State v. Bourn, 2019 Ohio 2327

In 2005 N.J. alleged two rapes by Melvin Bourn; one incident on April 13, 2005 is at issue here. A rape kit was collected at the time.
The rape kit remained untested in police backlog; it was sent to BCI in 2013, matched to Bourn in 2015, and the match was confirmed in 2017. Bourn’s DNA was in CODIS since 2002.
Bourn was indicted in 2017; he moved to dismiss for prejudicial preindictment delay. The trial court initially dismissed counts from the January 2005 incident, then, on reconsideration and relying on State v. Kafantaris, dismissed the April 13, 2005 counts as well.
The trial court found evidentiary loss and witness unavailability (missing original file, deceased officer, unavailable phone records, closed bar) materially prejudiced Bourn’s defense, analogous to Kafantaris.
The State appealed, arguing Bourn failed to show actual prejudice from the delay and that the delay was justifiable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether preindictment delay violated due process	State: Defendant cannot show actual prejudice from delay; missing evidence is speculative	Bourn: Lost phone records, missing file, deceased officer, closed bar and delayed DNA testing caused actual prejudice	Court: Dismissal affirmed — actual prejudice shown; state failed to justify delay
Whether DNA evidence constituted "new" evidence justifying delay	State: DNA match in 2015/2017 is new and supports prosecution despite delay	Bourn: DNA existed in kit in 2005 and his CODIS entry since 2002; kit could have been tested earlier	Court: DNA testing later did not create new evidence; same evidentiary basis existed in 2005
Whether loss of phone records and investigative file was materially prejudicial	State: Possibility of faded memory or missing items is common to delays and insufficient	Bourn: Phone records would corroborate his account and undermine victim credibility; their loss is material	Court: Loss of records and file can minimize or eliminate state's evidence impact; found materially prejudicial
Whether state’s delay was justifiable	State: Must proceed cautiously before indicting; backlog initiatives explain timeline	Bourn: Long delay and failure to test kit earlier was negligent and ceased active investigation	Court: Delay unjustified; backlog and late testing did not excuse lapse when evidence could have identified defendant earlier

State v. Kafantaris, 110 N.E.3d 793 (Ohio App. 2018) (dismissal for prejudicial preindictment delay where lost files, untested kit, and available identifying information existed earlier)
State v. Jones, 69 N.E.3d 688 (Ohio 2016) (preindictment delay violates due process only when unjustifiable and causes actual prejudice)
State v. Whiting, 702 N.E.2d 1199 (Ohio 1998) (burden-shifting framework: defendant first shows actual prejudice, then state must justify delay)
State v. Walls, 775 N.E.2d 829 (Ohio 2002) (actual prejudice determination is fact-specific and requires delicate judgment)
United States v. Marion, 404 U.S. 307 (U.S. 1971) (mere possibility of faded memories is insufficient; delay unjustifiable if investigation effectively ceased)
State v. Luck, 472 N.E.2d 1097 (Ohio 1984) (lost witnesses, fading memories, and lost evidence can constitute actual prejudice)
State v. Powell, 61 N.E.3d 789 (Ohio App. 2016) (state’s negligence or cessation of active investigation can render delay unjustifiable)
State v. Adams, 45 N.E.3d 127 (Ohio 2015) (possibility of lost memories or witnesses is not alone sufficient; requires case-by-case analysis)