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State v. Clipps

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
BRIAN CLIPPS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-626183-A and CR-18-626256-A

         JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary Court Weston, Assistant Prosecuting Attorney, for appellee.

          Mark A. Stanton, Cuyahoga County Public Defender, and Noelle A. Powell, Assistant Public Defender, for appellant.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.

         {¶ 1} Defendant-appellant, Brian Clipps ("appellant"), brings the instant appeal challenging his convictions and sentence for rape, felonious assault, and aggravated robbery. Specifically, appellant argues that he was denied his constitutional right to a fair trial based on prejudicial preindictment delay, improper joinder, and prosecutorial misconduct; his convictions are against the manifest weight of the evidence; and that the trial court erred in finding him guilty on the sexually violent predator specification underlying the rape count in the 1998 indictment and imposing a 12-year prison sentence on the count. After a thorough review of the record and law, this court affirms in part, vacates in part, and remands the matter for further proceedings consistent with this opinion.

         I. Factual and Procedural History

         {¶ 2} On February 26, 2018, the Cuyahoga County Grand Jury returned two indictments against appellant.

         {¶3 } First, in Cuyahoga C.P. No. CR-18-626256-A (hereinafter "1998 case" or "1998 indictment"), appellant was charged in a five-count indictment with two counts of rape, two counts of gross sexual imposition, and kidnapping. The rape and kidnapping counts contained sexually violent predator specifications, and the kidnapping count also contained a sexual motivation specification. This indictment pertained to offenses committed on December 18, 1998, against victim C.B.

         {¶ 4} Second, in Cuyahoga C.P. No. CR-18-626183-A (hereinafter "2018 case" or "2018 indictment"), appellant was charged in a seven-count indictment with three counts of rape, felonious assault, aggravated robbery, and two counts of kidnapping. The rape counts, felonious assault count, and kidnapping offense charged in Count 6 contained sexually violent predator, notice of prior conviction, and repeat violent offender specifications. The felonious assault count and kidnapping offense charged in Count 6 also contained sexual motivation specifications. The aggravated robbery count and the kidnapping offense charged in Count 7 contained notice of prior conviction and repeat violent predator specifications. This indictment pertained to offenses committed on February 17, 2018, against victim A.M.

         {¶ 5} Appellant was arraigned in both cases on March 1, 2018. He pled not guilty to both indictments.

         {¶ 6} On April 17, 2018, appellant filed a motion to dismiss the 1998 indictment based on preindictment delay. On June 27, 2018, the trial court denied appellant's motion to dismiss.

         {¶ 7} On June 26, 2018, the state filed a motion to join the two criminal cases for trial. Appellant filed a brief in opposition to joinder on July 5, 2018. The trial court granted the state's motion to join the two cases on July 9, 2018.

         {¶ 8} Appellant waived his right to a jury trial on the sexually violent predator specifications charged in the 1998 indictment, and the sexually violent predator, notice of prior conviction, and repeat violent offender specifications charged in the 2018 indictment. These specifications were tried to the bench. The remaining counts in both indictments and the sexual motivation specifications charged in the 2018 indictment were tried to a jury.

         {¶ 9} Trial commenced in both criminal cases on July 9, 2018. At the close of the state's case-in-chief, the state dismissed the rape offense charged in Count 1 of the 1998 indictment. (Tr. 1553.) Defense counsel moved for a Crim.R. 29 judgment of acquittal, and the trial court granted defense counsel's motion on the gross sexual imposition offense charged in Count 3 of the 1998 indictment. (Tr. 1557.)

         {¶ 10} On July 19, 2018, the jury returned the following verdict regarding the 1998 indictment: the jury found appellant guilty on the rape offense charged in Count 2; and the jury found appellant not guilty on the gross sexual imposition offense charged in Count 4 and the kidnapping offense and underlying sexual motivation specification charged in Count 5. The trial court found appellant guilty of the sexually violent predator specification underlying Count 2.

         {¶ 11} The jury returned the following verdict regarding the 2018 indictment: the jury found appellant guilty on the rape offenses charged in Counts 2 and 3, the felonious assault offense charged in Count 4, the aggravated robbery offense charged in Count 5, and the kidnapping offense with the sexual motivation specification charged in Count 6. The trial court found appellant guilty of the specifications underlying Counts 2, 3, 4, 5, and 6.

         {¶ 12} The trial court held a sentencing hearing on September 6, 2018. The trial court sentenced appellant to a prison term of 12 years to life on the rape conviction from the 1998 indictment. Finally, the trial court classified appellant as a sexual predator and reviewed his reporting requirements.

         {¶ 13} The trial court determined that Counts 2, 3, and 6 in the 2018 indictment merged as allied offenses. The state elected to sentence appellant on Count 3. The trial court imposed a prison sentence of 12 years to life: 12 years to life on the rape offense charged in Count 3; four years to life on the felonious assault offense charged in Count 4; and four years on the aggravated robbery offense charged in Count 5. The trial court ordered Counts 3, 4, and 5 to run concurrently with one another.

         {¶ 14} The trial court ordered appellant's sentence of 12 years to life in the 1998 case to run consecutively to his sentence of 12 years to life in the 2018 case, for an aggregate prison sentence in both cases of 24 years to life.

         {¶ 15} On October 2, 2018, appellant filed the instant appeal challenging his convictions and the trial court's sentence. He assigns seven errors for review:

I. The Ohio Supreme Court's decision in State v. Jones, [148 Ohio St.3d 167');">148 Ohio St.3d 167, ] 2016-Ohio-5105');">2016-Ohio-5105, [69 N.E.3d 688, ] and this Court's recent decision in State v. Willingham, [8th Dist. Cuyahoga Nos. 106706 and 107033, ] 2019-Ohio-1121, makes it clear that the trial court erred when it failed to dismiss the 1998 case involving C.B. for prejudicial pre-indictment delay in violation of [appellant's] right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
II. The trial court denied [appellant] his fundamental right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution when it joined two unrelated cases and thereby caused [appellant] undue prejudice.
III. [Appellant's] conviction for a rape alleged to have occurred in 1998 is against the manifest weight of the evidence and, accordingly, [appellant] was denied his fundamental right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
IV. [Appellant's] convictions for a 2018 incident involving A.M. are against the manifest weight of the evidence and, accordingly, [appellant] was denied his fundamental right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
V. [Appellant] was denied his fundamental right to a fair trial because of prosecutorial misconduct.
VI. [Appellant] cannot be found to be a sexually violent predator as alleged in the 1998 indictment.
VII. The trial court erred in sentencing [appellant] to 12 years for one count of rape from 1998 because the longest sentence available for a first degree felony in 1998 was 10 years.

         II. Law and Analysis

         A. Preindictment Delay

         {¶ 16} In his first assignment of error, appellant argues that the trial court erred by denying his motion to dismiss the 1998 case based on prejudicial preindictment delay.

         1. Standard of Review

In reviewing a trial court's decision on a motion to dismiss for preindictment delay, this court applies a de novo standard of review to the legal issues, but we afford great deference to the findings of fact made by the trial judge. State v. Hunter, [2017-Ohio-4180');">2017-Ohio-4180, 92 N.E.3d 137, ¶ 16 (8th Dist.)].
The statute of limitations for a criminal offense is the defendant's primary protection against overly stale criminal charges. US. v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). However, the Due Process Clause of the Fifth Amendment provides additional protection in cases where the preindictment delay was unjustifiable and caused actual prejudice. U.S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Jones, 148 Ohio St.3d 167');">148 Ohio St.3d 167, 2016-Ohio-5105');">2016-Ohio-5105, 69 N.E.3d 688');">69 N.E.3d 688');">69 N.E.3d 688');">69 N.E.3d 688, [at] ¶ 12.
The Ohio Supreme Court has established a burden-shifting framework for analyzing a due-process claim based on preindictment delay. Jones at ¶ 13. Under this framework, the defendant bears the initial burden of presenting evidence of actual prejudice. Id. "Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for the delay." Jones at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99. Therefore, if the defendant fails to establish actual prejudice, the court is not required to consider the reasons for the delay. Adams at ¶ 107.
"A court must 'consider the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay.'" Id., quoting State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52. A claim of actual prejudice should be scrutinized "vis-à-vis the particular evidence that was lost or unavailable as a result of the delay" and "the relevance of the lost evidence and its purported effect on the defense." Id. at ¶ 23.

State v. Walker, 8th Dist. Cuyahoga No. 106414, 2018-Ohio-3669, ¶ 15-18.

         2. Actual Prejudice

         a. Lost Evidence

         {¶ 17} Regarding the first prong of the burden-shifting framework, appellant argues that he suffered actual prejudice as a result of the evidence that was lost between the 1998 incident and the 2018 trial. Specifically, regarding the purportedly lost evidence, appellant contends that (1) C.B.'s memory faded, and (2) the testimony of C.B.'s nephews, [1] who purportedly observed the 1998 incident, was lost.

         {¶ 18} Appellant contends that he was prejudiced by this lost evidence because C.B. "remembered next to nothing about the 1998 incident."[2] Regarding CB.'s nephews, appellant appears to argue that he was prejudiced by the delay in prosecution because the testimony of the seven-year-old nephew is "gone forever" as a result of the passage of time and the development of the nephew's brain. Appellant's brief at 8.

         {¶ 19} As an initial matter, there is no indication in the record that the defense attempted to locate, contact, or subpoena the nephews in preparing a defense. In fact, appellant acknowledges that "[t]here is no information in the record about [the 27-year-old nephew's] availability[.]" Appellant's brief at 8. Appellant has not demonstrated that the nephews were unavailable or that their testimony regarding the 1998 incident has been lost. We cannot find that the nephews were unavailable or their testimony lost merely because the defense either failed to attempt to contact them or made a deliberate, tactical decision not to call the nephews at trial.

         {¶ 20} Regarding appellant's claim of actual prejudice resulting from CB.'s faded memory,

[T]he possibility of faded memories, unavailable witnesses, and lost or destroyed evidence does not, in and of itself, constitute actual prejudice. [State v.] Richardson, [2016-Ohio-5843');">2016-Ohio-5843, 70 N.E.3d 1175, ¶ 11 (8th Dist.)]; Jones, [148 Ohio St.3d 167');">148 Ohio St.3d 167, 2016-Ohio-5105');">2016-Ohio-5105, 69 N.E.3d 688, at ¶ 21]. "Those are 'the real possibilit[ies] of prejudice inherent in any extended delay,' and statutes of limitations sufficiently protect against them." Jones at ¶ 21, quoting Marion[, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468]. Rather, the defendant must establish what the missing evidence or unavailable witnesses might have offered in assisting in his defense. Richardson at ¶ 13.

State v. Smith, 8th Dist. Cuyahoga No. 104203, 2016-Ohio-7893, ¶ 19.

         {¶ 21} Appellant's arguments pertaining to the lost evidence or faded memory of C.B. and the nephews are based entirely on speculation. Appellant speculates that had C.B. been able to recall more details about the encounter with him in 1998, these details would have been exculpatory or advantageous to the defense. Similarly, appellant speculates that had the nephews been interviewed at the time of the incident or testified at trial, this testimony would also have been exculpatory or advantageous to the defense. "While a defendant is not required to articulate specifically what the testimony of a missing witness would have been, he is required to provide an explanation of what exculpatory testimony the witness might have offered." Willingham, 8th Dist. Cuyahoga Nos. 106706 and 107033, 2019-Ohio-1892, at ¶ 34, citing Jones at ¶ 28, and Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at ¶ 103.

         {¶ 22} Appellant's speculation regarding the lost evidence is insufficient for satisfying his burden of demonstrating actual prejudice. We cannot say that the lost or unavailable evidence identified by appellant would "minimize or eliminate the impact of the state's evidence and bolster the defense." Jones at ¶ 28, citing State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d 1097 (1984); see also State v. Hubbard, 12th Dist. Butler No. CA92-03-058, 1992 Ohio App. LEXIS 5784, 4 (Nov. 16, 1992), citing US. v. Moran, 759 F.2d 777 (9th Cir.1985) ("[p]roof of actual prejudice must be specific, particularized, and non-speculative.")

         {¶ 23} Finally, we note that appellant did not defend against the 1998 case on the theory that the sexual encounter between him and C.B. was consensual. Rather, appellant offered a complete defense of actual innocence at trial, suggesting, for instance, that the bra on which his DNA profile was recovered did not belong to C.B.

         {¶ 24} Based on the foregoing analysis, appellant failed to demonstrate actual prejudice resulting from the purportedly lost evidence or testimony of C.B. and her nephews.

         b. Change in Status

         {¶ 25} Appellant further argues that he suffered actual prejudice because his 1999 conviction[3] hampered the tactics available to him to defend against the allegations. Specifically, appellant asserts that had the 1998 case been prosecuted at or around the time of the incident, before his 1999 conviction, he could have (1) resolved the 1998 case and the 1999 case globally (i.e. entering a guilty plea disposing both criminal cases under which he would receive concurrent sentences), and (2) testified on his own behalf.

         {¶ 26} Appellant's global resolution argument is entirely speculative. Appellant speculates that (1) the state would have offered a global plea agreement resolving both criminal cases, (2) appellant would have accepted the global plea agreement, and (3) the trial court would have, in fact, ordered the sentences in the two cases to run concurrently with one another. This speculation does not satisfy appellant's burden of demonstrating actual prejudice.

         {¶ 27} Regarding any prejudice resulting from his 1999 conviction, appellant was not precluded from testifying in his own defense based on the 1999 conviction. Although the conviction may impact the credibility of appellant's testimony, he could have still elected to testify regarding the 1998 and 2018 incidents. Either appellant or defense counsel made the tactical decision not to call appellant at trial. Finally, to the extent that appellant argues he was prejudiced by his 1999 conviction because he could no longer take the stand and testify on his own behalf, appellant brought any such prejudice upon himself through his own actions. We will not penalize the state for the consequences that appellant now faces as a result of the conduct for which he was convicted.

         {¶ 28} Based on the foregoing analysis, we find that appellant failed to satisfy his burden of demonstrating actual prejudice resulting from the delay in prosecution. As a result, the burden did not shift to the state to demonstrate that the delay in prosecution was justified, and it was proper for the trial court to deny appellant's motion to dismiss on this basis alone.

         3. Justifiable Delay

         {¶ 29} Assuming, arguendo, that appellant established actual prejudice, the state produced evidence of a justifiable reason for delay in the commencement of prosecution. A delay in the commencement of prosecution may be found unjustifiable when the state deliberately delays prosecution in order to gain a tactical advantage over the defendant, "or when the state, through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased." Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097 (1984).

         {¶ 30} In the instant matter, appellant does not allege, nor does the record reflect that the state intentionally delayed prosecution in order to gain a tactical advantage over appellant. Furthermore, we cannot conclude that the state ceased its investigation in 1998 or 1999 and then moved forward with the prosecution in 2018 without new information.

         {¶ 31} The record reflects that between 1998 and the indictment in February 2018, several DNA tests were conducted. The results of these DNA tests constituted new information and evidence regarding the encounter between appellant and C.B.

         {¶ 32} C.B.'s rape-kit examination was conducted in 1998. The rape kit was tested for the first time in 2014. Although this initial test indicated that there was a DNA profile on the vaginal swabs, the DNA profile was incomplete, and as a result, could not be entered into CODIS.

         {¶ 33} A second round of DNA testing was conducted in or around October 2017. During the second round of testing, C.B.'s clothing was submitted to BCI. DNA analysis of C.B.'s bra revealed a DNA mixture that was consistent with C.B.'s DNA profile and a profile of an unknown male.

         {¶ 34} A third round of DNA testing was conducted in January 2018. During the third round of testing, a sample of appellant's DNA was compared to the unknown DNA profile obtained from the bra. This test confirmed that the DNA mixture on the bra was consistent with both C.B.'s DNA and appellant's DNA.

         {¶ 35} The first three rounds of DNA testing were conducted using "conventional DNA testing." (Tr. 1282.) A fourth round of DNA testing was conducted in April 2018. The fourth DNA test was conducted using "Y-STR DNA testing." (Tr. 1281.) This type of test "is a specialized DNA test where [analysts] look at only DNA on the Y chromosome. This makes it a male specific test and allows [analysts] to see if there is male DNA present when there is an abundance of female DNA that could be masking it." (Tr. 1281.) The fourth DNA test was conducted using "the new latest and greatest most advanced technology" that may not have been available at the time of the 1998 incident or the time the previous three DNA tests were conducted. The fourth DNA test confirmed that a male DNA profile, consistent with appellant's DNA, was present on the vaginal swabs.

         {¶ 36} Finally, in addition to the four rounds of DNA testing, a photo array was also administered to C.B. in December 2017. C.B. identified appellant as the individual that attacked her in 1998.

         {¶ 37} Aside from the new evidence based upon which the case was reopened and ultimately presented to the grand jury, the record reflects that the case was not closed at the time of the 1998 incident due to negligence or error in judgment on behalf of the state. Appellant contends that "[l]aw enforcement simply ignored [the victim's] claims in 1998 and failed to follow any of the multiple leads they had to investigate her allegation. In the intervening 20 years, they gathered no new evidence regarding [the victim's] allegations, but in 2018, they finally brought [appellant] to trial." Appellant's brief at 9. Appellant's argument is entirely unsupported by the record.

         {¶ 38} First, the record belies appellant's assertion that the police ignored CB.'s allegation. A police report was generated, and a rape-kit examination was conducted. C.B. described her assailant as a black male, 5'9", 135 pounds, with black hair and brown eyes. (Tr. 88.) She also informed investigators and medical personnel that her assailant's first name was Brian. She was unsure about her assailant's last name, but opined that his last name was "Cliffs" rather than "Clipps." (Tr. 847.) The investigating officers were unable to identify the assailant based on the information and partial name provided by C.B.

         {¶ 39} Furthermore, when officers tried to follow up with C.B. during the course of their investigation, they were unable to contact her. Defense counsel acknowledged as much during opening statements at trial. See tr. 417 (defense counsel acknowledged that the case was closed due to a detective trying to contact the victim on a number of different ...


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