[Cite as State v. Malone , 2011-Ohio-2445.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. RENNELL M. MALONE Appellant C.A. No. 10CA009754

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 06CR071825

DECISION AND JOURNAL ENTRY Dated: May 23, 2011

DICKINSON, Presiding Judge. {¶1} Diane Utsey-Henderson bled to death in her bedroom. Police interviewed her exboyfriend, Rennell Malone, after they found her body, but did not charge him with murder. They reopened the investigation severa l years later, and a grand jury indicted Mr. Malone for aggravated murder, murder, aggravated burglary, a nd felonious assault. Th e trial court convicted him of aggravated murder, murder, and felonious assault and sentenced him to life in prison with the possibility of parole after twenty years. Mr. Malone has appealed, arguing that the delay

between the crime and his indictment violated hi s right to due process, that his attorney was

ineffective because he did not file a motion to su ppress Mr. Malone’s statements to police, that his convictions are against the mani fest weight of the evidence, and that the trial court incorrectly

admitted evidence of other acts. We affirm Mr . Malone’s convictions because he did not demonstrate that preindictment delay caused actua l prejudice, his attorney was not ineffective,2

his convictions are not against th e manifest weight of the eviden ce, and the trial court did not admit any other acts evidence.

FACTS {¶2} Ms. Utsey-Henderson and Mr. Malone dated and lived together in her house until early 2001. By some accounts, their relationship was turbulent and marked by frequent fights, break-ups, and reconciliations. When their relationship ended and Mr. Malone moved out, however, they stayed friends. Around the same time, Ms. Utsey-Henderso n started dating James

“Pooch” Williams. {¶3} Ms. Utsey-Henderson celebrated her forty-fourth birthday with each man. Mr. Malone took birthday gifts to her house on her bi rthday, June 12, 2001, and helped repair a shelf in her bedroom. Later, they spent the evening at Mr. Malone’s apartment. The next night, Ms. Utsey-Henderson visited her sister, then celebrated with Mr. Williams by eating pizza and drinking gin outside her house. Mr. Malone stop ped by around 10:00 p.m. to return a hair clip to Ms. Utsey-Henderson. According to Mr. Williams, Ms. Utsey-Henderson “dressed [Mr. Malone] down pretty good” before he left. Ar ound midnight, Mr. Williams left to spend the night with another woman at a Motel 6. Ms. Utsey-Henderson was not seen alive again. {¶4} Ms. Utsey-Henderson left a voice mail messa ge for her sister, Deloise Brantley, in the early hours of Thursday, June 14th, that said, “I got to tell you about the drama. It was drama, drama, drama.” Ms. Brantley knocked on the door of Ms. Utsey-Henderson’s house on Thursday, but left when no one answered. She came back on Friday, June 15th, and called the police when she saw through a window that the cont ents of her sister’s purse were scattered on the floor. The police found Ms. Utsey-Henderson’ s body on the floor of her bedroom next to the bed, which was soaked through the mattress to the springs with blood.3

{¶5} Ms. Brantley told police that her sister was involved with Mr. Malone and Mr. Williams. They interviewed both, but did not char ge either with her murder. In 2004, the case file was reassigned to Detective Mark Carpentie re for investigation. Based, in part, on testing old evidence that had not previously been te sted and on new information provided by Mr. Malone’s cell mate at the Lorain County Jail, Mr. Malone was indicted in 2006.

PREINDICTMENT DELAY {¶6} Mr. Malone’s first assignment of error is that the five-year delay between Ms. Utsey-Henderson’s murder and his indictment violated his right to due process. Because his argument relates to delay before he was indicted, the question is not whether his right to a speedy trial was violated, but whether he was actually prejudiced by unjustifiable delay before the

indictment. See State v. Luck , 15 Ohio St. 3d 150, 153 (1984). A defendant must point to specific ways in which the ability to defend against the charges at trial was prejudiced. Id . In other words, “the defendant must demonstrate ho w the evidence that was lost due to delay would

have aided the defense.” State v. Saxon , 9th Dist. No. 09CA009560, 2009-Ohio-6905, at ¶9. {¶7} Mr. Malone argued that his ability to defend himself was prejudiced by unavailability of witnesses; the fading memory of available witnesses; and the loss or destruction

of evidence. He did not demonstrate that his defense was prejudiced in any of these ways. {¶8} With respect to the availability of witnesses, Mr. Malone argued that his defense was hampered by the death of his uncle, Howard Daggs, and a missing witness. According to Mr. Malone, Mr. Daggs told him that somethi ng had happened to Ms. Utsey-Henderson, and his testimony would have explained why Mr. Malone did not ask why he had been taken into custody during his interview in 2001. Mr. Malone also argued that one of two laborers who power washed Ms. Utsey-Henderson’s house before her death had disappeared. Mr. Malone’s4

defense was not prejudiced by the witnesses’ unavailability, however, because another family member provided similar testimony about the events after Ms. Utsey-Henderson died and the

other laborer testified about wa shing her house before she died. {¶9} Mr. Malone identified one potential witness whose memory had allegedly faltered. According to Mr. Malone’s attorney , Wendy Yearly’s name surfaced as someone who might have information about the murder “as to seeing somebody else at the house at the appropriate time and so forth.” The substance of her potential testimony, either before or after time had passed, was not established, and so Mr. Malone c ould only speculate about how his defense might have been prejudiced. {¶10} Finally, Mr. Malone identif ied several pieces of evidence that were supposedly lost or destroyed before they could be examined by the defense. In each case, however, he failed to demonstrate how his defense was prejudiced by the passage of time. {¶11} First, he argued that the lock to the door of Ms. Utsey-Henderson’s house through

which her murderer is assumed to have entered ha d not been retained as evidence. According to Mr. Malone, the key that was found in his possessi on could not be tested to determine whether it fit that lock if the lock was unavailable. Mr. Malone did not establish that testing the lock would have benefited his defense, but only that it could not be tested. Similarly, he argued that his own work records and Ms. Utsey-Henderson’s work reco rds were no longer available. He did not demonstrate how his defense was prejudiced by the absence of these records, only that “it would have helped us establish a more solid time line of what Ms. Utsey was doing at that time” and that Mr. Malone “did ... go to work the next day and so forth[.]” {¶12} He identified allegedly missing registration records from Motel 6 related to the alibi provided by Mr. Williams, but those records still existed and were provided to him. A5

representative of Motel 6 also tes tified about the records. Mr. Malone also argued that a shoe print found outside Ms. Utsey-Henderson’s house ha d not been preserved, but could not confirm that a shoe print had ever existed or that it w ould have benefited his de fense. Finally, he maintained that records from Ms. Utsey-Hend erson’s caller ID box and pager could have

demonstrated when Mr. Malone contacted her du ring her final days. Although records of her incoming calls were no longer available, Mr. Ma lone’s own telephone records were available, and they documented calls to her pager and home te lephone line. In addition, the contents of Ms. Utsey-Henderson’s caller ID box were transcribed into written form by investigators shortly after

her death and maintained as evidence. {¶13} At best, Mr. Malone argued that he might have been prejudiced by the passage of time between Ms. Utsey-Henderson’s death and his indictment. Preindictment delay, however, only deprives a defendant of due process wh en actual prejudice is established. See State v. Luck , 15 Ohio St. 3d 150, at paragraph two of the syllabus (1984). Mr. Malone’s first assignment of

error is overruled.

INEFFECTIVE ASSISTANCE {¶14} Mr. Malone’s second assignment of error is that he received ineffective assistance of counsel because his attorney did not file a motion to suppress recordings of his 2001 interrogation. Specifically, he has argued that the conditions during th e five-hour interrogation

were coercive and rendered hi s statements to police involuntar y. “To establish ineffective

assistance of counsel for failure to file a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question.” State v. Brown , 115 Ohio St. 3d 55, 2007- Ohio-4837, at ¶65. Even if there is a reasonabl e probability that the motion would have been granted, the failure to pursue it cannot be prejudicial unless there is also a reasonable probability6

that, without the excluded evidence, the defendant would have been acquitted. State v. Madrigal , 87 Ohio St.3d 378, 389 (2000) (citing Strickland v. Washington , 466 U.S. 668, 695 (1984)). {¶15} Even assuming that Mr. Malone’s statem ents were involuntary, there is not a reasonable probability that without those statements, the trial c ourt would have acquitted him. Although Mr. Malone has argued that his “co nfession” was involuntary, Mr. Malone never confessed to Ms. Utsey-Henderson’s murder. In f act, he did not make any statements that were inculpatory in and of themselves. The trial court did admit recordings made by the police, and

some of the State’s witnesses referred to his statements to demonstrate inconsistencies in his words and actions, but we cannot conclude that without this evidence, Mr. Malone would have been acquitted. His second assignment of error is, therefore, overruled.

MANIFEST WEIGHT {¶16} Mr. Malone’s third assignment of error is that his convictions were against the manifest weight of the evidence. When a defend ant argues that his convictions are against the manifest weight of the evidence, we “must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction[s] mu st be reversed and a new trial ordered.” State v.

Otten , 33 Ohio App. 3d 339, 340 (1986). {¶17} The trial court convicted Mr. Malone of murder, aggravated murder, and felonious assault. Section 2903.02(A) of the Ohio Revised Code prohibits any person from “purposely caus[ing] the death of another[.]” Aggravated murder, as defined by Section 2903.01(A) of the Ohio Revised Code, is murder committed with “prior calculation and design.” Section 2903.11(A)(1) prohibits any person from “caus[in g] serious physical harm to another[.]”7

{¶18} Dr. Paul Matus, the Lorain County Corone r, testified that Ms. Utsey-Henderson bled to death from multiple knife wounds to her a bdomen that struck her liver, gallbladder, aorta, kidney, and bowels. Dr. Matus also concluded th at Ms. Utsey-Henderson had been struck on the head with “tremendous force” by a heavy object Th e head injuries were “slightly curvilinear.” He testified that, although the head injury woul d not have been fatal, it would have left her

“disoriented and stunned.” Because it was hot and humid in the house, Dr. Matus could only estimate a range of about forty-eight hours, beginning on June 11, 2001, within which Ms. Utsey-Henderson had died. {¶19} Deloise Brantley testified that her sister had been in a chaotic relationship with Mr. Malone that involved frequent fights and periodic break-ups. According to Ms. Brantley, the couple’s “last so-called fight” was about two weeks before her sister died and Ms. UtseyHenderson was also dating Mr. Williams at the time. Ms. Brantley testified that she saw her sister for the last time on June 13, 2001, the day after her birthday, when Ms. Utsey-Hendersoncame to Ms. Brantley’s house during the evening. According to Ms. Brantley, Ms. UtseyHenderson left around 9:00 p.m. Two days later, Ms. Brantley called the police when she noticed her sister’s car in her garage, found two days worth of newspapers on her porch, and saw through a window that her sister’s purse had been overturned. {¶20} Retired Detective Robert Poli testified that he responded to Ms. UtseyHenderson’s house after the crime scene had been s ecured. According to him, there was a rip or tear in the rear screen door through which on e could reach the hook that latched it shut without difficulty. Detective Poli testified that he noti ced the contents of a purse on the floor, but no signs of a struggle in the house. In the bedroom , he noticed that drawers had been pulled out and items thrown about, but also noticed that the ri ght side of the bed was undisturbed. Ms. Utsey-8

Henderson’s body was found on the left side of the bed, which was unmade and soaked with blood. Based on the extent of her injuries and the blood that he found, De tective Poli expressed his opinion that the person who stabbed her would ha ve to have been close to her, but it was possible that the killer might not have ended up covered in blood. {¶21} Despite the scene in the bedroom, Detective Poli recalled that there were no signs of a struggle in that room either. He di d notice blood on the right side of the bedroom doorframe, but found no other blood in the house. He testified that he later made a list of incoming calls from Ms. Utsey-Henderson’s caller ID box, noting that there were many calls from Mr. Malone before she died, but none afterw ard. Detective Poli interviewed Mr. Malone at the Lorain Police Department and noticed that he had an injury on his right forearm that was “newer” but “in the healing stage.” Detective Dennis Moskal, who photographed the murder scene, also noticed the blood stain on the door frame of Ms. Utsey-He nderson’s bedroom and

estimated that it was four and one-half feet from the floor. {¶22} Detective Poli and Sergeant Albert Rivera searched Mr. Malone’s apartment after his initial interview. They found a key in Mr. Ma lone’s nightstand that fit the back door to Ms. Utsey-Henderson’s house. According to Sergeant Rivera, Mr. Malone in itially denied having a key to the house, but later told them that it “must have been Diane’s key and she left it for him.” Ms. Brantley testified that her sister always lo cked the doors to her house and that Mr. Malone did not have a key. Ms. Utsey-Henderson’s daught er, Jan Utsey, testified that she did not have a key to her mother’s house; that her mother ha d the locks changed after Mr. Malone moved out; and that her mother’s own spare key had turned up missing about a month before she died. {¶23} Detective Mark Carpentiere took over the investigation of Ms. Utsey-Henderson’s murder in 2004. He learned that blood samples ta ken from the crime scene had not been sent for9

DNA testing. When tested, blood from the be droom doorframe was consistent with Mr. Malone’s DNA profile. After Mr. Malone’s arre st in 2006, Detective Carpentiere interviewed Mr. Malone’s cell mate, Delmas Parsons. Mr. Parsons also testified. According to him, Mr.

Malone talked to him around fifteen times about the case against him. Mr. Parsons said that he grew concerned when Mr. Malone asked, “Do y ou blame me?” He also testified that Mr. Malone said that Ms. Utsey-Henderson’s head inju ry was caused by a glass serving tray that he broke and threw in a dumpster after her death. Jan Utsey confirmed that her mother had kept a “heavier” glass tray on her dresser that was never found. {¶24} Mr. Malone has argued that his convictions are against the manifest weight of the evidence because Delmas Parsons, whom he characteriz es as the State’s “key witness,” is a “lifelong criminal” with racist tendencies. Regarding the credibility of Mr. Parsons’ testimony, Mr. Parsons admitted that he had numerous tattoos that symbolized violence and hatred and that he had gotten those tattoos about twenty years earlie r while he was in prison. According to Mr. Parsons, he “used to have a real problem w ith ... [not] just African-Americans. It was everybody. The whole world.” The trial judge saw the tattoos and heard Mr. Parsons’ explanation of them and was en titled to believe his te stimony about the c onversations he had with Mr. Malone in prison. Mr. Malone has also argued that the evidence against him should be

discounted because it was all ci rcumstantial. Circumstantia l evidence, however, does not inherently have any less probative value than direct evidence. See State v. Jenks , 61 Ohio St. 3d 259, 272 (1991). This Court has reviewed the entire record, and we cannot c onclude that the trial court judge lost his way. Mr . Malone’s third assignment of error is, therefore, overruled.10

OTHER ACTS EVIDENCE {¶25} Mr. Malone’s last assignment of error is that the trial court incorrectly allowed testimony that he slashed the tires of Mr. Williams’ car and that he discussed incidents of violence against Ms. Utsey-Henderson with his cellmate. In this case, however, there is no other

acts evidence in the record. {¶26} Under Rule 404(B) of the Oh io Rules of Evidence, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the ch aracter of a person in order to show action in conformity therewith.” Mr. Pars ons testified about arguments w ith Ms. Utsey-Henderson that Mr. Malone described to him, but he did not testify about any in cidents of violence other thanthose for which Mr. Malone was on trial. In that respect, his testimony concerned Ms. UtseyHenderson’s attitude toward Mr. Malone instead of actions that he took toward her. Mr. Williams testified that he suspected that Mr. Mal one slashed the tires of his car and confronted him before Ms. Utsey-Henderson died, but he also te stified that Mr. Malone denied it. Although some of these statements might have been objec tionable for other reasons, they are not other acts under Rule 404(B). Because there was no other acts evidence, Mr. Malone’s fourth assignment

of error is overruled.

CONCLUSION {¶27} The delay between Ms. Utsey-Henderson’ s death and Mr. Malone’s indictment did not actually prejudice his defense. Mr. Malone never confessed to killing her, and his attorney did not provide ineffective assistance by not filing a motion to suppress his statements to police. His convictions are not against the manifest weight of the evidence, and the evidence

at trial did not include other acts under Rule 404(B) of the Ohio Rules of Evidence. The11

judgment of the Lorain County Court of Common Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT CARR, J. BELFANCE, J. CONCUR

APPEARANCES: KREIG J. BRUSNAHAN, Attorney at Law, for Appellant. DENNIS WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting Attorney, for Appellee.