of the 12 jurors. On March 11, 2016,
Lynch's second attorney filed a motion to withdraw as
counsel. The trial court granted counsel's motion, and
the court assigned a new attorney to represent Lynch on March
On September 9, 2016, Lynch's counsel filed a motion to
reconsider the defense's previous motions to dismiss
based on preindictment delay. After holding a hearing, the
trial court denied the motion to reconsider on September 13,
A second jury trial commenced on September 15, 2016. At the
close of trial, the jury found Lynch guilty on all three
counts on September 20, 2016. The trial court referred Lynch
to the probation department for a presentence investigation
report and set the matter for sentencing.
The trial court held a sentencing hearing on October 20,
2016. The trial court merged Counts 1 and 3 for sentencing
purposes. The state elected to sentence Lynch on Count 1. The
trial court imposed a prison term of 15 years to life on
Count 1, and a prison term of 15 years to life on Count 2.
The trial court ordered the counts to run concurrently. The
trial court found Lynch to be a sexually oriented offender
and reviewed his reporting requirements.
On November 1, 2016, Lynch filed the instant appeal
challenging his convictions. He assigns four errors for
review, which we will address out of order for ease of
I. [Lynch's] rights to due process and a fair trial were
violated when the trial court denied his motion to dismiss
for pre-indictment delay and then denied his motion to
reconsider that ruling.
II. Prosecutorial misconduct encouraging the jury to convict
based on sympathy for M.H. violated [Lynch's]
constitutional rights to a fair trial and due process and to
be convicted based only on the evidence against him.
III. Counsel provided constitutionally ineffective assistance
when he failed to object to the prosecutor's improper
argument as set forth in the [s]econd [assignment of [e]rror.
IV. Because there was no manifest necessity for the trial
court to grant a mistrial, the constitutional protection
against being twice put in jeopardy for the same offense
required that the charges against [Lynch] be dismissed.
Law and Analysis
In his first assignment of error, Lynch argues that the trial
court erred by denying his motions to dismiss the indictment
based on preindictment delay.
The statute of limitations for a criminal offense is a
defendant's primary protection against overly stale
criminal charges. U.S. v. Marion, 404 U.S. 307, 322,
92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, in some
circumstances, the Due Process Clause of the Fifth Amendment
provides limited protection against preindictment delay.
U.S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52
L.Ed.2d 752 (1977). The Ohio Supreme Court has held that
"[a]n unjustifiable delay between the commission of an
offense and a defendant's indictment therefor[e], which
results in actual prejudice to the defendant, is a violation
of the right to due process of law." State v.
Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984),
paragraph two of the syllabus.
The Ohio Supreme Court recently reaffirmed a two-part,
burden-shifting test to determine whether preindictment delay
constitutes a due process violation. State v. Jones,148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 13
(" Jones I "). First, the burden is on the
defendant to present evidence of actual prejudice; once a
defendant does so, the burden then 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, 702 N.E.2d 1199 (1998). "A court
must determine whether the defendant has established actual
prejudice to his ability to defend himself before
independently determining whether the state met its burden of
establishing a ...