Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-618413-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, Oscar Albores and Daniel T. Van, Assistant
Prosecuting Attorneys, for appellant
A. Stanton, Chief Public Defender, Robert Blanshard McCaleb,
Assistant Public Defender, for appellee.
JOURNAL ENTRY AND OPINION
LASTER MAYS, P.J.
1} Plaintiff-appellant, state of Ohio appeals the
trial court's decision to grant a motion to dismiss rape
charges against defendant-appellee, Melvin Bourn
("Bourn"), for preindictment delay. We affirm the
trial court's decision.
Facts and Procedural History
2} Bourn was indicted on June 19, 2017, on an
eight-count indictment for committing two separate rapes on
January 14, 2005, and April 13, 2005. On December 9, 2017,
Bourn filed a motion to dismiss the charges due to
prejudicial preindictment delay. A hearing was held, and the
trial court dismissed the four counts of rape for the January
14, 2005 incident, but denied Bourn's motion for the
April 13, 2005 incident. Bourn then filed a motion for
reconsideration, and the trial court granted Bourn's
motion to dismiss the remaining charges. The state is now
appealing the trial court's decision to dismiss the
charges from the April 13, 2005 incident.
3} The state claims that on April 13, 2005, Bourn
raped N. J. On this day, N.J. and Bourn were having drinks at
a neighborhood bar across the street from her home. N.J.
noticed Bourn staring at her. She decided to leave the bar
for home because she was not feeling well. N. J. walked
across the street to her home, entered, and locked the door.
Later, N.J.'s friend Erika Young ("Young") came
to N.J.'s home to check on her. When Young opened the
front door, she observed Bourn engaging in anal sex with
N.J., who appeared to be unresponsive. Young waited outside
on the porch for Bourn to exit, and when he did, they engaged
in a verbal exchange.
4} Later that morning, when N.J. awoke her
"butt was hurting real bad." Young asked N.J. why
the man from the bar was in her home. Young told N.J. what
she witnessed a few hours before. N.J. called Joseph Gay
("Gay"), her boyfriend at the time, and asked him
to come to her home. Gay arrived at the home and told N.J.
that he attempted to have sex with her, but because she was
unresponsive, he stopped. N.J. then called EMS and went to
the hospital to be examined. A rape kit was performed on N.J.
5} After N.J. returned home, Young, Gay, and two
other individuals were with her in the house when a man came
to the door. Young identified the man at the door as Bourn,
the man she saw having sex with N.J. while she was
unresponsive. Gay and Bourn got into a verbal altercation,
and Bourn pulled out a gun. Gay tried to get the gun away
from Bourn, and the gun went off three times. The bullet
struck Gay in the hand, and Bourn ran away.
6} Six years later, in the spring of 2011, the
Cleveland Police Department ("CPD") started an
initiative to forward its backlogged rape kits to BCI for DNA
testing. On April 19, 2013, N.J.'s rape kit was submitted
to BCI. The DNA from NJ.'s rape kit was found to be a
match to Bourn in May 2015. Bourn was subsequently indicted
on four counts surrounding the events that occurred on April
7} Bourn claims that prior to April 13, 2005, he met
N.J. on the street and they exchanged phone numbers. On April
13, 2005, Bourn called N.J. and she invited him to a bar.
Bourn claims that he abstains from alcohol so they agreed to
meet at her home. Bourn arrived at N.J.'s home, and they
had consensual sex in NJ.'s living room. Bourn remembers
being interrupted by Young, but after she left, Bourn and
N.J. finished. Bourn left N.J.'s home, promising to call
soon. Later that morning, Bourn called N.J. a few times and