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State v. Hickinbotham

Court of Appeals of Ohio, Fifth District, Stark

July 16, 2019

STATE OF OHIO Plaintiff-Appellant
v.
ROBERT HICKINBOTHAM Defendant-Appellee

          Appeal from the Stark County Court of Common Pleas, Case No. 2000 CR 0737

          For Plaintiff-Appellant: JOHN D. FERRERO, JR. STARK CO. PROSECUTOR RONALD MARK CALDWELL

          For Defendant-Appellee: STEVEN A. REISCH Stark Co. Public Defender's Office

          JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.

          OPINION

          DELANEY, J.

         {¶1} Appellant state of Ohio appeals from the September 10 and September 19, 2018 judgment entries of the Stark County Court of Common Pleas granting the motion to dismiss of appellee Robert Hickinbotham.

         FACTS AND PROCEDURAL HISTORY

         {¶2} The facts of the courses of criminal conduct underlying the charged offenses are not before us in the record.

         {¶3} On June 27, 2000, a secret indictment was issued in Stark County, Ohio, charging appellee with five counts of gross sexual imposition (G.S.I.) pursuant to R.C. 2907.05(A)(4), all felonies of the third degree. The victims of the offenses were under the age of 13. The offenses were charged as follows:

Count

Offense

R.C. Sec.

Penalty Level

Victim

Dates of Continuing Course of Conduct

I.

G.S.I.

2907.05(A)(4)

F3

Jane Doe

Aug. 15, 1998-Jun. 5, 1999

II.

G.S.I.

2907.05(A)(4)

F3

Mary Roe

Apr. 24, 1991-Aug. 31, 1993

III.

G.S.I.

2907.05(A)(4)

F3

Mary Roe

May 17, 1996-May 17, 1997

IV.

G.S.I.

2907.05(A)(4)

F3

Susan Roe

Apr. 24, 1991-Aug. 31, 1993

V.

G.S.I.

2907.05(A)(4)

F3

Susan Roe

Apr. 24, 1995-Apr. 24, 19961

         {¶4} A warrant on the indictment was issued on June 29, 2000.

         {¶5} The warrant was returned on July 2, 2018.

         {¶6} Appellee appeared before the trial court and entered pleas of not guilty on July 6, 2018.

         {¶7} On July 9, 2018, appellee filed a motion to dismiss, arguing speedy-trial time lapsed due to an unreasonable delay in commencing prosecution. Appellee cited R.C. 2901.13(A)(3), noting the offenses in Counts II through V ended prior to 1998, but the complaint was not served upon him until July 2, 2018, and no efforts were made to serve the warrant prior to July 2, 2018.[2]

         {¶8} Appellant filed a written response in opposition, arguing the "statute of limitations clock" did not begin to run until the child victims disclosed the abuse to the Stark County Department of Jobs and Family Services ("Agency") in April of 1999; therefore the instant prosecution was commenced within 20 years. Appellant asserted the abuse of Mary and Susan Roe [Counts II through V] was disclosed on April 23, 1999, and the abuse of Jane Doe was disclosed on September 22, 1999. Therefore, the statute of limitations does not expire until April 2019 and September 2019, respectively.

         {¶9} Appellant further argued the statute of limitations had not begun to run because appellant purposely sought to avoid prosecution pursuant to R.C. 2901.13(H):[3]

In this case, [appellee] was interviewed at his house by the Carroll County Sheriff's office on June 11, 1999. At that time, [appellee] was made aware of the accusations against him by [Mary and Susan Roe]. At that time, no further action was taken. On December 20, 1999, however, Carroll County Sheriff's office again performed a courtesy interview of [appellee] along with a Stark County case worker, in which he admitted to his contact with the third victim, [Jane Doe]. The indictment against [appellee] was filed on June 27, 2000, and when an attempt was made to have him served at his residence in Carroll County, it was discovered [appellee] no longer lived there. In March 2001, it was later discovered that [appellee] had left Ohio and was living in Florida.
Therefore, [appellee's] departure from Ohio to the State of Florida, in the months after his confession to Carroll County Sheriff [sic] and prior to indictment is prima facie evidence of his intention to avoid prosecution, which additionally toll[s] the statute of limitations in this case. * * * *.
Response to Motion to Dismiss, July 27, 2018.

         {¶10} Appellee filed a "Motion to Dismiss Supplemental" in reply on August 16, 2018, asserting, e.g., that the record was devoid of evidence that he deliberately fled to avoid prosecution.

         {¶11} The trial court scheduled the matter for an evidentiary hearing on September 7, 2018. Appellant called two witnesses at the hearing: Denise Smith, the Program Administrator of the Agency, and C.J. Stantz, the Operations Commander of the Stark County Sheriff's Office ["SCSO"].

         {¶12} Smith testified she is responsible for, e.g., maintaining the records of the Agency. Upon her direct examination by appellant, she was (apparently) shown two intake reports. [4] T. 7. The first was dated April 23, 1999; the "children of concern" in the report were Mary and Susan Roe, ages 14 and 16 at the time of the report; the alleged perpetrator was appellee; and the "nature of the concern" was "sexual abuse." T. 8-10. The second report, dated September 22, 1999, documented a call or office visit regarding child abuse and neglect; the subject of the report was Jane Doe, age 9 at the time of the report; and "the subject or alleged perpetrator of that report" was appellee.[5] T. 10-11. The case worker assigned to the first case was someone with the last name Valentine and the case worker assigned to the second case was Marty Pireu. T. 11.

         {¶13} Stantz testified that as Operations Commander, he has a supervisory role over most of the daily functions of the SCSO, including the processing and execution of arrest warrants. There are five possible "pickup radiuses" assigned to warrants: 1 is nationwide, 2 is within the state of Ohio, 3 is "within a 100-miles radius," 4 is adjacent to Stark County, and 5 is Stark County-only. The pickup radius assigned to a warrant depends upon the type of charge or type of warrant, and follows a schedule. T. 15. The pickup radius might be adjusted "depending on whether we know where the individual is at or there is some type of request from the prosecutors or the courts to change that pickup radius * * *." T. 15. Only the command staff has authority to change the pickup radius. Stantz offered the example of a warrant with a radius of 5, meaning Stark County-only: if the SCSO learned the subject identified in the warrant is in Tuscarawas County, and the SCSO verified with Tuscarawas County that the subject was there, the SCSO would ask Tuscarawas County to pick up the subject and the SCSO would go to Tuscarawas County to get them.

         {¶14} Stantz was (apparently) shown a "warrant jacket," which, he testified, did not contain the actual warrant in the instant case.[6] He testified that a warrant jacket is usually filled out when a warrant is issued; it contains the suspect's name and "information about who he is." T. 16. The warrant jacket also contains "attempts, marks anytime there is an attempt done or something done with the warrant * * *." T. 16.

         {¶15} Stantz testified that the warrant jacket in the instant case pertained to a warrant for appellee; appellee's listed address was 1274 Poinsettia, Scio, Ohio; and the jacket contained a capias upon a secret indictment for G.S.I. T. 17-18. The pickup radius on the warrant was 2, meaning throughout the state of Ohio, because "[d]ue to the address being in Ohio and the degree of the offense, it would have been an Ohio-only warrant."

         {¶16} Asked about attempts made to serve the warrant, Stantz testified as follows: * * * *.

[Stantz]: * * *. It looks like on 6/29 of 2000 it was sent to Carroll County Sheriff's Office for an attempt at that residence on Poinsettia.
[Prosecutor]: And is that typically how they handle warrants; if it's out of county, for example, that they would send it or fax it to ...

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