[Cite as State v. Smith, 2016-Ohio-7893.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 104203

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ANTHONY SMITH

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-586653-A 

BEFORE: McCormack, J., Keough, P.J., and E.A. Gallagher, J. 

RELEASED AND JOURNALIZED: November 23, 2016 
ATTORNEY FOR APPELLANT

Steven J. Moody 

3751 Prospect Ave., 3d Floor 

Cleveland, OH 44115 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Denise J. Salerno 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
TIM McCORMACK, J.: 

{¶1} Defendant-appellant Anthony Smith appeals from his conviction for rape, 

kidnapping, and aggravated burglary. For the reasons that follow, we affirm. 

{¶2} On June 19, 2014, Smith was indicted on charges of rape, kidnapping, and 

aggravated burglary, which stemmed from an incident that occurred approximately 19 

years earlier, on October 18, 1995. Smith filed a motion to dismiss the indictment, 

claiming due process and speedy trial violations.1

 The state opposed the motion and 

requested a hearing. Thereafter, the court held a hearing on the motion. 

{¶3} At the hearing, the state presented the following: the original police report 

in this matter; a CODIS Match Memorandum from the Bureau of Criminal Investigation 

(“BCI”); notification from the forensic lab concerning fingerprint identification; and the 

testimony of Sahir Hasan, former detective with the Cleveland police department and 

current investigator with the Cuyahoga County Prosecutor’s Office Cold Case CODIS 

Unit. Investigator Hasan is part of the Sexual Assault Kit (“SAK”) unit. 

 1

 Smith alleges in his motion to dismiss that the 19-year delay between the alleged offense 

and the indictment was a due process violation, based upon preindictment delay, and it violated his 

speedy trial rights. However, the trial court declined to analyze Smith’s speedy trial claim, noting 

that Smith was not the subject of an official prosecution during the delay between the alleged offenses 

and the filing of the indictment and Smith’s speedy trial argument was “part and parcel” of his 

preindictment delay argument. Likewise, on appeal, Smith makes no separate argument for a speedy 

trial violation. Rather, his claim on appeal is based solely on preindictment delay. We therefore 

decline to address Smith’s speedy trial rights in this appeal, as well. 
{¶4} According to the original police report, N.R. was home alone when a male, 

who was a stranger to N.R., knocked on her door and expressed an interest in renting an 

apartment in her building. N.R. assisted the male in obtaining the landlord’s 

information. Thereafter, the male asked to use N.R.’s restroom, and she obliged. The 

male used the restroom and then asked N.R. for something to drink. N.R. gave him a 

glass of grape juice. After obtaining the glass of grape juice, the male grabbed a steak 

knife and held it to N.R.’s neck. He then forced her into her bedroom, where he 

removed N.R.’s clothing. The male punched N.R. several times, cut her wrist with the 

knife, and attempted to gag her with a scarf. The male raped N.R., placed the knife and 

the scarf in his jacket, and left the scene. N.R. screamed for help once the male left. 

N.R. reported the rape to the police, and she went to the hospital, where a rape kit was 

completed. 

{¶5} Investigator Hasan testified that his duties as investigator included 

reviewing original documents and police reports in this case. In the course of his 

review, Investigator Hasan learned that on October 18, 1995, N.R. reported that she had 

been raped in her home at approximately 9:30 a.m. He noted that no suspect had been 

identified in the case; however, fingerprints were lifted from the scene in 1995. The 

fingerprints were placed into the Automated Fingerprint Identification System (“AFIS”) 

in 1995, but there was no match. Thus, there was still no suspect identified. 

Investigator Hasan testified that the one witness identified in the police report whom he 

interviewed was unable to provide any valuable information concerning the suspect. 
And, in fact, the witnesses listed on the original police report had provided no 

information on the suspect at the time of the assault. With no suspect and no additional 

information, the case went cold. 

{¶6} In October 2013, this case was reopened and Investigator Hasan was 

assigned. Thereafter, N.R.’s rape kit was submitted to BCI for examination. In 

November 2013, BCI notified the Cleveland police in a CODIS Match Memorandum that 

DNA samples from N.R.’s rape kit matched the DNA of Anthony Smith, who was a 

Michigan offender. According to Investigator Hasan, Smith’s Michigan case occurred 

in 2010 or 2011. As a result of receiving this information, Investigator Hasan continued 

his investigation. During his investigation, Investigator Hasan learned that fingerprints 

were recovered from the scene. He re-submitted the latent prints to the forensic lab. 

This time, AFIS matched the fingerprint lifted from the drinking glass to Anthony Smith. 

{¶7} During this later investigation, Investigator Hasan located and interviewed 

N.R. regarding the incident. N.R.’s statement was consistent with her 1995 account. 

When presented with a photo lineup, however, she was not able to make an identification. 

 Investigator Hasan also noted that photographs of the scene were taken in 1995. He 

was able to review those photographs during his investigation. The state subsequently 

indicted Smith within the statute of limitations. 

{¶8} After the hearing, the trial court issued an order denying Smith’s motion. 

The trial court determined that Smith had not established actual and substantial prejudice, 

stating that Smith’s arguments “concerning faded memories and the purported 
unavailability of unidentified ‘key witnesses’ amount to little more than speculation,” and 

his argument concerning the destruction of evidence “fails to even hint at what value such 

evidence might have.” The court further found that even if Smith had established actual 

prejudice, the state satisfied its burden of producing evidence of a justifiable reason for 

delay. The court noted that although the state had the DNA and the fingerprint evidence 

in its possession since 1995, “the reasons for the delay qualify as investigative, and [they] 

were not an attempt to gain a tactical advantage or the result of negligence or error in 

judgment.” 

{¶9} On February 3, 2016, a jury convicted Smith of rape in violation of R.C. 

2907.02(A)(2), kidnapping in violation of R.C. 2905.01(A)(4), and aggravated burglary in 

violation of R.C. 2911.11(A)(1). The trial court sentenced Smith to 11 years in prison 

for the rape, which was merged with the kidnapping charge, and 11 years on the 

aggravated burglary. The court ordered the sentences to be served consecutively to each 

other and consecutively to his sentence imposed in a Michigan case. 

{¶10} Smith now appeals. In his sole assignment of error, Smith claims the trial 

court erred in denying his motion to dismiss based upon preindictment delay. 

Specifically, Smith contends that he was prejudiced by the unjustified 19-year delay 

between the alleged offenses and the filing of the indictment. 

{¶11} The statute of limitations for a criminal offense is a defendant’s primary 

protection against overly stale criminal charges. United States v. Marion, 404 U.S. 307, 

322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In some circumstances, however, the Due 
Process Clause of the Fifth Amendment provides limited protection against preindictment 

delay. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). 

“An unjustifiable delay between the commission of an offense and a defendant’s 

indictment therefor, which results in actual prejudice to the defendant, is a violation of the 

right to due process of law * * *.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 

(1984), paragraph two of the syllabus. 

{¶12} The Ohio Supreme Court recently reiterated the “firmly established” 

burden-shifting framework courts apply to determine whether preindictment delay 

constitutes a due process violation in State v. Jones, Slip Opinion No. 2016-Ohio-5105, ¶ 

13. “Once a defendant presents evidence of actual prejudice, the burden shifts to the 

state to produce evidence of a justifiable reason for the delay.” Id., citing State v. 

Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio 

St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 99. A court must therefore determine 

whether the defendant demonstrated “actual prejudice to his ability to defend himself” 

before it determines whether the state demonstrated a justifiable reason for the delay. 

State v. Richardson, 8th Dist. Cuyahoga No. 103925, 2016-Ohio-5843, ¶ 9, citing Jones

at ¶ 16-18, 29. Where a defendant has failed in his burden, the courts need not consider 

any reasons for the delay. Richardson, citing Adams at ¶ 107. 

{¶13} In Jones, the Ohio Supreme Court also reviewed the appropriate standard 

for determining actual prejudice, which involves “a delicate judgment” and a 

“case-by-case consideration” of the particular circumstances. Jones at ¶ 20; State v. 
Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52; Marion, 404 U.S. at 

325, 92 S.Ct. 455, 30 L.Ed.2d 468. A reviewing court must scrutinize a defendant’s 

claim of prejudice “vis-à-vis the particular evidence that was lost or unavailable as a 

result of the delay and, in particular, consider[] the relevance of the lost evidence and its 

purported effect on the defense.” Jones at ¶ 23. 

{¶14} 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, 15 

Ohio St.3d at 157-158, 472 N.E.2d 1097 (1984). A determination of actual prejudice 

necessarily requires a balancing test, where the prejudicial factors, or unavailable 

evidence, presented by the defendant are balanced against the evidence at the time of the 

indictment, in light of their relevance to the defense. Jones at ¶ 26; Luck at 157-158. 

{¶15} Therefore, “the possibility of faded memories, inaccessible witnesses, and 

lost evidence,” alone, does not sufficiently demonstrate actual prejudice. Jones, Slip 

Opinion No. 2016-Ohio-5105, at ¶ 27. A defendant may not “rely upon broad assertions 

of missing evidence or an unavailable witness to establish prejudice. A defendant must 

demonstrate a viable, tangible connection between the missing evidence or the 

unavailable witness to the defense of the case.” Richardson, 8th Dist. Cuyahoga No. 

103925, 2016-Ohio-5843, at ¶ 13. As stated in Jones, “the proven unavailability of 

specific evidence or testimony that would attack the credibility or weight of the state’s 

evidence against a defendant, and thereby aid in establishing a defense, may satisfy the 
due-process requirement of actual prejudice.” Jones at ¶ 25. Accordingly, “there must 

be some indication in the record of what the missing evidence or unavailable witness 

might have offered.” Richardson at ¶ 13. 

{¶16} Once a defendant has established actual prejudice, the state must produce 

evidence of a justifiable reason for delay in the commencement of prosecution. Walls, 

96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, at ¶ 51; Whiting, 84 Ohio St.3d at 

217, 702 N.E.2d 1199. A delay can be found to be unjustifiable 

when the state’s reason for the delay is to intentionally gain a tactical 

advantage over the defendant, see United States v. Marion, [404 U.S. at 

324, 92 S.Ct. 455, 30 L.Ed.2d 468], or when the state, through negligence 

o[r] error in judgment, effectively ceases the active investigation of a case, 

but later decides to commence prosecution upon the same evidence that was 

available to it at the time that its active investigation was ceased. 

Luck at 158. The length of delay will typically be the “key factor” in determining 

whether a delay caused by the state’s negligence or error in judgment is justifiable. Id.

{¶17} In reviewing a trial court’s decision on a motion to dismiss for 

preindictment delay, this court applies a de novo standard of review to the legal issues, 

but we afford great deference to the findings of fact made by the trial judge. State v. 

Smith, 8th Dist. Cuyahoga No. 100501, 2014-Ohio-3034, ¶ 23, citing State v. Wade, 8th 

Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 45. 
{¶18} Here, Smith generally claims that he was prejudiced by the lack of “any 

evidence save the DNA rape kit,” stating that the victim could not identify him and the 

state could not match the fingerprints at the scene to him. Specifically, he argues that he 

has been prejudiced by the following: (1) his faded memories and the faded memories of 

the victim; (2) the unavailability of “key witnesses,” including the downstairs tenant who 

yelled “shut up,” and the missing knife; (3) the destruction of evidence, such as the EMS 

run report and the 911 call; and (4) the house where the alleged incident occurred has 

changed significantly. Smith claims that “the lost evidence could have been 

exculpatory.” We find Smith’s general assertions of the possibility of prejudice fail to 

satisfy the “actual prejudice” prong of the preindictment delay analysis. 

{¶19} As previously discussed, the possibility of faded memories, unavailable 

witnesses, and lost or destroyed evidence does not, in and of itself, constitute actual 

prejudice. Richardson, 8th Dist. Cuyahoga No. 103925, 2016-Ohio-5843, at ¶ 11; 

Jones, Slip Opinion No. 2016-Ohio-5105, at ¶ 21. “Those are ‘the real possibilit[ies] of 

prejudice inherent in any extended delay,’ and statutes of limitations sufficiently protect 

against them.” Jones at ¶ 21, quoting Marion at 326. Rather, the defendant must 

establish what the missing evidence or unavailable witnesses might have offered in 

assisting in his defense. Richardson at ¶ 13. 

{¶20} Smith’s general assertions that he has a “very limited memory” of the day in 

question and “memories of the offense are severely compromised by time” are mere 

speculation. Moreover, the record belies this assertion as it relates to the victim. 
N.R.’s account of the rape to Investigator Hasan upon the reopening of the case was 

consistent with her account as reported to the police in 1995. Finally, Smith failed to 

provide what the missing witness might have said or how he might have assisted in 

Smith’s defense. 

{¶21} Additionally, regarding the condition of the house, Smith provides that “the 

location of the alleged rape has changed significantly” and “it appears any evidence 

obtained from the scene was destroyed by the state.” According to Smith, this made it 

“more difficult” to present a defense and, therefore, was prejudicial. However, the 

record in this case includes numerous photographs that depict the scene of the assault as it 

was in 1995. And Smith fails to show how a visit to the house would refresh his 

memory or otherwise aid in his defense. Further, the record demonstrates that the 

following evidence was obtained from the scene: Smith’s DNA, as collected through 

the victim’s rape kit; fingerprints lifted from a drinking glass at the scene; and the 

victim’s consistent account that her assailant left with the knife and the scarf. Although 

Smith asserts that the EMS run report and the 911 call have been destroyed by the state, 

or are otherwise unavailable, he fails to show, much less allege, how such evidence might 

be beneficial to his defense. 

{¶22} On balance, in considering the unavailable evidence against the evidence 

available at time of the indictment, we cannot find Smith suffered actual prejudice. 

Although some prejudice may have occurred from evidence lost over the 19 years 
between the offense and the indictment, we find that Smith’s claims of prejudice are 

speculative. 

{¶23} However, even if Smith had established actual prejudice, we find that the 

state produced evidence of a justifiable reason for delay in the commencement of 

prosecution. As previously stated, a delay may be found unjustifiable when the state’s 

reason for the delay is to intentionally gain a tactical advantage over the defendant, “or 

when the state, through negligence o[r] error in judgment, effectively ceases the active 

investigation of a case, but later decides to commence prosecution upon the same 

evidence that was available to it at the time that its active investigation was ceased.” 

Luck, 15 Ohio St.3d at 158, 472 N.E.2d 1097. 

{¶24} Here, there is nothing in the record to suggest that the state used the delay to 

gain a tactical advantage over Smith. Further, this is not a case where the state, through 

negligence or error, ceased its investigation and later, without new evidence, decided to 

prosecute. 

{¶25} The record demonstrates that the defendant was a stranger to the victim. 

Neither the victim, nor the witnesses listed on the police report, could identify the suspect. 

 Therefore, with no suspect and no additional information, the case went cold. New 

evidence, however, was discovered when the victim’s rape kit was submitted for DNA 

testing in 2013. BCI notified the Cleveland police in November 2013 that DNA samples 

from N.R.’s rape kit matched Smith’s DNA. The record shows that Smith’s DNA 

became available in 2010 or 2011, when Smith became a Michigan offender. With this 
new evidence, the state was able to identify Smith as the suspect. After receiving this 

information, the state continued its investigation of the case. Investigator Hasan 

re-submitted the latent fingerprints recovered from the scene to the forensic lab. This 

time, AFIS matched the fingerprint lifted from the drinking glass to Anthony Smith. 

Although the state had in its possession the DNA and the fingerprint since 1995, there is 

no evidence to suggest that the reasons for the delay in submitting the samples, and thus, 

identifying and indicting Smith, were for anything other than investigative purposes. 

{¶26} Accordingly, we find the trial court did not err in denying Smith’s motion to 

dismiss based upon preindictment delay. Smith’s sole assignment of error is overruled. 

{¶27} Judgment affirmed. 

It is ordered that appellee recover of appellant 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. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

____________________________________ 

TIM McCORMACK, JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR