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State v. Hines

Court of Appeals of Ohio, Third District, Marion

December 9, 2019


          Appeal from Marion County Common Pleas Court Trial Court No. 18-CR-0347

         Judgment Affirmed

          William J. Owen and Margaret S. Moore for Appellant

          Brian G. Jones and Elizabeth E. Osorio for Appellee


          WILLAMOWSKI, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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.

         {¶3} 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.[1] 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.

         {¶4} 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, [2] 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} However, the trial court was able to determine that Hines had established that a number of pieces of evidence were missing or otherwise unavailable.[3] 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 that

[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 prosecution.

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.

         Assignment of Error

         {¶10} The State filed its notice of appeal on January 30, 2019. Doc. 75. The appellant raises the following assignment of error:

The trial court abused its discretion by dismissing the case upon finding appellee was substantially prejudiced by ...

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