[Cite as State v. Evans, 2019-Ohio-13.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

JEFFREY A. EVANS 

Defendant-Appellant 

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Appellate Case No. 27881 

Trial Court Case No. 2016-CR-3718 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 4th day of January, 2019. 

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MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, 

Springboro, Ohio 45066 

 Attorney for Defendant-Appellant 

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WELBAUM, P.J. 
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{¶ 1} Defendant-appellant, Jeffrey A. Evans, appeals from his conviction in the 

Montgomery County Court of Common Pleas after he pled no contest to two counts of 

vehicular homicide and one count of failure to stop after an accident. In support of his 

appeal, Evans contends that the trial court erred in overruling his motion to dismiss the 

aforementioned charges. Evans also contends that his trial counsel provided ineffective 

assistance by failing to request an evidentiary hearing on the motion to dismiss. For the 

reasons outlined below, the judgment of the trial court will be affirmed. 

Facts and Course of Proceedings 

{¶ 2} On July 27, 2016, Evans was responsible for an automobile collision on 

Interstate 75 that killed another driver. Following the collision, Evans exited his vehicle 

and attempted to flee the scene of the accident on foot. Despite his efforts to flee, Evans 

was ultimately arrested by a City of Moraine police officer. Although Evans was released 

from custody two days after the collision, nearly a year later, on July 17, 2017, the 

Montgomery County Grand Jury returned an indictment charging him with one count of 

vehicular homicide (negligence) in violation of R.C. 2903.06(A)(3)(a), one count of 

vehicular homicide (proximate result) in violation of R.C. 2903.06(A)(4), and one count of 

failure to stop after an accident in violation of R.C. 4549.02(A) and (B)(3)(b). 

{¶ 3} Following his indictment, Evans entered a plea of not guilty and filed a motion 

to dismiss the charges. As part of his motion, Evans argued that the charge for failing to 

stop after an accident should be dismissed because the statute on which that charged 

was based, R.C. 4549.02, violated his Fifth Amendment right against self-incrimination. 
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Since he was indicted nearly one year after the collision, Evans also argued that all the 

charges against him should be dismissed on the basis of pre-indictment delay. Evans 

did not request an evidentiary hearing on his motion to dismiss and no such hearing was 

held before the trial court. 

{¶ 4} On November 9, 2017, after reviewing the parties’ written arguments, the trial 

court issued a decision and entry overruling Evans’s motion to dismiss. Evans thereafter 

entered a no contest plea to the indicted charges, each of which the trial court found him 

guilty of committing. The trial court then sentenced Evans to 180 days in jail and 

imposed community control sanctions. 

{¶ 5} Evans now appeals from his conviction, raising three assignments of error 

for review. 

First Assignment of Error 

{¶ 6} Evans’s First Assignment of Error is as follows: 

THE TRIAL COURT ERRED IN OVERRULING MR. EVANS’ MOTION TO 

DISMISS THE THIRD COUNT OF THE INDICTMENT [failing to stop after 

an accident] BASED ON THE UNCONSTITUTIONALITY OF R.C. 4549.02. 

{¶ 7} Under his First Assignment of Error, Evans contends that the trial court 

should have dismissed the charge for failing to stop after an accident because the statute 

on which that charge was based, R.C. 4549.02, violates his Fifth Amendment right against 

self-incrimination. We disagree with Evans’s claim. 

{¶ 8} “The Fifth Amendment states that ‘[n]o person * * * shall be compelled in any 

criminal case to be a witness against himself.’ ” Hiibel v. Sixth Judicial Dist. Ct. of Nev., 
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542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). “To qualify for the Fifth 

Amendment privilege, a communication must be testimonial, incriminating, and 

compelled.” Id., citing United States v. Hubbell, 530 U.S. 27, 34-38, 120 S.Ct. 2037, 147 

L.Ed.2d 24 (2000). 

{¶ 9} Evans claims that R.C. 4549.02 violates his Fifth Amendment right against 

self-incrimination because it compels him to provide information that assists the State in 

establishing a violation of R.C. 4549.02. Pursuant to that statute: 

In the case of a motor vehicle accident or collision with persons or property 

on a public road or highway, the operator of the motor vehicle, having 

knowledge of the accident or collision, immediately shall stop the operator's 

motor vehicle at the scene of the accident or collision. The operator shall 

remain at the scene of the accident or collision until the operator has given 

the operator’s name and address and, if the operator is not the owner, the 

name and address of the owner of that motor vehicle, together with the 

registered number of that motor vehicle, to all of the following: 

(a) Any person injured in the accident or collision; 

(b) The operator, occupant, owner, or attendant of any motor vehicle 

damaged in the accident or collision; 

(c) The police officer at the scene of the accident or collision. 

R.C. 4549.02(A)(1). 

{¶ 10} Therefore, as noted by the Supreme Court of Ohio, “R.C. 4549.02 requires 

a driver involved in a collision on a public street to stay at the scene until he or she has 

given his or her name, address, and registration number to the other driver, to any injured 
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party, or to a police officer.” State v. Williams, 79 Ohio St.3d 1, 14, 679 N.E.2d 646 

(1997). A person who fails to do so is guilty of failure to stop after an accident. R.C. 

4549.02(B)(1). 

{¶ 11} In California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), 

the United States Supreme Court specifically reviewed whether the Fifth Amendment 

privilege against self-incrimination was infringed by a California statute that required the 

driver of a motor vehicle involved in an accident to stop at the scene and give his or her 

name and address. Id. at 425. Similar to R.C. 4549.02(A), the California statute 

provided as follows: 

“The driver of any vehicle involved in an accident resulting in damage to any 

property including vehicles shall immediately stop the vehicle at the scene 

of the accident and shall then and there * * * (l)ocate and notify the owner 

or person in charge of such property of the name and address of the driver 

and owner of the vehicle involved[.]” 

Byers at 426, quoting California Vehicle Code § 20002(a)(1). 

{¶ 12} Upon reviewing the California statute, the United States Supreme Court 

held that the compelled disclosure of the driver’s identity and address did not violate the 

privilege against self-incrimination even though it might lead to an inquiry that results in 

criminal charges. Id. at 434. In so holding, the court found that “[s]topping in 

compliance with [the California statute] * * * does not provide the State with ‘evidence of 

a testimonial or communicative nature’ within the meaning of the Constitution.” Id. at 

432, quoting, Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 

(1966). The court additionally found that “[d]isclosure of name and address is an 
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essentially neutral act” and “[w]hatever the collateral consequences of disclosing name 

and address, the statutory purpose is to implement the state police power to regulate use 

of motor vehicles.” Id. 

{¶ 13} The court in Byers further stated that: 

Although identity, when made known, may lead to inquiry that in turn leads 

to arrest and charge, those developments depend on different factors and 

independent evidence. Here the compelled disclosure of identity could 

have led to a charge that might not have been made had the driver fled the 

scene; but this is true only in the same sense that a taxpayer can be charged 

on the basis of the contents of a tax return or failure to file an income tax 

form. There is no constitutional right to refuse to file an income tax return 

or to flee the scene of an accident in order to avoid the possibility of legal 

involvement. 

Byers at 434. See also Moore v. State, 12 Ohio Law Abs. 92 (2d Dist.1931) (upholding 

the constitutionality of former Ohio General Code §12606, which required the operator of 

a motor vehicle involved in an accident to stop and give his or her name and address). 

{¶ 14} Based on the United States Supreme Court’s holding in Byers, we do not 

find that the requirements in R.C. 4549.02(A) violate the Fifth Amendment privilege 

against self-incrimination. While R.C. 4549.02(A) requires the operator of a motor 

vehicle involved in an accident to remain at the scene and to provide his or her name and 

address, it does not require the individual to state a cause of the accident or to claim 

responsibility for the accident. As noted in Byers, it would be “an extravagant extension 

of the privilege” to hold that the neutral act of disclosing one’s name and address is 
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“testimonial in the Fifth Amendment sense.” Byers at paragraph two of the syllabus. 

Therefore, because providing one’s name and address at the scene of an accident is not 

testimonial in nature, the Fifth Amendment privilege against self-incrimination simply does 

not apply. 

{¶ 15} Evans’s First Assignment of Error is overruled. 

Second Assignment of Error 

{¶ 16} Evans’s Second Assignment of Error is as follows: 

THE TRIAL COURT ERRED IN OVERRULING MR. EVANS’ MOTION TO 

DISMISS BASED ON PRE-INDICTMENT DELAY. 

{¶ 17} Under his Second Assignment of Error, Evans challenges the trial court’s 

decision overruling his motion to dismiss based on his claim of pre-indictment delay. 

Evans contends that the trial court’s ruling was in error because the trial court failed to 

hold an evidentiary hearing on the issue of whether Evans suffered actual prejudice from 

the pre-indictment delay. According to Evans, the trial court’s failure to hold an 

evidentiary hearing violated due process and warrants reversing and remanding the 

matter for purposes of holding such a hearing. We again disagree with Evans’s claim. 

{¶ 18} It is well established that “[d]elay between a defendant’s involvement in 

alleged criminal conduct and an indictment involving such conduct may deprive a 

defendant of his constitutionally protected due process rights.” State v. Moore, 2017-

Ohio-1307, 88 N.E.3d 593, ¶ 24 (2d Dist.), citing State v. Luck, 15 Ohio St.3d 150, 472 

N.E.2d 1097 (1984), paragraph two of the syllabus. However, “preindictment delay 

violates due process only when it is unjustifiable and causes actual prejudice[.]” State v. 
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Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. Therefore, “[w]hen a 

defendant alleges that he has been prejudiced by the State’s pre-indictment delay in 

pursuing a case, the defendant must first produce evidence demonstrating that the delay 

has caused actual prejudice to his defense.” State v. Shoopman, 2d Dist. Montgomery 

No. 27182, 2017-Ohio-2612, ¶ 8, citing Luck at 157-158. “Then, if the defendant has 

established actual prejudice, the State must produce evidence of a justifiable reason for 

the delay.” Id., citing Luck at 158. 

{¶ 19} “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 Luck at 

157-158. “A determination of actual prejudice involves ‘ “a delicate judgment” ’ and a 

case-by-case consideration of the particular circumstances.” Id. at ¶ 20, quoting State 

v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting United 

States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). “A reviewing 

court must scrutinize a defendant’s claim of prejudice in light of the particular evidence 

that was lost or is unavailable as a result of the delay and, in particular, consider the effect 

of the lost evidence on the defense[.]” Shoopman at ¶ 9, citing Jones at ¶ 23. 

{¶ 20} “General assertions that memories have faded are not sufficient to satisfy a 

defendant’s burden to demonstrate that he suffered specific, actual prejudice.” State v. 

Conley, 2d Dist. Clark No. 01-CA-0013, 2001 WL 958834, *2 (Aug. 24, 2001). Accord 

Shoopman at ¶ 9; Jones at ¶ 21, 27. See also Miamisburg v. Rinderle, 2d Dist. 

Montgomery No. 26094, 2015-Ohio-351, ¶ 17 (holding the defendant’s broad assertion 

of fading memories, although potentially true, was not sufficient to establish actual 
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prejudice because the defendant did not identify any particular memory at issue or explain 

how the fading memories prejudiced him). “That does not mean, however, that 

demonstrably faded memories * * * cannot satisfy the actual-prejudice requirement.” 

(Emphasis added.) Jones at ¶ 21. 

{¶ 21} Anxiety stemming from the concern that one could face criminal charges is 

also insufficient to support a finding of actual prejudice. State v. Weiser, 10th Dist. 

Franklin No. 03AP-95, 2003-Ohio-7034, ¶ 34 (finding defendant’s claim of anxiety was 

insufficient to establish actual prejudice because it stemmed from the fact that he was 

facing charges, not from the delay between the incident and his indictment). See also 

State v. Glass, 10th Dist. Franklin No. 10AP-558, 2011-Ohio-6287, ¶ 26 (“although facing 

criminal charges for an extended period of time necessarily entails some level of anxiety 

and concern, appellant’s bare allegation of anxiety and concern presents no particular 

reason for this factor to weigh heavily in our consideration”); State v. Eicher, 8th Dist. 

Cuyahoga No. 89161, 2007-Ohio-6813, ¶ 33 (holding that defendant’s blanket statement 

that she suffered anxiety during her four and a half month pre-trial detention was 

insufficient to establish prejudice with regards to speedy trial rights). 

{¶ 22} With regard to an evidentiary hearing, this court has held that a trial court 

does not have a “per se duty” to hold an evidentiary hearing on the issue of whether actual 

prejudice resulted from pre-indictment delay when the parties did not request a hearing, 

but instead, elected to proceed on their written arguments. State v. Buis, 2018-Ohio1727, 111 N.E.3d 854, ¶ 6 (2d Dist.). Although an evidentiary hearing is not required, 

“where the claims in a motion to dismiss would justify relief and are supported by factual 

allegations, the court abuses its discretion when it grants or denies the motion without a 
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hearing.” State v. Dillon, 181 Ohio App.3d 69, 2009-Ohio-530, 907 N.E.2d 1226, ¶ 17 

(2d Dist.). 

{¶ 23} This court has held that a hearing may be proper under circumstances 

where a defendant asserted in his motion that prejudice existed because his memory had 

faded, he was unable to locate witnesses, and the victim’s credibility was suspect. Buis

at ¶ 7, citing State v. Dixon, 8th Dist. Cuyahoga No. 100332, 2014-Ohio-2185, ¶ 11. 

Specifically, this court found that a hearing on such claims “may have been proper to test 

the defendant’s memory and to explore his claim about locating witnesses and the victim’s 

credibility.” (Emphasis added.) Id. 

{¶ 24} In this case, Evans claimed in his motion to dismiss that the pre-indictment 

delay of nearly one year prejudiced him because it subjected him to “great anxiety.” 

Evans also claimed the pre-indictment delay caused him and the witnesses to suffer from 

“diminished and fading memories” that impaired his defense. Evans, however, failed to 

request an evidentiary hearing on these claims and failed to provide any specific factual 

allegations supporting the claims. For example, Evans did not indicate which witnesses 

suffered from faded memories, what information may have been lost as a result of the 

faded memories, or how the faded memories impaired his defense. Instead, Evans 

broadly asserted that his memories and the memories of the witnesses had faded due to 

the pre-indictment delay. Since Evans did not specify what witnesses and information 

became unavailable or indicate what evidence was lost as a result of the delay, it was 

reasonable for the trial court not to hold an evidentiary hearing. Evans’s alleged anxiety 

is inapposite because said anxiety stemmed from the possibility that he faced criminal 

charges, not from the actual pre-indictment delay. 
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{¶ 25} Because Evans failed to request an evidentiary hearing on his motion to 

dismiss and because his motion to dismiss only raised generalized claims of anxiety and 

potential faded memories without any supporting factual allegations, the trial court did not 

abuse its discretion in failing to hold an evidentiary hearing on the issue of whether Evans 

suffered actual prejudice as a result of the pre-indictment delay. 

{¶ 26} Evans’s Second Assignment of Error is overruled. 

Third Assignment of Error 

{¶ 27} Evans’s Third Assignment of Error is as follows: 

MR. EVANS WAS DENIED HIS CONSTITUTIONALLY GUARANTEED 

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL 

COUNSEL FAILED TO REQUEST AN EVIDENTIARY HEARING TO 

PURS[U]E HIS CLAIM OF PRE-INDICTMENT DELAY. 

{¶ 28} Under his Third Assignment of Error, Evans contends that his trial counsel 

provided ineffective assistance by failing to request an evidentiary hearing on the issue 

of whether he suffered actual prejudice from the pre-indictment delay. We disagree with 

Evans’s claim. 

{¶ 29} In order to succeed on an ineffective assistance claim, a defendant must 

establish: (1) his trial counsel’s performance was deficient; and (2) the deficient 

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 

80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 

136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. The failure to make a 

showing of either deficient performance or prejudice defeats a claim of ineffective 
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assistance of counsel. Strickland at 697. 

{¶ 30} To establish deficient performance, a defendant must show that his trial 

counsel’s performance fell below an objective standard of reasonable representation. Id. 

at 688; Bradley at 142. In evaluating counsel’s performance, a reviewing court “must 

indulge in a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland at 689. 

{¶ 31} To establish prejudice, a defendant must show that there is “a reasonable 

probability that, but for counsel’s errors, the proceeding’s result would have been 

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, 

citing Strickland at 687-688; Bradley at paragraph two of the syllabus. “ ‘A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.’ ” Bradley

at 142, quoting Strickland at 694. 

{¶ 32} In this case, even if we were to find that Evans’s trial counsel performed 

deficiently by failing to request an evidentiary hearing, Evans has not established that he 

was prejudiced by counsel’s failure. Specifically, Evans did not demonstrate that there 

is a reasonable probability that the outcome of his case would have been different had 

his trial counsel requested an evidentiary hearing. This is because there is no guarantee 

that the trial court would have granted a request for an evidentiary hearing. As previously 

noted, trial courts do not have a “per se duty” to hold evidentiary hearings on the issue of 

pre-indictment delay. Buis, 2d Dist. Montgomery No. 27778, 2018-Ohio-1727 at ¶ 6. 

{¶ 33} Further, if an evidentiary hearing had been granted in this case, it is unlikely 

that the trial court would have thereafter granted Evans’s motion to dismiss on the basis 

of pre-indictment delay. As previously noted, the broad claims in Evans’s motion to 
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dismiss were insufficient to establish actual prejudice resulting from the pre-indictment 

delay. Evans also did not indicate in his motion or in his appellate brief what evidence 

he would have presented at an evidentiary hearing that would have caused the trial court 

to rule in his favor. Therefore, Evans has failed to demonstrate that an evidentiary 

hearing would have resulted in the trial court’s granting his motion to dismiss. 

Accordingly, Evans’s ineffective assistance claim lacks merit because he has not 

established any prejudice arising from trial counsel’s failure to request an evidentiary 

hearing. 

{¶ 34} Evans’s Third Assignment of Error is overruled. 

Conclusion 

{¶ 35} Having overruled all assignments of error raised by Evans, the judgment of 

the trial court is affirmed. 

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FROELICH, J. and TUCKER, J., concur. 

Copies sent to: 

Mathias H. Heck, Jr. 

Michael P. Allen 

Marshall G. Lachman 

Hon. Gregory F. Singer