State v. Jenkins , 2022 Ohio 297 ( 2022 )

[Cite as State v. Jenkins, 2022-Ohio-297.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109421
v. :
MICHAEL J. JENKINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: February 3, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-585521-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Erika B. Cunliffe, Assistant Public Defender, for
appellant.
EMANUELLA D. GROVES, J.:
{¶ 1} Defendant-appellant Michael Jenkins (“Jenkins”) appeals from the
trial court’s decision to grant plaintiff-appellee the state of Ohio’s (“the state”)
motion to reinstate his conviction, following the court’s denial of his motion to
dismiss for preindictment delay.1 For the reasons that follow, we affirm in part,
reverse in part, and remand.
Factual and Procedural History
{¶ 2} This case is the latest in a series of appeals from Jenkins 2014
convictions for rape and kidnapping that stemmed from a 1994 incident. On May 15,
2014, Jenkins and his codefendant Oscar Dickerson (“Dickerson”) were each
indicted on two counts of rape, one count of kidnapping, and two counts of
complicity.
{¶ 3} The facts in this case have been completely and comprehensively set
out in State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.) (“Jenkins II”)
and State v. Dickerson, 2016-Ohio-807, 60 N.E.3d 699 (“Dickerson I”). We
summarize below:2
The following facts were elicited at trial * * *. The victim, J.R., testified
that on July 2, 1994 * * * she was 16 years old. She had spent the day
and evening with her boyfriend at his house, drinking and smoking
marijuana. She left her boyfriend’s house some time after midnight to
walk home. Her boyfriend walked with her approximately halfway
home. She proceeded to walk the remainder of the approximately 40-
minute walk home alone.
When she was approximately ten minutes from her house, three males
in a car approached her and called out to her as the car drove past. The
car “circled back” a few times, and J.R. testified that she “waved them
off.” J.R. started to cut across an open area to avoid the car, but the car
pulled over near a library. J.R. testified that the car was driven by an
older white male. Two younger black males were also in the car.
1 This is a companion appeal to State v. Dickerson, 8th Dist. Cuyahoga No. 109434
(“Dickerson V”).
2 Jenkins II at ¶ 3-21.
One of the younger men got out of the car and approached J.R., offering
her a ride home. She initially declined, but the young man persisted.
At approximately 1:30 a.m., J.R. ultimately got into the car and told the
men where she lived. J.R. testified that she was “not thinking” when
she got in the car; she also testified that she accepted the ride because
she was scared. The car proceeded to drive past her street. J.R.
testified that she again told the driver where she lived as they passed
her street, but she was ignored.
The car eventually pulled into a hotel parking lot. The driver of the car,
later identified as Jerry Polivka, got out of the car and proceeded to rent
a hotel room. A receipt indicated that the room was rented at
approximately 4:42 a.m. J.R. remained in the car with the other two
men, the then-18-year-old defendant-appellant Michael Jenkins and
his then-19-year-old codefendant Oscar Dickerson. J.R. testified that
she did not know the men, but they identified themselves as “Mike” and
“Oscar” or “O,” respectively.
When Polivka returned to the car, he drove to a back entrance of the
hotel, where Dickerson and Jenkins walked J.R. into a hotel room.
Polivka drove off, leaving J.R., Dickerson, and Jenkins at the hotel.
J.R. testified that she tried to think of a way to get out of the situation.
At one point, she asked to go outside to smoke a cigarette, hoping to
escape, but one of the young men accompanied her. J.R. accepted crack
cocaine from him to put on the end of her cigarette, which she testified
that she smoked in an attempt to “numb” herself for what she believed
“was going to happen.” Dickerson and Jenkins proceeded to have
vaginal intercourse with J.R. in the bathroom and bedroom of the hotel
room.
After both men had intercourse with J.R., she took a shower in the hotel
bathroom. When she returned to the living area of the hotel room,
Jenkins and Dickerson were asleep. J.R. took that opportunity to
escape from the hotel room and go home.
J.R. testified that when she got home, she tried to run upstairs to the
bathroom, but her mother confronted her and demanded to know
where she had been. J.R. then told her mother what had happened at
the hotel room.
J.R.’s mother testified that she was on the porch when J.R. returned
home that morning and that J.R., who usually avoided her, sat down
on the porch and looked like she wanted to talk. According to J.R.’s
mother, J.R. then voluntarily told her what had happened. J.R.’s
mother then called the police, who responded to the call at J.R.’s home.
Subsequently, J.R. went to the hospital and was treated for sexual
assault. The responding officers went to the hotel, where they found
Dickerson and Jenkins asleep in the hotel room. Both men were
arrested.
The police obtained the receipt for the hotel room from a hotel clerk.
The receipt identified Jerry Polivka as the individual who rented the
room. Polivka was named as a suspect in the initial report, but was
never contacted by the police in connection with this case.
After J.R. left the hospital, she went with her mother to meet with a
detective to discuss the incident. J.R. testified that the detective was
“very rude” and shared her opinion of the incident, leaving J.R. feeling
humiliated and prompting her to tell the detective to “forget it if she
wasn’t going to help.” J.R.’s mother, however, testified that the
detective was respectful.
Following this meeting, the detective noted in the case file that no
further investigation would take place.
Several days later, J.R. was walking to her boyfriend’s house when
someone she recognized as “Mike” pulled up alongside her in a car. J.R.
testified that Mike seemed angry and “forced” her to sign a note
recanting her statements about the incident. J.R. signed the note and
immediately reported this incident to the police. The police made an
intimidation report but never followed up on the incident.
J.R. testified that shortly after the July 2 events, she found out that she
was pregnant and did not follow up with the police because she wanted
to “get on with her life.”
On August 24, 2012, J.R.’s rape kit was submitted to BCI for DNA
testing as part of the Sexual Assault Kit Testing Initiative. DNA analysis
showed Dickerson’s DNA on vaginal and rectal swabs and Jenkins’s
DNA on the victim’s bathing suit bottoms. The detective assigned to
the case discovered that Polivka was deceased.
On May 15, 2014, Dickerson and Jenkins were each indicted on one
count of rape for vaginal intercourse, one count of rape for fellatio, two
corresponding counts of complicity to commit rape, and one count of
kidnaping. Both defendants pleaded not guilty to all charges.
On November 5, 2014, counsel for Dickerson filed a motion to dismiss
based on preindictment delay. Jenkins’s counsel did not file a similar
motion at this or any other point in the proceedings.
The docket in Dickerson’s case does not indicate a ruling on Dickerson’s
motion to dismiss. In his appeal to this court, Dickerson characterized
the motion as having been denied as untimely, and this court adopted
that characterization. Dickerson II at ¶ 2. A review of the transcript
shows that the trial court declined to consider the motion because it
was untimely.
A jury trial took place from November 12 to November 18, 2014. The
jury found both defendants guilty of one count of rape for vaginal
intercourse, one count of complicity for each other’s rape conviction,
and one count of kidnaping. The jury found both defendants not guilty
of the rape and complicity charges as they related to fellatio.
{¶ 4} On December 29, 2014, the court sentenced Jenkins to eight years in
prison on each count, to be served concurrently. This sentence was imposed under
Am.Sub.H.B. No. 86, the sentencing regime that became effective on September 30,
2011, and was in effect at the time of sentencing in 2014.
{¶ 5} The state appealed, arguing that the trial court erred by ordering a
definite term of incarceration because Jenkins would have been subject to an
indefinite sentence under the sentencing regime as it existed at the time of the 1994
offense. Jenkins did not cross-appeal his conviction. This court affirmed Jenkins’
conviction. State v. Jenkins, 8th Dist. Cuyahoga No. 102462, 2015-Ohio-4583(“Jenkins I”).3
3 The state also appealed Dickerson’s sentence, arguing that the trial court erred by
ordering a definite term of incarceration contrary to the sentencing scheme that existed in
1994. Dickerson cross-appealed, arguing that the trial court erred in denying his motion to
dismiss for preindictment delay and that his trial counsel was ineffective for not timely
filing the motion. This court vacated Dickerson’s conviction, finding that his counsel was
deficient for not timely filing the motion to dismiss and that there was a reasonable
{¶ 6} On December 2, 2016, Jenkins filed a delayed appeal arguing, in
relevant part, that the trial court erred in failing to dismiss the case based on
prejudicial preindictment delay and that his trial counsel was ineffective for failing
to file a motion to dismiss based on prejudicial preindictment delay. Jenkins II at
¶ 1. Noting that the court “agreed” with the finding in Dickerson II that the death of
Jerry Polivka constituted “actual prejudice,” this court concluded that Jenkins’
counsel was ineffective for failing to file a motion to dismiss for preindictment delay.
Id. at ¶ 1, 45. Accordingly, this court reversed Jenkins’ convictions and remanded
the matter to the trial court “for further proceedings consistent with this opinion.”
Id. at ¶ 46.
{¶ 7} The state filed a motion for reconsideration, asking this court to
clarify its decision. Specifically, the state asked this court to correct the portion of
its opinion that found that Jenkins suffered actual prejudice. The state argued that
for Jenkins II to be in line with our finding in Dickerson II the court should find that
Jenkins would have had a reasonable probability of success had he filed a timely
motion to dismiss for preindictment delay, not that Jenkins suffered actual
prejudice. Furthermore, the state argued that on remand, Jenkins would have an
probability that it would have been granted had it been timely filed, given that Dickerson
“had a strong, viable claim of actual prejudice.” Dickerson I. The state appealed this
decision to the Ohio Supreme Court, and the Supreme Court vacated Dickerson I and
remanded the case “for application of State v. Jones, [148 Ohio St.3d 167, 2016-Ohio-5105,
[69 N.E.3d 688]].” State v. Dickerson, 146 Ohio St.3d 1493, 2016-Ohio-5585, 57 N.E.3d
1172.
On remand and after applying Jones, this court reached the same conclusion,
finding that Dickerson’s counsel was ineffective.
opportunity to have a hearing on the issue of prejudicial preindictment delay.
Jenkins filed a motion in opposition, arguing that the decision was clear and there
was no need for further hearings on the issue of preindictment delay. This court
summarily denied the state’s motion for reconsideration, and the case was
remanded to the trial court.
{¶ 8} On remand, on February 16, 2018, Jenkins filed a motion to dismiss
based on preindictment delay. Jenkins argued that the physical evidence supported
that the sexual encounter with J.R. was consensual. Jenkins also argued that he was
prejudiced by the preindictment delay due to Polivka’s death. In this regard, Jenkins
posited that Polivka could cast doubt on the state’s case by explaining what
happened in the car. Additionally, Jenkins argued, at the very least Polivka could
have cast doubt on the kidnapping charge and could have cast doubt on J.R.’s
version of what occurred in the hotel room.
{¶ 9} The state opposed the motion, and the trial court held hearings on the
motion on February 22 and May 3, 2018, respectively. At the hearings, the trial court
took evidence on the issue of preindictment delay in the form of trial transcripts and
heard arguments from counsel.
{¶ 10} On June 4, 2018, the trial court denied Jenkins’ motion, finding that
Jenkins did not suffer prejudice due to the delay. The state then filed a motion to
reinstate Jenkins’ conviction. On July 6, 2018, the trial court denied the motion.
The state sought leave to appeal the denial of its motion, and this court granted
leave. Jenkins also appealed the trial court’s denial of his motion to dismiss for
preindictment delay. This court dismissed Jenkins’ appeal, finding that the trial
court’s denial of his motion to dismiss for preindictment delay was not a final
appealable order. State v. Jenkins, 8th Dist. Cuyahoga No. 107409, 2019-Ohio-2735(“Jenkins III”). Likewise, this court dismissed the state’s appeal, finding that the
trial court’s denial of the state’s motion to reinstate Jenkins’ convictions was not a
final appealable order. State v. Jenkins, 8th Dist. Cuyahoga No. 107518, 2019-Ohio-
2737.
{¶ 11} On November 22, 2019, the state filed a motion asking the trial court
to reconsider the denial of its motion to reinstate the convictions. On November 25,
2019, the trial court held a hearing on the motion. On December 31, 2019, the trial
court granted the state’s motion to reinstate Jenkins’ conviction. Its judgment entry
stated, in part:
[U]pon correcting the pretrial error by a full presentation and
consideration of the motions to dismiss, there were no proceedings
consistent with the appellate decisions left to conduct. If the motions
had been granted, the indictments against Jenkins and Dickerson
would simply have been dismissed by a judgment entry without further
proceedings. But the motions were denied and the error-free trial that
ordinarily would have followed such a denial has already taken place.
Therefore, the only thing left is to reinstate the defendants’ convictions
without further proceedings because it is consistent with the decisions
by the court of appeals and with the jury’s decisions beyond a
reasonable doubt about the guilt of both defendants.
{¶ 12} Jenkins now appeals and assigns the following two errors for review:
Assignment of Error No. 1
The trial court erred, and thereby, violated Jenkins’ right to due process
when it failed to dismiss this case for prejudicial pre-indictment delay.
Assignment of Error No. 2
The trial court erred by reinstating Michael Jenkins’s conviction when
this court had reversed and remanded it after concluding that he had
suffered actual prejudice due to pre-indictment delay.
Law and Analysis
{¶ 13} In his first assignment of error, Jenkins argues his right to due
process was violated when the trial court failed to dismiss the case for prejudicial
preindictment delay. In his second assignment of error, Jenkins argues that the trial
court erred in reinstating his conviction after that conviction was reversed and
remanded.
{¶ 14} In support of his first assignment of error, Jenkins argues that
pursuant to the law-of-the-case doctrine, this court’s prior decisions in Jenkins’ case
established that he had suffered actual prejudice from preindictment delay.
Therefore, according to Jenkins, the trial court’s denial of his motion to dismiss for
preindictment delay violated the law-of-the-case doctrine and ran afoul of this
court’s mandate in Jenkins II. Specifically, Jenkins argues the trial court should
have found he was actually prejudiced by the period of preindictment delay and
dismissed the case without a hearing.
{¶ 15} Jenkins’ attempt to distinguish the court’s opinion in Jenkins II with
State v. Carter, 8th Dist. Cuyahoga No. 91019, 2008-Ohio-6955, must fail. In
Carter, the court found that defense counsel was ineffective by failing to file a
motion to suppress statements the defendant had made to the police. Carter, 8th
Dist. Cuyahoga No. 91019, 2008-Ohio-6955, ¶ 23. The court further found that
because a motion to suppress was not filed, and no evidentiary hearing was held in
the trial court, the record did not reflect the circumstances under which the
defendant made the incriminating statements. Id. at ¶ 25. With critical information
absent from the record, the appellate court was unable to determine whether the
statements should have been suppressed and remanded the case for further
proceedings. Id. at ¶ 34. In Jenkins II, remand was necessary because our
determination of ineffective of assistance of counsel included an analysis of
preindictment delay; but did not decide that issue.
{¶ 16} The state properly identified this distinction when it contrasts the
holding in Jenkins II with the holding in Dickerson II, noting that a finding of actual
prejudice differs from a finding that Dickerson had a “reasonable probability of
success” if he had timely filed his motion. Focusing primarily on the holding in
Dickerson II, the state argues that finding that a motion had a reasonable probability
of being granted is different from a finding that it should be granted. We agree.
{¶ 17} While we are mindful that the definitive language in Jenkins II
strongly signaled that the court believed had Jenkins’ counsel timely filed a motion
to dismiss, it would have been granted, this does not change the issue that was before
the court in Jenkins II. The discrete issue was whether Jenkins received ineffective
assistance of counsel; the court was not making an ultimate determination of
whether Jenkins had suffered actual prejudice as a result of preindictment delay.
The opinion in Jenkins II, therefore was constrained by the legal standard of
whether there was a “reasonable probability” that a motion to dismiss for
preindictment delay would have been granted.
{¶ 18} The court in Jenkins II addressed the theoretical question of a motion
that had never been filed nor fully litigated in the trial court. Jenkins never raised
the issue and his codefendant Dickerson’s motion was untimely and never litigated.
It is undisputed that the remand ultimately provided the parties an opportunity to
present new evidence and arguments to satisfy their respective burdens related to
the motion to dismiss. This was an opportunity the parties did not have at the
appellate level, because the scope of this court’s review was limited to whether
Jenkins had received effective assistance of counsel. Therefore, the trial court
neither violated the law-of-the-case doctrine nor ran afoul of this court’s mandate in
Jenkins II when it held a hearing on the motion to dismiss on remand. In light of
this subtle but significant distinction, we disagree with Jenkins that the trial court’s
decision violated the law-of-the-case doctrine.
{¶ 19} We now address whether the trial court erred in denying Jenkins’
motion to dismiss for preindictment delay. Because we find Jenkins met his burden
in showing that he was prejudiced by the period of preindictment delay, we agree
with Jenkins to the extent that the trial court erred in its failure to find actual
prejudice by the preindictment delay. This court applies a de novo standard of
review to a trial court’s decision regarding legal issues in a motion to dismiss for
preindictment delay. State v. Jabbar, 8th Dist. Cuyahoga No. 109642, 2021-Ohio-
1191, ¶ 28, citing State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-
Ohio-5519, ¶ 12. Therefore, we will independently review the trial court’s decision
without any deference to its determination. Id., quoting State v. Clay, 2d Dist.
Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. We do, however, afford deference to
the trial court’s findings of fact. Id., citing State v. Walker, 8th Dist. Cuyahoga No.
106414, 2018-Ohio-3669, ¶ 15. Therefore, we must accept the trial court’s factual
findings if they are supported by competent and credible evidence in the record. Id.,citing State v. Burnside, 100 Ohio St.3d 152, 2002-Ohio-5372, 797 N.E.2d 71, ¶ 8.
{¶ 20} Although the Sixth Amendment to the United States Constitution on
its face provides no protection to those who have not been charged, “[w]hen
unjustifiable preindictment delay causes actual prejudice to a defendant’s right to a
fair trial, despite the state’s initiation of prosecution within the statutorily defined
limitation period, the Due Process Clause affords the defendant additional
protection.” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688,
¶ 11, citing United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 52 L.Ed.2d
752 (1977). An unjustifiable delay between the commission of an offense and a
defendant’s indictment for committing that offense, which results in actual
prejudice to the defendant, is a violation of the right to due process of law under
Section 16, Article I of the Ohio Constitution and the Fifth and Fourteenth
Amendments to the United States Constitution. State v. Luck, 15 Ohio St.3d 150,
472 N.E.2d 1097 (1984), paragraph two of the syllabus.
{¶ 21} Courts apply a two-part test to determine whether a delay in
prosecution has violated the defendant’s due process rights. The defendant bears
the initial burden of showing that they were substantially and actually prejudiced by
the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998). If the
defendant establishes actual prejudice, the burden shifts to the state to produce
evidence of a justifiable reason for the delay. Luck, 15 Ohio St.3d at 154, 472 N.E.2d
1097, citing United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d
468 (1971).
{¶ 22} A determination of actual prejudice involves a “‘delicate judgment’”
and a case-by-case consideration of the particular circumstances involved. State v.
Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20, citing State v.
Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting Marion,
404 U.S. at 325, 92 S.Ct. 455, 30 L.Ed.2d 468. Further, “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.{¶ 23} The Ohio Supreme Court has repeatedly acknowledged the difficult
burden placed on defendants particularly because proof of prejudice is “always
speculative.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127,
¶ 100, citing United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012),
quoting United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997). While
acknowledging the inherently speculative nature of actual prejudice arguments, the
court has also clarified that a successful claim of actual prejudice cannot be purely
speculative: “the mere possibility that ‘memories will fade, witnesses will become
inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.’”
State v. Crymes, 8th Dist. Cuyahoga No. 104705, 2017-Ohio-2655, ¶ 16, quoting
Jones at ¶ 21. Nevertheless, a defendant is not required to establish precisely what
an unavailable witness would testify to, or that the testimony would be directly
exculpatory. Id., citing Jones at ¶ 27. Instead, actual prejudice exists when “missing
evidence or unavailable testimony, identified by the defendant and relevant to the
defense, 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, 472 N.E.2d 1097(1984) at 157-158.
{¶ 24} In denying Jenkins’ motion to dismiss for preindictment delay, the
trial court held that there is little doubt that Polivka would have “relevant testimony”
to offer. Despite this, though, the court found that it could not conclude that this
testimony would minimize or eliminate the state’s evidence or bolster the defense.
The court supported this conclusion primarily with the following findings: 1)
Polivka likely would have been indicted with Jenkins and Dickerson and thus unable
to testify at trial; 2) nothing in the record supports the conclusion that Polivka would
contradict J.R.’s version of events; 3) even if Polivka contradicted J.R.’s version of
events, this is insufficient to establish actual prejudice because he would be unable
to testify about what happened in the hotel room. After thorough review, we
conclude that the evidence presented to the trial court contradicts this holding.
{¶ 25} We begin with the finding that Polivka likely would have been unable
to testify as a result of his status as a codefendant. The conclusion that Polivka would
have been unavailable as a witness is rejected. This conclusion is wholly
unsupported by competent and credible evidence in the record, contradicts Jenkins
II, and imposes a new burden on defendants in preindictment cases. The court in
Jenkins II agreed with the court in Dickerson II which resolved this argument when
it was made by the state by reasoning that, although one of the officers assigned to
the case had a name and address for Polivka, he made no attempt to contact him
and did not consider him a suspect. Dickerson II at ¶ 52. Without any attempt by
law enforcement to contact Polivka to speak with him, let alone indict him, there is
no basis for concluding that he would have been unavailable as a witness by virtue
of his status as a codefendant. Even if the court’s conclusion were supported by
competent and credible evidence, we are aware of no case in which a defendant is
required to show not only that a deceased witness would provide relevant testimony
that would minimize the impact of the state’s case, but also that the witness would
be able to overcome any alleged procedural barriers to testifying on the defendant’s
behalf. The burden for a defendant attempting to establish they suffered actual
prejudice as a result of preindictment delay is already “nearly insurmountable.”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 100. We
decline to further heighten this burden here.
{¶ 26} Next, we will address the trial court’s second and third findings
together. With respect to the trial court’s finding that nothing in the record supports
the conclusion that Polivka could have provided a version of events that contradicted
J.R.’s, we find this to be a misapplication of the standard articulated by the Ohio
Supreme Court in Luck and Jones. In Luck, the Ohio Supreme Court found that the
defendant was prejudiced by a 15-year preindictment delay for murder. The court
balanced the alleged sources of actual prejudice — the death of two key witnesses,
the fading of memories and changing of appearances, and the loss of all of the
recorded interviews with potential witnesses compiled shortly after the murder —
against the other admissible evidence in the case and found that Luck had suffered
actual prejudice. Luck at 157. Specifically, the court found that even though the
state had circumstantial evidence linking Luck to the victim’s death, “it cannot be
said that the missing evidence or the dead witnesses would not have minimized or
eliminated the impact of the state’s circumstantial evidence.” Id.{¶ 27} As with the missing witness in the instant case, Luck did not show
exactly what the missing witnesses would have testified to in support of her defense.
Instead, Luck merely argued that one witness, a friend who was allegedly in the
victim’s apartment when she was killed, “was the one person who could have helped
her in this matter but he is dead.” Id. Likewise, the other witness was a doctor who
allegedly treated Luck for a hand injury on or around the date of the murder. Luck
did not explain how exactly the doctor’s testimony would be relevant, let alone how
it would have bolstered her defense. Instead, the Ohio Supreme Court found that
Luck was “obviously prejudiced by not being able to seek verification of her story
from [her friend] and thereby establish mitigating factors or a defense to the charge
against her.” Id. at 158. When the court reiterated the relevant standard in Jones,
it looked to Luck, stating that Luck suffered actual prejudice “although there was no
record establishing what the witness would have actually testified to.” Jones at ¶ 25.
{¶ 28} The Jones standard makes clear that a defendant’s arguments in
support of an actual prejudice claim cannot be based on “mere speculation” because
the theoretical possibility of lost evidence is insufficient to establish actual prejudice.
Id. at ¶ 27. In cases in which the defendant’s claims regarding lost evidence or
unavailable witnesses are entirely unsupported by the record, this court has
correctly found that those claims are too remote and speculative to establish actual
prejudice. For example, in a recent case, this court found that a defendant’s
arguments that law enforcement could have investigated the car in which he
allegedly raped the victim if he had been indicted at the time of the incident was
insufficient to establish actual prejudice where, according to the defendant’s own
trial testimony, he did not have a car at the time of the incident. State v. Danzy, 8th
Dist. Cuyahoga No. 109433, 2021-Ohio-1483, ¶ 25. The Danzy Court further held
that the unavailability of two unknown individuals who allegedly found the victim
and drove her to the hospital did not constitute actual prejudice because the
individuals were never identified, let alone identified as witnesses, and therefore
there was nothing in the record indicating what their unavailable testimony might
have offered to the defense. Id., citing State v. Knox, 8th Dist. Cuyahoga No. 107414,
2019-Ohio-1246, ¶ 37.
{¶ 29} This is not a case where Jenkins’ actual prejudice is based on
unfounded or entirely speculative claims. Instead, this case closely resembles Luck.
Jenkins does not assert what exactly Polivka would have testified to at trial. Like
Luck, though, Jenkins has clearly shown that he was prejudiced because he was
unable to seek verification of his story from someone who was with him on the night
of the incident. Furthermore, Luck’s claim that one of the unavailable witnesses in
her case was present for the murder was unsubstantiated. Jenkins, however, has
pointed to evidence in the record, including the victim’s own testimony, showing
that Polivka was present when the victim first encountered the defendants, drove
them around, and ultimately rented the hotel room where the alleged rape took
place. Therefore, Jenkins’ claim that he suffered actual prejudice is significantly
stronger than Luck’s successful claim because it is corroborated by documentary
evidence and testimony in the record.
{¶ 30} Further, we are cognizant of the unique nature of rape cases in the
context of preindictment delay. This court has noted that, “unlike other crimes of
violence, rape cases where consent is the only issue often turns on a credibility
contest between the accused and the accuser.” State v. Crymes, 8th Dist. Cuyahoga
No. 104705, 2017-Ohio-2655, ¶ 19. Recognizing the particular relevance of witness
credibility in this context, the Crymes Court found that missing phone records from
hours before the alleged rape in that case constituted actual prejudice because,
although the records obviously could not have provided direct proof of consent, they
“would help appellee verify his account of the event, thereby bolstering the defense.”
Id. at ¶ 20, citing Luck at 157-158 and Jones at ¶ 28.
{¶ 31} Similarly, as in Jenkins II we reach the same conclusion here. While
Polivka’s testimony almost certainly could not have provided an account of what
took place in the hotel room, he likely would have testified about how exactly J.R.
came to be in the backseat of his car and what transpired during the hours between
1:30 a.m. when J.R. got in the car and 4:42 a.m. when Polivka rented a hotel room
for J.R. and the defendants. Likewise, as the court in Jenkins II noted, Polivka was
with the victim for a number of hours during the course of the alleged crimes and
the victim herself was unable to account for that time. Jenkins II at ¶ 36-37. If
Polivka were able to provide an account of the stretch of several hours that was not
accounted for by J.R., this unquestionably would have minimized or eliminated the
impact of the state’s evidence by contradicting a significant aspect of its key witness’s
testimony. Finally, we note that Jenkins was also charged with kidnapping.
Arguably, this kidnapping began from the moment in which J.R. entered the car and
alleged that Polivka passed her street and continued driving away from her house.
We reiterate that a defendant is not required to show exactly how lost evidence or
unavailable testimony would support his case; nor is it required that the evidence
would have been directly exculpatory. State v. Crymes, 8th Dist. Cuyahoga No.
104705, 2017-Ohio-2655, ¶ 16, quoting Jones at ¶ 27. Most importantly, the
defendant must show that the evidence would minimize or eliminate the impact of
the state’s case or bolster the defense. Jones at ¶ 28. With that in mind, we find that
it is entirely reasonable to conclude that Polivka, as the person driving the car in
which J.R. was kidnapped, certainly could have provided testimony that this aspect
of the incident was consensual, therefore bolstering Jenkins’ defense. For these
reasons, we find that Jenkins suffered actual prejudice as a result of the nearly 20-
year preindictment delay.
{¶ 32} Succinctly, there is no doubt that the lengthy delay between the
allegation and the indictment prejudiced Jenkins’ defense. After considering the
evidence as it existed when the indictment was filed, we find that Jenkins was
prejudiced by the 20-year delay. Jenkins established that he was actually and
substantially prejudiced by the death of Polivka whose testimony could have
bolstered his defense as to all charges and undermined the state’s case with respect
to the rape by calling into question the issue of consent and the credibility of J.R.
Having determined that Polivka’s death created actual prejudice were Jenkins to
stand trial today, we now turn our attention to the second prong of the analysis, the
state’s reason for the delay.
{¶ 33} In the instant case, the trial court elected not to rule on the second
prong. Having found that Jenkins failed to prove prejudice, the trial court
determined that it was unnecessary to address whether the state had a justifiable
reason for the delay noting:
Because prejudice hasn’t been proved it is not necessary to make a
finding of whether the delay from the crime until the indictment was
justified. Nevertheless, because of the possibility that prejudice would
be found the parties made a full record of the evidence and their
respective arguments in support of their competing claims that delay
was or was not justified.
{¶ 34} Even though the trial court noted there was a full record made of the
parties’ respective arguments, we are restricted in our review by two well-settled
principles of appellate review:
First, under Article IV, Section 3(B)(2) of the Ohio Constitution,
appellate courts have jurisdiction to “review and affirm, modify, or
reverse judgments or final orders of the courts of record inferior to the
court of appeals within the district.” * * * Second, an appellate court
limits review to issues actually decided by the trial court in its
judgment. See Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 89, 585
N.E.2d 384 (1992) (declining to rule on issue not decided by trial
court.)
(Emphasis added.) Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51
N.E.3d 593, ¶ 21.
{¶ 35} Having determined there was no actual prejudice, it was unnecessary
for the trial court to address the second prong of the preindictment delay test.
Although the record is complete before us, the decision on the second prong remains
the province of the trial court. Therefore, we cannot address it.
{¶ 36} Accordingly, we sustain the first assignment of error in part and
overrule it in part. The trial court erred in finding that Jenkins was not prejudiced
by the period of preindictment delay. However, we affirm the trial court’s decision
not to address the reason for the delay because that was the appropriate decision
under preindictment-delay analysis when a court does not find prejudice. As we
have found prejudice, we sustain the first assignment of error and remand the case
for the trial court to conduct the second prong of the review.
{¶ 37} In the second assignment of error, Jenkins argues that the trial court
erred in reinstating his convictions. Based on our resolution of the first assignment
of error, where we found actual prejudice and remanded to the trial court to
complete the second prong of the test for prejudicial preindictment delay, we decline
to address the second assigned error because it is not yet ripe for review.
{¶ 38} Judgment affirmed in part, reversed in part, and remanded for
proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EMANUELLA D. GROVES, JUDGE
MARY EILEEN KILBANE, J., CONCURS IN PART AND DISSENT IN PART
(WITH SEPARATE OPINION ATTACHED);
SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)
MARY EILEEN KILBANE, J., CONCURRING IN PART AND DISSENTING IN
PART:
{¶ 39} I respectfully concur in part and dissent in part from the majority
opinion. I agree with the majority’s conclusion that Jenkins established that he
suffered actual and substantial prejudice as a result of the nearly 20-year
preindictment delay in this case. I disagree with the majority’s conclusion that we
are precluded from addressing the second prong of the preindictment delay test
concerning whether the state had a justifiable reason for the delay.
{¶ 40} This is the fifth appeal in which this court has addressed claims
arising out of Jenkins’s 2014 convictions. In analyzing whether Jenkins received
ineffective assistance of counsel for his trial counsel’s failure to file a motion to
dismiss for preindictment delay, this court agreed with an earlier appeal in
codefendant Dickerson’s case and found “that the unavailability of Jerry Polivka
constitutes actual prejudice.” State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th
Dist.). Despite this court’s finding of actual prejudice, the trial court on remand
ignored this court’s finding and analysis in addressing the issue of preindictment
delay.
{¶ 41} The majority in Jenkins II placed particular emphasis on the fact that
Polivka would have been able to testify as to what occurred during the almost three-
hour period that the victim was completely unable to remember. Jenkins II at ¶ 37.
The victim was the state’s key witness at trial. She testified that at the time of the
alleged rape, she had been “living recklessly,” and that on the day of the incident,
she had been drinking and smoking and was under the influence. Id. at ¶ 7.
Although the timeline presented by the state at trial was based largely on the victim’s
recollection of events, the victim was unable to recall what exactly happened
between approximately 1:30 a.m., when she accepted a ride from Polivka, who was
driving with Dickerson and Jenkins as passengers, and 4:42 a.m., when the hotel
receipt showed that Polivka rented a hotel room for the victim and defendants. At a
minimum, Polivka’s testimony would have filled in a considerable gap in the
sequence of events as they were presented at trial.
{¶ 42} State v. Luck, 15 Ohio St.3d 150, 157, 472 N.E.2d 1097 (1984),
remains binding precedent on Ohio courts in preindictment delay cases. In the
instant case, Jenkins presents a significantly stronger claim of actual prejudice than
the appellant in Luck. In Luck, the Ohio Supreme Court found that the defendant
was prejudiced by a 15-year preindictment delay for murder. The court balanced the
alleged sources of actual prejudice — the death of two witnesses, the fading of
memories and changing of appearances, and the loss of all of the recorded interviews
with potential witnesses compiled shortly after the murder — against the other
admissible evidence in the case and found that Luck had suffered actual prejudice.
State v. Luck, 15 Ohio St.3d 150, 157, 472 N.E.2d 1097 (1984). Specifically, the court
found that even though the state had circumstantial evidence linking Luck to the
victim’s death, “it cannot be said that the missing evidence or the dead witness would
not have minimized or eliminated the impact of the state’s circumstantial evidence.”
Id.{¶ 43} Unlike Jenkins, Luck confessed to killing the victim in self-defense on
the day of her arrest.4 Luck’s version of events did not dispute the fact that she killed
the victim; Luck essentially asserted that she killed the victim in self-defense. This
4 Although the Ohio Supreme Court ultimately determined that Luck’s confession
was obtained in violation of her Sixth Amendment rights, it considered her claim of actual
prejudice amounting to preindictment delay in the context of the alleged confession.
is analogous to the instant case, in which Jenkins does not contest that he had a
sexual encounter with the victim, but his theory of the case throughout trial and
numerous appeals has been based on the notion that the encounter was entirely
consensual.
{¶ 44} As with the missing witness in the instant case, Luck did not show
exactly what the missing witnesses in her case would have testified to in support of
her defense, nor was she required to have done so. Instead, Luck merely argued that
one witness, a friend who was allegedly in the victim’s apartment when the victim
was killed, “was the one person who could have helped her in this matter but he is
dead.” Id. The other witness was a doctor who allegedly treated Luck for a hand
injury on or around the date of the murder. Luck did not explain how exactly the
doctor’s testimony would be relevant, let alone how it would have bolstered her
defense. Reviewing Luck’s claim, the Ohio Supreme Court found that Luck was
“obviously prejudiced by not being able to seek verification of her story from [her
friend] and thereby establish mitigating factors or a defense to the charge against
her.” Id. at 158. When the court reiterated the relevant standard in Jones, it looked
to Luck, stating that Luck suffered actual prejudice “although there was no record
establishing what the witness would have actually testified to.” State v. Jones, 148
Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 25.
{¶ 45} Unlike Luck, Jenkins is able to point to specific evidence in the record
requiring a conclusion that Polivka’s testimony would not only be relevant, it would
minimize or eliminate the impact of the state’s evidence and bolster Jenkins’s
defense. Where Luck’s claim of actual prejudice was based on her unsupported
assertions that the missing witnesses’ testimony would have been helpful to her at
trial, Jenkins’s claim of actual prejudice is supported by evidence in the record,
including the victim’s own testimony. It is undisputed that Polivka was with the
victim and defendants on the night of the incident. Evidence in the record, such as
the victim’s testimony and the hotel receipt, establishes that Polivka picked up the
victim, drove the victim and defendants to a hotel, and rented a room for the victim
and defendants.
{¶ 46} The Jones standard makes clear that a defendant’s arguments in
support of an actual prejudice claim cannot be based on “mere speculation” because
the theoretical possibility of lost evidence is insufficient to establish actual prejudice.
Id. at ¶ 27. In cases in which the defendant’s claims regarding lost evidence or
unavailable witnesses are entirely unsupported by the record, this court has
correctly found that those claims are too remote and speculative to establish actual
prejudice. State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, ¶ 25.
We reiterate, however, that this is not a case where Jenkins’s actual prejudice is
based on unfounded or entirely speculative claims. Jenkins does not assert, and
there is no way of knowing, what exactly Polivka would have testified to at trial. Like
Luck, though, Jenkins has clearly shown that he was prejudiced because he was
unable to seek verification of his recollection of events from someone who was with
him on the night of the incident. Luck had nothing but her word to support her
claim that one of the unavailable witnesses was present for the murder and therefore
would have had relevant testimony. Jenkins, however, has pointed to evidence in
the record, including the victim’s own testimony, showing that Polivka was present
when the victim first encountered the defendants, drove them around, and
ultimately rented the hotel room where the alleged rape took place. Thus, while
Polivka of course would not have been able to testify as to whether the sexual
encounter was consensual, he would have been able to provide essential testimony
as to his impression of the victim throughout the entire hours-long encounter, his
relationship with the defendants, the nature of the interaction between the victim
and the defendants, and his reason for renting a hotel room for the victim and
defendants. Therefore, Jenkins’s claim that he suffered actual prejudice is
significantly stronger than Luck’s successful claim because it is corroborated by
documentary evidence and testimony in the record.
{¶ 47} In the instant case, Jenkins has repeatedly emphasized that not only
was Polivka present for at least part of the incident in question, Polivka could likely
have presented an account of the several hours of which the victim has no memory.
Polivka also could have testified as to how and why the victim got into his car in the
first place, as well as why he drove the victim and defendants to a hotel and rented
a room for them. In providing such an account, Polivka’s testimony would have
“minimized or eliminated the impact of the state’s evidence” by contradicting
significant aspects of the state’s key witness’s testimony and therefore undermining
the victim’s version of events. Polivka’s testimony likewise would have “bolstered
the defense” by verifying Jenkins’s account of events — that the sexual encounter
was consensual. With respect to consent, an essential element of the rape offense to
be established beyond a reasonable doubt, the state’s case rested entirely on the
victim’s own testimony. Any evidence that could have undermined the victim’s
credibility at trial would have had an impact on the outcome of this case. It is not
for this court to determine whether such missing or unavailable evidence would have
resulted in a not guilty verdict at trial. We are instead tasked with determining
whether the evidence would “minimize or eliminate the impact of the state’s
evidence and bolster the defense.” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-
5105, 69 N.E.3d 688, ¶ 28. Applying this standard to the facts of this case, I believe
it is clear that Jenkins has established actual prejudice. For these reasons, I agree
with the majority’s conclusion that Jenkins satisfied the first prong of preindictment
delay by establishing that he suffered actual prejudice.
{¶ 48} I disagree, however, with the majority opinion’s conclusion that we
are precluded from determining whether the state has established a justifiable
reason for the delay, and its subsequent conclusion that a remand is required for the
trial court to conduct an additional review of this issue.
{¶ 49} In this case, we are reviewing the trial court’s decision on a motion to
dismiss for preindictment delay. This court applies a de novo standard of review to
a trial court’s decision regarding legal issues in a motion to dismiss for
preindictment delay. State v. Jabbar, 8th Dist. Cuyahoga No. 109642, 2021-Ohio-
1191, ¶ 19, citing State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-
Ohio-5519, ¶ 12, citing State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951
N.E.2d 814 (12th Dist.). “‘De novo review requires an independent review of the trial
court’s decision without any deference to the trial court’s determination.’” Id.,quoting State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. Here, as
the majority notes, the trial court incorrectly determined that Jenkins had not
suffered actual prejudice. Based on this incorrect conclusion, the trial court’s
analysis did not include a determination as to whether the state’s delay was
justifiable. This court’s review, however, necessarily encompasses both prongs of
the preindictment-delay analysis. In deciding the motion to dismiss, the trial court
heard evidence and arguments as to both prongs of preindictment delay. Our review
of the trial court’s decision, therefore, can and should address both prongs of
preindictment delay. For these reasons, I do not believe that it is necessary to
remand the case for the trial court to address the second prong.
{¶ 50} Because I believe that our review in this case encompasses both
prongs of the preindictment-delay analysis, I would find that with respect to the
second prong, the state was unable to explain, let alone justify the delay in this case.
The state asserts that the reasons for the nearly 20-year delay were “investigative.”
Nevertheless, the state does not dispute that between 1994, when the men in this
case were identified and arrested in the hotel room in which the alleged rape took
place, and 2012, when the victim’s rape kit was tested for DNA, no investigation took
place. Likewise, it is undisputed that no investigation took place despite authorities
having collected physical evidence, identifying and arresting the men, and
identifying a critical witness within hours of the incident. This was not a cold case,
in which an unknown perpetrator committed a crime and the state had no
investigative leads or physical evidence connecting the crime to a suspect. The state
had ample physical evidence and had both men in custody for several days
immediately following the incident and then chose to release them and not pursue
the case, doing nothing for nearly 20 years.
{¶ 51} Additionally, I am not persuaded by the state’s assertion that the
Cleveland Police Department “did not do DNA testing” in 1994. There is a
significant difference between arguing that DNA testing did not exist or was
unavailable and arguing that it was simply not done. Further, unlike cases in which
the suspect’s identity is unknown, it is unclear exactly why the DNA testing done in
this case was as critical as the state seems to imply, given that the young men were
found sound asleep in the hotel room, arrested, and kept in police custody for days
before they were released and the investigation ceased. Even if the DNA testing was
critical, however, this only supports a conclusion that the delay in this case was the
result of negligence or error in judgment. Rather than testing the victim’s rape kit
in 1994 to obtain this critical evidence, the state elected to close the investigation in
the case entirely.
{¶ 52} Finally, to the extent that the state argues that the delay was, at least
in part, a result of J.R.’s unwillingness to cooperate, a review of the record easily
contradicts this argument. I acknowledge that J.R. did not choose to pursue the
matter. If the reason for closing the investigation in 1994 was because the victim
expressed a desire not to pursue the case, however, the state seems to have entirely
disregarded this desire in 2012 when it decided to reopen the investigation without
any input from the victim, let alone any indication that she had a change of heart as
to whether or not to pursue the matter 18 years later. For these reasons, I would
find that the state has not satisfied its burden of showing that the preindictment
delay in this case was justifiable. Additionally, I would note that Jenkins, the state
of Ohio, and the alleged victim in this case are all entitled to some measure of
finality, and this will not be achieved by ordering yet another remand.
{¶ 53} Therefore, I would find that the trial court erred in denying Jenkins’s
motion to dismiss for preindictment delay and in reinstating his conviction. I would
accordingly reverse the judgment of the trial court and vacate Jenkins’s convictions.
For these reasons, I respectfully concur in part and dissent in part.
SEAN C. GALLAGHER, A.J., DISSENTING:
{¶ 54} I respectfully dissent from the majority’s conclusion that Jenkins and
Dickerson were prejudiced by the preindictment death of Polivka. I understand the
majority’s decision, but I come to a different conclusion as I did in my separate
concurring opinion in State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216 (8th Dist.)
(“Jenkins II”), which referenced the dissent in State v. Dickerson, 8th Dist.
Cuyahoga No. 102461, 2017-Ohio-177 (“Dickerson II”), asserting that no prejudice
was shown in these cases. Although, in dicta, I disagreed with the Dickerson II
majority’s view that expressed prejudice was in play, I felt bound by the Dickerson
II opinion on the question of ineffective assistance of counsel. Thus, I concurred
with the outcome in Jenkins II.
{¶ 55} In my view, these cases underscore an argument that the standard for
determining prejudice outlined in State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, ¶ 100, and State v. Luck, 15 Ohio St.3d 150, 157-158, 472 N.E.2d
1097 (1984), are at times unworkable and invite inconsistent outcomes. This view
is particularly prevalent in cases where the identity of the offender was known at the
time of the alleged crime and no prosecution was initiated. Those circumstances
seem to cause the factual analysis on prejudice to take on a different and murky
context.
{¶ 56} In the present case, Polivka was not present during the commission
of the rapes committed by the then 21- and 22-year-old men against the 16-year-old
victim. And even if Polivka possessed exculpatory evidence, a speculative fact yet to
be established, Polivka’s death precluded his being named as a codefendant for his
conspiratorial conduct underlying the kidnapping convictions. In the appropriate
parlance, Polivka was not available to testify before the preindictment delay so that
his death was not the cause of his unavailability at trial. It is well settled that the
defendant must not only show the exculpatory nature of the missing evidence, but
must also demonstrate that the witness would have been available to testify but for
the preindictment delay. See, e.g., United States v. Bouthot, 685 F.Supp. 286, 298
(D.Mass.1988) (defendant failed to establish that the codefendant would have
testified at trial, and therefore, failed to show prejudice from the codefendant’s
unavailability); United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir.1994) (noting
in overruling the claim of preindictment delay that the defendant failed to prove that
the codefendant would have testified at the defendant’s trial).
{¶ 57} There are only three factual scenarios here: (1) Polivka would have
been indicted as a codefendant for his aiding Jenkins and Dickerson in the
kidnapping of the victim, and therefore Polivka was not “available” to testify just as
neither Jenkins nor Dickerson was available to testify at the other’s trial through the
assertion of their Fifth Amendment rights; (2) Polivka could provide exculpatory
evidence on the kidnapping charge in the attempt to avoid prosecution for his
involvement, the same as Jenkins and Dickerson could provide for each other, but
Polivka cannot testify to any events during the rapes; or (3) Polivka had
incriminating information to be offered in exchange for a plea in which case his
unavailability benefited Jenkins and Dickerson. Importantly, none of those
scenarios entitle Jenkins or Dickerson to a dismissal for preindictment delay.
{¶ 58} The majority maintains that Polivka’s status as a codefendant should
not preclude a finding of prejudice because
we are aware of no case in which a defendant is required to show not
only that a deceased witness would provide relevant testimony that
would minimize the impact of the state’s case, but also that the witness
would be able to overcome any alleged procedural barriers to testifying
on the defendant’s behalf.
State v. Dickerson, 8th Dist. Cuyahoga No. 109434, ¶ 25; but see Bouthot at 298;
Stierwalt at 285; United States v. Hofstetter, E.D.Tenn. No. 3:15-CR-27-TAV-CCS,
2018 U.S. Dist. LEXIS 59058, at 11 (Jan. 3, 2018) (the codefendant’s unavailability
was not prejudicial since the defendant could call the remaining codefendants to
confirm his story); State v. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483,
¶ 25 (evidence was not available immediately after the crime and, therefore, could
not constitute prejudice under the preindictment-delay analysis). Thus, I cannot
agree with the majority that Dickerson demonstrated prejudice because he was
“unable to seek verification of his story from someone who was with him on the night
of the incident.”
{¶ 59} Under the majority’s proposition, that a codefendant’s reluctance to
testify is not considered, Polivka’s unavailability is immaterial. Jenkins and
Dickerson could provide the missing testimony since both were undisputedly
present during the entire criminal event — more so than Polivka, who was not
present during the actual commission of the crime for which Dickerson and Jenkins
were convicted. See, e.g., Hofstetter (the codefendant’s unavailability was not
prejudicial since the defendant could rely on the remaining codefendants to confirm
his story). According to the majority’s rationale, Dickerson and Jenkins have
someone who was present to seek verification of their stories despite Polivka’s death.
Id.{¶ 60} Since the majority’s analysis depends on the fact that the state may
not rely on the witness’s status as a codefendant to establish the unavailability of the
testimony before the delay, then fairness and every other notion of due process
dictate that Jenkins and Dickerson cannot hide behind their status as codefendants
to provide Polivka’s missing testimony for each other. The death of a witness
constitutes prejudice only “‘if the defendant can identify exculpatory evidence that
was lost and show that the exculpatory evidence could not be obtained by other
means.’” State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 26,
quoting State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 103;
Hofstetter. Jenkins and Dickerson have not met their burden to demonstrate that
Polivka’s testimony would have aided their defenses, even if we ignore the fact that
Jenkins and Dickerson could provide each other the missing evidence. Dickerson II
at ¶ 73 (Stewart, J., dissenting).
{¶ 61} There is no additional burden here. All defendants claiming
preindictment delay must demonstrate that the testimony or evidence would have
been available at an earlier trial and are unavailable solely based on the
preindictment delay. Danzy, 8th Dist. Cuyahoga No. 109433, 2021-Ohio-1483, at
¶ 25. This necessarily means that if a codefendant is deceased or unavailable
through the passage of time, the defendant asserting preindictment delay must
demonstrate that a codefendant would have testified at the other’s trial or that no
other codefendant could offer the same evidence. Bouthot; Hofstetter; Stierwalt.
Jenkins and Dickerson’s claims both fail here because each could have provided the
other the same evidence Polivka could have offered and his credibility was no better
given his involvement in the kidnapping.
{¶ 62} Although I disagree that a remand is necessary in this case, the lead
opinion’s remand to permit the trial court to review the second prong of the
prejudice analysis is the correct course of action. Nevertheless, I dissent from the
majority’s decision to reverse. I would affirm the trial court in every respect.