STATE OF OHIO, Plaintiff-Appellee, vs. DAMON BUSH, Defendant-Appellant.
APPEAL NO. C-190094
TRIAL NO. B-1605477
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 31, 2020
[Cite as State v. Bush, 2020-Ohio-1229.]
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 31, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant.
{¶1} Damon Bush appeals the judgment of thе Hamilton County Common Pleas Court convicting him of nonsupport of dependents, in violation of
I. Background
{¶2} On October 19, 2016, Bush was indicted on one count of nonsupport. He was arrested approximately 21 1/2 months later on August 3, 2018. Four months after his arrest, on Decembеr 4, 2018, Bush filed a motion to dismiss the indictment on the ground that his right to a speedy trial had been violated. At a hearing on Bush‘s motion, Margie Priestle, an investigator in the Hamilton County Prosecutor‘s Office, testified that her job is to locate individuals who have been indicted for felony nonsupport and provide that information to the sheriff‘s office. To ascertain a defendant‘s address, she interviews witnesses and researches various databases.
{¶3} Priestle testified that in addition to the felony nonsupport warrant, Bush had four outstanding arrest warrants for contempt on child-support cases dating back to 2013, but sheriff‘s deputies had been unable to locate him. Her research revealed that on three occasions that predated the outstanding contempt and felony warrants, Bush had been arrested and processed at the Hamilton County Justice Center. In 2003 and in 2005, Bush had provided 7248 Eastlawn Avenue as his address, and in 2012, he had provided 717 Mitchell Avenue as his address.
{¶4} Following her investigation, Priestle obtained what she believed to be a current address for Bush at 1867 Kinney Street and provided that address to the sheriff‘s office. She followed up on the address several times to see if it had changed, but nothing had changed from the initial information that she had sent to the sheriff‘s office.
{¶5} Hamilton County Sheriff‘s Deputy Ray Knight testified to the procedures that detectives in the Fugitive Warrant Section of the sheriff‘s
{¶6} Deputy Knight testified that, upon receiving the information from Priestle, he consulted the detectives’ notes in his unit‘s in-house warrant system to see if there was any useful informatiоn with regard to Bush. He noted that detectives who work on misdemeanor contempt warrants had already tried and failed to locate Bush at various addresses, including the Mitchell Avenue address, but not the Kinney Street address provided by Priestle. He said that the detectives had been to the Mitchell Avenue address five diffеrent times and had left notices for Bush. At that address, the detectives had spoken to Bush‘s father and brother, both of whom had reported that Bush did not live there.
{¶7} Deputy Knight testified that he did not try again to find Bush at the Mitchell Avenue address because he did not want to harass Bush‘s father who had already told detectives that Bush did not live there. So he went to the Kinney Avenue address that had been provided by Priestle to try to find Bush. When no one answered the door, Deputy Knight left a notice for Bush to contact detectives, but Bush never did. Other than Priestle‘s periodic follow-ups, no further action was taken to locate Bush before his arrest on August 3, 2018.
{¶8} Although in his written mоtion to dismiss Bush asserted that his address had not changed “in the past 15 years,” he did not specify what that address was, and he did not support that assertion with evidence at the hearing.1 At the
{¶9} At the conclusion of the hearing, the trial court noted that detectives had previously attempted to locate Bush at the Mitchell Avenue address, stating, “Because I assume that‘s the argument here is that he was actually residing at Mitchell Avenue on open warrants that were filed prior to this case being filed.” The court noted that detectives had been to that location repeatedly and that notices for Bush‘s misdemeanor warrants had been mailed to that address. The court noted that Bush‘s father and brother, who lived at the Mitchell Avenue address, had сonfirmed that Bush did not live there. Therefore, the court found that “[t]here was really no reason for the detectives in this case to go back to that address just to redo work that had already been done.”
{¶10} The trial court determined that the prosecutor‘s and sheriff‘s offices “did go to lengths to locate the defendant,” and that Bush had suffered no prejudice as a result of the delay between indictment and arrest because no evidence had been destroyed and no witnesses had disappeared. The court denied Bush‘s motion to dismiss and, after his no-contest plea, found him guilty of nonsupport.
II. Constitutional Right to a Speedy Trial
{¶11} In his only assignment of error, Bush argues that the trial court erred by denying his motion to dismiss. He contends that the 21 1/2-month delay between his indictment and arrest violated his constitutional right to a speedy trial. Our review of the trial court‘s decision involves a mixed question of law and fact. State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 15 (1st Dist.). Accordingly, we must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence, but we must independently review whether the court properly applied the law to the facts of the case. Id.
{¶12} A criminal defendant‘s right to a speedy trial is guaranteed by the
A. Barker Factors
{¶13} To determine whether a defendant has been deprived of her or his constitutional right to a speedy trial, a court must balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant‘s assertion of the right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Selvage, 80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997).
1. Length of Delay
{¶14} The length of delay operates as a “triggering mechanism.” Barker at 530. “Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. Courts have generally found delays of about one year to be presumptively prejudicial. Selvage at 468; Doggett at 652, fn. 1. Less delay will be tolerated for “ordinary strеet crime” than “for a serious, complex conspiracy charge.” Barker at 531. This court has held that a 14 1/2-month delay in prosecuting nonsupport-of-dependents charges, which were “low-level felonies,” was presumptively prejudicial for purposes of the first Barker factor. State v. Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, ¶ 10. Therefore, the delay of 21 1/2 months in this case is sufficiеnt to justify inquiry into the remaining Barker factors.
{¶15} Although the first factor technically weighs in Bush‘s favor, its weight is negligible because the “interests which the
2. Reason for the Delay
{¶16} The second Barker factor is “the reason the government assigns to justify the delay.” Barker, 407 U.S. at 531. Deliberate attempts to delay the trial must be weighed heavily against the state, while negligence or overcrowded dockets should be weighted less heavily. Id. Nothing in the record suggests-and Bush does not argue-that the delay was a deliberate attempt by the state to impede his defense.
{¶17} Here, the trial court reasonably could conclude that any further attempt to serve Bush at the Mitchell Avenue address would have been futile, given the numerous prior attempts and the insistence by family members that Bush did not live there. Even after an attempt to personally serve Bush at the Kinney Street address failed, Priestle had continued to periodically follow up to see if she could find a current address. Nevertheless, the ultimate responsibility for the delay rests with the state. Id. Therefore, this factor weighs slightly in Bush‘s favor.
3. Assertion of the Speedy-Trial Right
{¶18} “The third factor addresses the timeliness and frequency of the defendant‘s assertions of [the] speedy-trial right.” Rice, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 27. If a defendant sits on her or his speedy-trial rights, this factor weighs against the defendant. State v. Jackson, 2016-Ohio-5196, 68 N.E.3d 1278, ¶ 14 (1st Dist.). In this case, Bush waited four months after his arrest to file a motion to dismiss on spеedy-trial grounds. This factor weighs slightly in the state‘s favor. See
4. Prejudice Caused by the Delay
{¶19} Courts should assess prejudice in light of the interest which the right to a speedy trial was designed to protect, including (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532. Neither of the first two interests is implicated in this case because Bush was not incarcerated in the period between his indictment and arrest, and he did not assert that he suffered anxiety or concern during that period. In fact, he could not have suffered anxiety or concern because he did not know of the existence of the warrant.
{¶20} With respect to the third interest, Bush asserts that he does not need to demonstrate that he suffered actual prejudice because prejudice is presumed where the delаy exceeds one year. The presumptive prejudice to which he refers, however, “simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” Doggett, 505 U.S. at 652, fn. 1. That presumptive prejudice “cannot alone carry a
{¶21} Doggett reсognized that “pretrial delay is often both inevitable and wholly justifiable” because the state may need time to locate witnesses or to track down a defendant that goes into hiding. Id. If the state pursues a defendant with reasonable diligence from indictment to arrest, the defendant‘s speedy-trial claim would fаil no matter how long the delay, as long as the defendant could not show specific prejudice to her or his defense. Id. On the other hand, the defendant would
{¶22} In determining at what point prejudice is prеsumed so as to relieve the defendant of showing actual prejudice to her or his defense, courts focus on the culpability of the state in failing to bring the defendant to trial. Jackson, 2016-Ohio-5196, 68 N.E.3d 1278, at ¶ 18. On the spectrum “[b]etween diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupiеs the middle ground.” Doggett at 656-657. Where the state‘s conduct in bringing the defendant to trial is due to negligence, courts’ “toleration of such negligence varies inversely with its protractedness * * * and its consequent threat to the fairness of the accused‘s trial.” Id. at 657. Therefore, “to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice.” Id.
{¶23} In State v. Triplett, the Supreme Court of Ohio held that a 54-month delay between the indictment and arrest of a criminal defendant was not presumptively prejudicial where the defendant precipitated the dеlay by failing to claim certified mail informing her of her indictment. Triplett, 78 Ohio St.3d at 568, 679 N.E.2d 290. Even in cases where the state was largely responsible for the delay, this court has declined to find delays of under 18 months presumptively prejudicial under the fourth Barker factor so as to relieve the defendant of the burden of proving actual prejudicе. State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84 (an 18-month delay); State v. Rogers, 1st Dist. Hamilton No. C-180120, 2019-Ohio-1251 (a 15-month delay).
{¶24} “In aggravated cases involving excessive pretrial delay, prejudice may be presumed despite the defendant‘s inability to identify particular testimony or evidence that has become unavailable due to the passage of time.” Rice, 2015-Ohio-5481, 57 N.E.3d 84, at ¶ 28, citing Doggett at 655-656. In Doggett, the court determined that six years of an eight-and-a-half year delay between the defendant‘s
{¶25} In cases where the state has made little or no effort to notify a criminal defendant of a complaint or indictment, this court has held that the defendant is nоt required to show actual prejudice resulting from the delay between issuance of the complaints or warrants and arrest. State v. Sears, 166 Ohio App.3d 166, 2005-Ohio-5963, 849 N.E.2d 1060 (1st Dist.); State v. Jackson, 2016-Ohio-5196, 68 N.E.3d 1278 (1st Dist.). In Sears, this court presumed that a criminal defendant‘s defense was prejudiced by a delay of nine months where the state failed to make any attempt to notify the defendаnt of a misdemeanor assault complaint. Sears at ¶ 4 and 12. In Jackson, this court presumed prejudice from a four-year delay between the issuance of warrants and the defendant‘s arrest where, except for the one month following the issuance of the warrants, the state was not reasonably diligent in pursuing the charges against thе defendant. Jackson at ¶ 13 and 20.
{¶26} Similarly, in State v. Pierce, 1st Dist. Hamilton No. C-160699, 2017-Ohio-5791, this court held that where the state offered no evidence to explain a 14 1/2-month delay between an indictment and arrest on a felony nonsupport indictment, the defendant did not have to prove actual prejudice brought on by the delay. Because the state wholly failed to offer any evidence to explain the delay in arresting the defendant, we reversed the trial court‘s judgment overruling the defendant‘s motion to dismiss the indictment on speedy-trial grounds. Id. at ¶ 4 and 17-19.
{¶27} Here, the 21 1/2-month delay between Bush‘s indictment and arrest, while a little longer than the delays we found acceptable in Rice and Rogers, is significantly shorter than the eight-аnd-a-half-year delay that the United States
{¶28} Bush asserts for the first time on appeal that the delay of 21 1/2 months impaired his “ability to obtain his personal financial information” to raise an affirmative defense under
III. Conclusion
{¶29} The first and second Barker factors-the length of the delay and the reason for the delay-weigh slightly in Bush‘s favor. Howеver, the third and fourth factors-the assertion of the speedy-trial right and the lack of prejudice-weigh more decisively against him. Although the delay caused by the state‘s negligence in locating Bush was sufficient to trigger an analysis of the Barker factors, it was insufficient to relieve him of the duty to demonstrate that he was actuаlly prejudiced by the delay. Therefore, after weighing the Barker factors, we hold that Bush was not deprived of his constitutional right to a speedy trial. Consequently, the trial court did not err in denying his motion to dismiss. We overrule the sole assignment of error and affirm the trial court‘s judgment.
Judgment affirmed.
CROUSE, J., concurs.
ZAYAS, P.J., concurs in judgment only.
The court has recorded its own entry this date.