from Marion County Common Pleas Court Trial Court No.
William J. Owen and Margaret S. Moore for Appellant
G. Jones and Elizabeth E. Osorio for Appellee
The State of Ohio, as plaintiff-appellant ("the
appellant"), appeals the judgment of the Marion County
Court of Common Pleas, alleging that the trial court abused
its discretion in finding that the ability of the
defendant-appellee, Herbert Hines ("Hines") to
defend himself was substantially prejudiced by a
preindictment delay of six years. For the reasons set forth
below, the judgment of the trial court is affirmed.
and Procedural History
On April 25, 2012, Marion County Children Services
("MCCS") reported to the Marion County Sheriffs
Office ("Sheriffs Office") that Hines was alleged
to have committed several sex crimes. Doc. 73. October 19,
2018 Tr. 62. The police began an investigation into these
allegations. On April 27, 2012, Hines's residence was
searched, and three pornographic DVDs, a cell phone, and two
laptops were seized by the police. October 19, 2018 Tr. 16,
24. On June 29, 2012, this seized property was sent to the
Ohio Bureau of Criminal Investigation ("BCI").
Id. at 24. On December 13, 2012, BCI determined that
these items did not have evidentiary value for the
prosecution. Doc. 73.
During this process, the police discovered evidence of
another alleged offense. August 9, 2018 Tr. 15. This offense
was distinct from the alleged offenses that MCCS reported to
the Sheriffs Office on April 25, 2012. Id. at 14.
The victim of this alleged offense was Hines's wife.
Id. at 14-15. In 2012, Hines was charged with the
offense of unlawful sexual conduct with a
minor. Id. at 14. October 19, 2018 Tr.
62. This charge was subsequently dismissed in 2013. August 9,
2018 Tr. 14. However, at that time, the Marion County
Prosecutor's office did not charge Hines with the
offenses that are the subject of this appeal even though the
prosecutor was aware of these allegations. Id.
On November 14, 2013, Hines's counsel filed a motion that
requested his property be returned. Doc. 73. On January 3,
2014, BCI returned the seized items to the Marion County
Sheriff s Office. Doc. 73. On February 19, 2014, the trial
court granted Hines's motion to return the seized
property without any opposition from the State. Doc. 73. The
record indicates that, on March 20, 2014, Hines received at
least one laptop,  a cell phone, and three pornographic DVDs.
Doc. 73. The trial court stated, in its judgment entry that
"[t]he investigation was apparently closed in 2013 or
early 2014, without charges being filed." Doc. 73.
In 2015 or 2016, the former Marion County Prosecutor, Brent
Yeager ("Yeager"), had a meeting with the families
of two of the alleged victims. Doc. 36, 73. However, the
content of the conversations in these meetings was not
documented. Doc. 73. Subsequently, Yeager passed away in
October of 2017. Doc. 36. August 9, 2018 Tr. 16-17. After the
current prosecutor assumed office, an additional review of
this case was performed in 2017. Doc. 73. This review process
led to a decision to file charges against Hines in 2018,
which was over six years after the State first became aware
of the accusations against Hines. Doc. 73.
On July 11, 2018, Hines was indicted on five counts of rape
in violation of R.C. 2907.02(A)(1)(b); one count of pandering
sexually oriented material involving a minor in violation of
R.C. 2907.322(A)(1); one count of gross sexual imposition in
violation of R.C. 2907.05(A)(4); and one count of
disseminating matter harmful to juveniles in violation of
R.C. 2907.31(A)(3)(d). Doc. 1. The indictment alleged that
these offenses had been committed in between November 1, 2008
and October 31, 2011. Doc. 1. The count of pandering sexually
oriented material and the count of disseminating matter
harmful to juveniles were dismissed on October 19, 2018
because these charges were filed after the applicable statute
of limitations had run for these crimes. Doc. 44.
On September 28, 2018, Hines filed a motion to dismiss for
preindictment delay. Doc. 23. On October 18, 2018, the State
filed a memorandum in opposition to the defendant's
motion for dismissal. Doc. 36. On October 19, 2018, the trial
court held a hearing on the defendant's motion. October
19, 2018 Tr. 1. This hearing was continued to December 6,
2018 and then to December 28, 2018. At these hearings, Hines
testified about the items that were seized from his house
pursuant to a search of the premises. October 19, 2018 Tr.
29. The trial court also heard testimony from Larry Yoder
("Yoder"), who is an evidence officer for Marion
County; Lieutenant Jason Dutton ("Lieutenant
Dutton"), who was the primary investigating officer in
Hines's case; and Carrie Grogan, who was the placement
supervisor at Marion County Children Services. October 19,
2018 Tr. 7-8; December 28, 2018 Tr. 16, 18, 94.
On December 31, 2018, the trial court issued its judgment
entry deciding this matter. Doc. 73. The trial court found
that the documentation in this case was "weak,"
making a determination as to what evidence had been collected
during the course of the investigation difficult to state
definitively. Doc. 73. The trial court noted that Lieutenant
Dutton testified "that certain items of evidence should
be in the possession of * * * Yoder" but "Yoder
testified that the items did not exist." Doc. 73. There
was also little documentation regarding the review of the
electronic devices that had been seized from Hines. Doc. 73.
However, the trial court was able to determine that Hines had
established that a number of pieces of evidence were missing
or otherwise unavailable. Doc. 73. The trial court found that
[a]ll of the missing items of evidence are material
to this case and are items which the Defendant was entitled
to receive as part of discovery. The prosecution appears to
have made little to no effort to investigate what has
happened with regard to any of the missing items. Nearly all
of the evidence which was developed at the hearing as to what
items exist or don't exist was due to subpoenas duces
tecum issued by the Defendant.
Doc. 73. After considering the facts and testimony gleaned
through three hearings on this motion, the trial court found
[h]ad this case been prosecuted years earlier when
the investigation was completed and before evidence was
disposed of, it is reasonable to believe that all or most of
the evidence would exist. Moreover, it would be more possible
for the memories of witnesses to fill in any gaps. That is no
longer the case. For these reasons, this Court finds that the
Defendant has met his difficult burden of establishing
substantial prejudice, caused by the delay in
Doc. 73. The trial court then found that the State had not
presented a reason that justified this preindictment delay
and granted Hines's motion to dismiss. Doc. 73.
The State filed its notice of appeal on January 30, 2019.
Doc. 75. The appellant raises the following assignment of
The trial court abused its discretion by dismissing
the case upon finding appellee was substantially prejudiced