Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-18-626183-A and CR-18-626256-A
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.
A. Stanton, Cuyahoga County Public Defender, and Noelle A.
Powell, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
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.
Factual and Procedural History
2} On February 26, 2018, the Cuyahoga County Grand Jury
returned two indictments against appellant.
} 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
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
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
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
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
Law and Analysis
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.
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]
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.
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,  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." 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
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.
Change in Status
25} Appellant further argues that he suffered actual
prejudice because his 1999 conviction 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.
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
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
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