[Cite as State v. Bell, 2015-Ohio-4178.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 102141 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

KEVIN BELL

DEFENDANT-APPELLANT

JUDGMENT: 

CONVICTIONS AFFIRMED; SENTENCE 

VACATED; REMANDED FOR RESENTENCING 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-577001-A 

BEFORE: Boyle, J., Jones, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: October 8, 2015
ATTORNEYS FOR APPELLANT 

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Erika B. Cunliffe 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mary Weston 

Assistant County Prosecutor 

Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, J.: 

{¶1} Defendant-appellant, Kevin Bell, appeals his conviction and sentence. He 

raises five assignments of error for our review: 

1. The prosecution, initiated nearly 20 years after the alleged misconduct, 

violated Kevin Bell’s constitutional rights to due process and a fair trial as 

protected by the Sixth and Fourteenth Amendments to the United States 

Constitution and Sections 10 and 16, Article I of the Ohio Constitution. 

 

2. Mr. Bell’s rights to due process and a fair trial were violated because of 

the prosecutor’s improper remarks during closing arguments. 

3. Trial counsel was ineffective for failing to interpose contemporaneous 

objections to the prosecutor’s improper closing arguments. 

4. The trial court committed plain error and imposed a sentence not 

authorized by law when it sentenced Mr. Bell to an indefinite term of 7 - 25 

years in prison under pre-S.B. 2 sentencing law. 

5. The trial court committed error when it imposed a period of post-release 

control on Mr. Bell although the offense of which he was convicted 

occurred more than three years before the effective date of Am.Sub.S.B. 2. 

{¶2} Finding merit to his fourth assignment of error, we vacate Bell’s sentence 

and remand for resentencing. 

Procedural History and Factual Background 

{¶3} In August 2013, Bell was indicted on one count of rape in violation of R.C. 

2907.02(A)(2) and one count of kidnapping in violation of R.C. 2905.01(A)(4). Both 

counts carried notice of prior conviction and repeat violent offender specifications. The 

indictment alleged that the date of the offense was 
August 11, 1993. Bell was charged after his DNA was found by the Ohio Attorney 

General’s Bureau of Criminal Investigation and Identification (“BCI”) when it tested the 

rape kit that had been collected from the victim on the night of the incident. The trial 

court dismissed the specifications prior to trial. The remaining facts were presented at a 

jury trial. 

{¶4} L.B., the victim, testified that during the summer of 1993, she came from 

Ann Arbor, Michigan, where she lived, to Cleveland, Ohio, to spend the summer with her 

aunt. L.B. had just graduated from high school that spring. L.B.’s best friend, M.H., 

came with her to Cleveland for the summer. L.B.’s aunt lived on Cleveland’s eastside, 

in the area of East 114th Street and Superior Avenue, which she remembered was called 

“Hell’s Kitchen.” 

{¶5} L.B. stated that she and M.H. used to walk around and meet people, and just 

“have fun.” L.B. had a boyfriend that summer; his name was Anthony Lawrence. 

{¶6} On the night of the incident, L.B. testified that she and M.H. were walking 

down the street when they saw a black male, whom they had met a couple of nights 

before that night. She knew his name back then, but she could not recall it at the time of 

trial. L.B. said that she and M.H. went to his house. When they were ready to leave, 

the male told them that it was not safe outside so he would walk them home. L.B. did 

not recall if the male was alone or if anyone else came with him. As they were walking 

past “some bushes,” the male pulled her into the bushes, pulled down her “panties” and 

shorts, and told her to “shut the fuck up.” He then raped her vaginally. 
{¶7} L.B. said that after the incident, she “went straight to a pay phone and 

called police.” She told police that she had just been raped. They transported her to 

the hospital. At the hospital, a rape kit was collected from her. 

{¶8} L.B. said that she did not recall the name “Kevin Bell.” She testified that 

she never had consensual sex with someone named Kevin Bell, nor with someone named 

“Delon” or “Deleon.” 

{¶9} L.B. looked at several photo arrays. She said that one of the men in one of 

the photo arrays looked familiar to her from her time in Cleveland, but she did not 

recognize any of the men as someone who raped her or as someone with whom she had 

consensual sex during the summer of 1993. 

{¶10} L.B. said that she had reviewed her medical records. She recalled telling 

the nurses and doctors what had happened to her. She said that she would have been 

telling the truth when she talked to them, and she agreed that her memory of the incident 

would have been better at that point than it was at trial. She told doctors at that time that 

she had not had consensual sex for two weeks prior to the incident; it was with her 

boyfriend. L.B. stated that she only had consensual sex with her boyfriend that summer. 

 

{¶11} L.B. testified that when she was contacted by investigators 20 years later, 

she did not recall being raped. She stated, “I literally didn’t remember being in 

Cleveland.” She said that after the incident, she left Cleveland and must have blocked 

the whole thing out of her mind. 
{¶12} L.B. testified that she had no recollection of telling police or doctors that 

two people raped her, but she would have been telling the truth back then. 

{¶13} On cross-examination, defense counsel asked L.B. if she recalled telling 

police that the two men who raped her were named Mark and “Dolon or Deleon.” L.B. 

did not recall any names. But she said that she had no reason to lie, so the police report 

was probably accurate. She also did not recall telling police that the first person who 

raped her, “Dolon or Deleon,” was “six feet tall, 170 pounds, well built, approximately 23 

years old with light skin.” Nor did L.B. recall telling police that the second person who 

raped her, Mark, was “5-9, 120 [pounds], 30 years old, [and had] dark skin.” 

{¶14} M.H. testified that on the night of the incident, she and L.B. went to visit 

L.B.’s boyfriend, Anthony. M.H. said that when they left Anthony’s home it was dark. 

As they were walking back to L.B.’s aunt’s house, L.B. “got raped.” M.H. said that two 

black males approached them from behind. M.H. recognized one of them as someone 

she had seen previously; she said that they had been to his house before the night of the 

incident. She recalled that he lived with his grandfather. 

{¶15} M.H. remembered L.B. getting raped in an alley. She said that the male 

was behind L.B. and had pulled her pants down. M.H. saw it happen. She said that 

L.B. was “frightened, scared, [and] telling them to stop.” M.H. was standing very close 

to the male and L.B. as the man was raping L.B. 

{¶16} M.H. said that the male who was raping L.B. had a broken beer bottle in his 

hand and threatened M.H. with the bottle when she tried to get him off of L.B. M.H. 
could not remember what the other male was doing. The men left after the rape. M.H. 

and L.B. immediately called 911 on a pay phone. 

{¶17} M.H. was not able to identify Bell in a photo array as the person who raped 

L.B. in August 1993. 

{¶18} Dr. Brian Huettl testified that he examined L.B. on the night of the incident. 

 Dr. Huettl said that his notes from that night indicate: 

Patient is a 18-year-old black female who reportedly was assaulted early 

this morning by two black males. Patient states that she and a friend were 

walking down the street — parenthetically, 105th Street — when she saw D 

— first initial — with a friend. They were beating people up with a 

broken bottle. D stayed with the patient. His friend took the patient’s 

friend down the street. D threatened the patient saying that if she left, he 

would beat her up. He told her to stay still, grabbing her from behind, 

pulling her * * * [p]ants and panties down and forcibly penetrating her 

vaginally. Patient does not know if he ejaculated. D’s friend returned to 

the scene and was told now it’s your turn. He followed D’s instructions 

and also penetrated her — the patient vaginally. 

{¶19} Dr. Huettl testified that patient was “composed, but obviously upset.” L.B. 

further told Dr. Huettl that her most recent consensual sex encounter had been two weeks 

previously and that two people had attacked her that night. Dr. Huettl testified that the 

patient was in a state of “shock and disbelief, but was able to talk about it.” 

{¶20} The rape kit was originally received by the Cleveland Police Department lab 

on August 16, 1993. Several Cleveland police officers testified as to the chain of 

custody of the rape kit. The kit was sent to BCI on May 18, 2012. Two unique DNA 

profiles were found from swabs taken from L.B.’s vagina (including blood and semen) 

when the rape kit was collected — one belonging to L.B. and one belonging to Bell. 
Further, a “cutting” from L.B.’s shorts and a “differential cutting from the underwear 

resulted in a mixture consistent with contributions from [the victim], Kevin Bell, and an 

unknown individual.” BCI examiners later tested Deleon Nimons’s DNA against the 

unknown DNA, and found that he could not be excluded as a contributor to the mixture of 

DNA found on L.B.’s underwear. But no conclusions could be made regarding the 

shorts because there was “insufficient data.” 

{¶21} Brenda McNeely, an agent for BCI, testified that she was assigned to work 

on Bell’s case. She reviewed the Cleveland police report that was completed in 1993 at 

the time of the incident. She located the victim in Michigan. She ruled out Bell as one 

of L.B.’s consensual sexual partners. McNeely then sent another agent to Michigan to 

show L.B. a photo array with Kevin Bell in it. McNeely said that L.B. did not recognize 

Bell in the photo array. 

{¶22} McNeely said that she traveled to Michigan to meet with M.H. Special 

agent John Saraya went with her. Agent Saraya showed M.H. a photo array; she did not 

recognize Bell in the photo array either. 

{¶23} From the police report in 1993, McNeely learned that a possible rape 

suspect, Deleon Nimons, lived at 10220 Empire, with his grandfather. She located him 

in Cleveland, Ohio. She showed him photos of L.B., M.H., and Bell, and he recognized 

all of them. McNeely only talked to Nimons for about 45 minutes that day. After that, 

he began calling her every day, several times a day. When McNeely asked him if they 

would find his DNA on the victim, Nimons was very agitated and scared. McNeely said 
that she was under the impression that there were two men who raped the victim, so she 

was trying to determine if Nimons was one of the perpetrators. McNeely learned that 

the rape may have occurred in the area of “105th and Kempton,” near where Nimons 

lived with his grandfather. Nimons would not consent to giving a bucal swab for DNA 

testing, so McNeely obtained a search warrant to do so. 

{¶24} Nimons testified that in 1993 he lived with his grandfather on Empire 

Avenue in Cleveland, Ohio. Nimons was “best friends” with Mark Henderson. He 

also knew Kevin Bell from the neighborhood, but was not close friends with him. 

Nimons recalled that he was on house arrest that summer. He remembered cutting his 

ankle bracelet off on the night of August 11, 1993. Nimons saw Bell in an alley walk 

off with a girl. As he was walking away, he heard the girl say, “Stop. Kevin, stop.” 

{¶25} Nimons testified that a week before seeing Bell in the alley with the girl, he 

had consensual sex with that same girl at his house. Nimons admitted that he only told 

police this fact after his DNA could not be excluded from a cutting of L.B.’s underwear. 

{¶26} On cross-examination, Nimons agreed that his attorney told him that he 

could never be charged with raping L.B. because the statute of limitations had run. 

{¶27} Mark Henderson testified that he was currently in prison for aggravated 

murder. He said that he was 23 years old in the summer of 1993. Henderson did not 

recall much from that summer because he did “a lot of drugs” and drank a lot. 

Henderson said that he was childhood friends with Bell and Nimons. He did not 
remember L.B. or M.H. from that summer. Henderson stated that he did see Nimons 

beat up his girlfriend one time. 

{¶28} The jury found Bell guilty of both counts — kidnapping and rape. The 

trial court merged the counts for purposes of sentencing, and the state elected to proceed 

on the rape count. The trial court sentenced Bell to seven to 25 years under the pre-S.B. 

2 sentencing laws. The court further classified Bell as a sexually oriented offender 

under H.B. 180. The court also imposed postrelease control, but later issued a nunc pro 

tunc removing postrelease control. It is from this judgment that Bell appeals. 

Preindictment Delay 

{¶29} In his first assignment of error, Bell argues that the state violated his due 

process rights when it prosecuted him nearly 20 years after the alleged misconduct. 

{¶30} The delay between the commission of an offense and an indictment, can, 

under certain circumstances, constitute a violation of due process of law guaranteed by 

the federal and state constitutions. See State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 

1097 (1984); United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468 

(1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). 

{¶31} The statute of limitations governing a particular crime provides the “primary 

guarantee against bringing overly stale criminal charges.” State v. Copeland, 8th Dist. 

Cuyahoga No. 89455, 2008-Ohio-234, ¶ 10, citing Lovasco. In 1999, the Ohio General 

Assembly extended the statute of limitations for rape from 6 to 20 years. See R.C. 

2901.13(A)(3)(a). The amendment applies retroactively to offenses committed prior to 
the amendment, provided that the statute of limitations for such offenses had not yet 

expired by March 9, 1999. Copeland at ¶ 11. Here, Bell concedes that the statute of 

limitations to bring rape charges had not yet expired when the General Assembly’s 

amendment of R.C. 2901.13 became effective in March 1999; Bell’s indictment was filed 

two days before the 20-year statute of limitations expired. 

{¶32} Courts apply a two-part test to determine whether preindictment delay 

constitutes a due process violation. The defendant has the initial burden to show that he 

was substantially and actually prejudiced due to the delay. State v. Whiting, 84 Ohio 

St.3d 215, 217, 702 N.E.2d 1199 (1998). But “proof of actual prejudice, alone, will not 

automatically validate a due process claim” as “the prejudice suffered by the defendant 

must be viewed in light of the state’s reason for the delay.” Luck at 154, citing Marion. 

Thus, once a defendant establishes “actual prejudice,” the burden then shifts to the state 

to produce evidence of a justifiable reason for the delay. Id. Thereafter, the due 

process inquiry involves a balancing test by the court, weighing the reasons for the delay 

against the prejudice to the defendant, in light of the length of the delay. State v. Walls, 

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

{¶33} Prejudice is not presumed solely due to a lengthy delay. Copeland at ¶ 

13. “The determination of ‘actual prejudice’ involves ‘a delicate judgment based on the 

circumstances of each case.’” Walls at ¶ 52, quoting Marion, 404 U.S. at 325, 92 S.Ct. 

455, 30 L.Ed.2d 468. 
{¶34} In the past, this court required a defendant to also establish that any missing 

evidence, lost witnesses, or physical evidence, adversely affected his ability to defend 

himself. Specifically, this court required a defendant to demonstrate that missing 

evidence was nonspeculative and exculpatory. See State v. McFeeture, 8th Dist. 

Cuyahoga No. 100434, 2014-Ohio-5271; Copeland, 8th Dist. Cuyahoga No. 89455, 

2008-Ohio-234. But in a recent en banc decision, State v. Jones, 8th Dist. Cuyahoga No. 

101258, 2015-Ohio-2853, this court held that under the facts of that case, the defendant 

suffered actual prejudice due to a nearly 20-year preindictment delay under the general 

“concepts of due process and fundamental justice,” rather than the “the exculpatory 

evidence standard.” Id. at ¶ 47. 

{¶35} In Jones, a majority of this court focused on the fact that in that case, 

identity was not an issue. The victim was acquainted with the defendant and had gone 

with him to his mother’s house. She identified him by his first and last name from the 

beginning, telling police and medical personnel. Therefore, we determined that because 

identity was not an issue in the case, the DNA results did not “advance the case.” Id. at 

¶ 42. We held that to require the defendant to prove that missing evidence would have 

been exculpatory would have been a “near impossibility” because no evidence was ever 

collected by the police, i.e., no photos of the victim were ever taken, no photos of the 

alleged crime scene were taken, and the victim’s clothing was not retained. Jones’s 

mother, who was (according to the victim) in the other room when the alleged rape 

occurred, had since died; she had never been interviewed by police. We explained that 
anything she might have said was speculative and, thus, requiring Jones to prove that her 

testimony would be exculpatory is “simply violative of his due process rights.” Id. at ¶ 

46. 

{¶36} In Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097, the Ohio Supreme Court held 

that the defendant suffered actual prejudice by the preindictment delay because two key 

witnesses had died and all of the tape recorded interviews with potential witnesses had 

been destroyed. Id. at 157-158. The Supreme Court held that the state’s reason for the 

delay, “a police error in judgment as to whether [the] case should have been submitted to 

the prosecutor’s office,” was not a justifiable delay in light of the prejudice to the 

defendant. Id. at 158. The Supreme Court explained: 

In the instant case, the state delayed prosecuting the defendant 

because of an alleged “error in judgment,” which lead to a halt in the 

Lakewood Police Department’s active investigation of Tietjen’s death. 

This investigation remained at a stand-still for approximately fifteen years. 

During that time, witnesses died, memories faded, and evidence was lost. 

When the state finally decided to commence its prosecution of the 

defendant herein, it did so without one shred of new evidence — its case 

being substantially the same as it had been since 1968. For these reasons, 

we find that the pre-indictment delay in the instant case is unjustifiable. 

Id. at 158-159. 

{¶37} In Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, the 

defendant was indicted 13 years after the victim was murdered soon after police 

submitted fingerprints found at the victim’s home to “an on-line automated fingerprint 

identifications system,” which had just become available and subsequently identified him 
as a good match. Id. at 438. Walls argued that the delay prejudiced him in several 

ways. The Supreme Court explained: 

Walls insists that the passage of time resulted in the loss of 

substantial exculpatory evidence. He argues that the coroner’s 

investigator— if he had been alive to testify— could have placed the time 

of death during school hours rather than at 4:00 p.m. Walls also contends 

that missing school attendance records would have shown that he was in 

school on the afternoon of the murder. He further believes that 

unavailable witnesses could have supplied evidence implicating one 

Anthony Gray as the murderer. In particular, he claims that an 

acquaintance of Gray’s, Dawn Smith, had heard Gray tell his cousin that he 

had killed a woman on the street where the murder took place. Walls 

argues that he was prejudiced even further by the death of the lead 

investigator because only the investigator knew why Gray was considered a 

suspect. Finally, Walls contends that he was prejudiced by the 

disappearance of specific items of evidence: (1) a tape made by a neighbor 

describing a person she saw entering the victim’s house, (2) a faucet handle 

from the victim’s home that had a blood stain on it, and (3) an anonymous 

letter that apparently discussed who committed the murder. 

Id. at ¶ 53. 

{¶38} The state countered in Walls that although the coroner’s assistant was 

deceased, the Butler County coroner testified at length as to the time of death. The state 

further countered that despite missing attendance records from individual classes, the 

state produced evidence that Walls was in school on the day of the murder. And “[a]s to 

the evidence concerning the other suspect, police located [her] but considered her 

unreliable[.]” Id. at 453. Finally, the state argued that the “scientific testing revealed 

that a bloodstain on a ‘missing’ pillow taken from the Gray’s home did not contain the 

victim’s DNA.” Id.

{¶39} In rejecting Walls’s claims, the Supreme Court explained: 
In addition to the state’s substantial arguments refuting Walls’s 

contentions, we must also consider the fingerprint evidence implicating 

Walls. Though Walls stated that he had never been to the victim’s home, 

his fingerprints were found in incriminating locations around the house, 

including on the storm door and on items scattered about the ransacked 

home. Furthermore, the fingerprints found in the home did not match 

those of Gray, the individual who Walls claims actually committed the 

crime. 

Although some prejudice may have occurred from evidence lost over 

the years, we conclude that Walls’s claims of prejudice are speculative at 

best. Marion, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468. Moreover, 

we are firmly convinced that the delay was justified. As the United States 

Supreme Court explained, “To prosecute a defendant following 

investigative delay does not deprive him of due process, even if his defense 

might have been somewhat prejudiced by the lapse of time.” Lovasco, 431 

U.S. at 796, 97 S.Ct. 2044, 52 L.Ed.2d 752. Here, the indictment occurred 

only a couple of months after new computer technology made it possible to 

match the fingerprints at the murder scene to those of Walls. Prior to the 

advent of that technology, the state had no means of obtaining a match for 

these prints. Upon receiving the new fingerprint evidence, the state 

proceeded diligently to initiate proceedings against Walls. This situation 

is distinctly different from cases in which the state has compiled evidence 

but simply fails, or refuses, to take action for a substantial period. See, 

e.g., Luck, 15 Ohio St.3d 150, 15 OBR 296, 472 N.E.2d 1097. Because 

the delay here was justified, the 13-year hiatus between the offense and the 

indictment did not violate Walls’s due process rights. 

Id. at ¶ 55-56. 

{¶40} Here, Bell argued in his motion that he was “seriously prejudiced” by the 

20-year delay by loss of evidence and witnesses, and the fading memories of the 

defendant and the victim. The loss of evidence that Bell was specifically referring to in 

his motion were the medical records from the night the victim went to the hospital. But 

the state later obtained the medical records, and even had the treating physician testify to 

such records. Bell also argues on appeal that L.B.’s aunt “may have provided important 
evidence about L.B.’s conduct that summer,” and the 911 call may have been helpful to 

his case because L.B. “likely gave the dispatcher a description of her attacker.” 

{¶41} Bell further argued in his motion that because he cannot remember that 

night, he cannot defend himself. He asserts that if the state had brought charges against 

him in a reasonably timely fashion, he may have been able to establish a “clear alibi for 

the offense.” He argues that he could have had a consensual sexual encounter with the 

victim “at some point in and around that night.” He also argues that the victim’s and 

M.H.’s faded memory also prejudice his ability to establish his defense. He claims that 

the “passage of time” interfered with his right to confront and cross-examine the evidence 

presented by “the girls” because they do not recall what happened. 

{¶42} The state asserts that many courts, including the United States Supreme 

Court in Marion, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468, have held that faded 

memory is insufficient to establish actual prejudice. In Marion, the high court 

explained: 

Appellees rely solely on the real possibility of prejudice inherent in any 

extended delay: that memories will dim, witnesses become inaccessible, and 

evidence be lost. In light of the applicable statute of limitations, however, 

these possibilities are not in themselves enough to demonstrate that 

appellees cannot receive a fair trial and to therefore justify the dismissal of 

the indictment. Events of the trial may demonstrate actual prejudice, but 

at the present time appellees’ due process claims are speculative and 

premature. 

{¶43} While we agree with the state that faded memory alone may not amount to 

actual prejudice, “[t]he determination of ‘actual prejudice’ involves ‘a delicate judgment 
based on the circumstances of each case.’” Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 

775 N.E.2d 829, at ¶ 52, quoting Marion at 325. 

{¶44} After review, we conclude that as in Walls, there is no doubt that some 

prejudice to Bell may have occurred from the 20-year delay. But when balancing the 

prejudicial delay in this case against the state’s justifiable reason for the delay, we 

conclude that Bell’s due process rights were not violated. 

{¶45} Indeed, in this case, there was quite a bit of evidence that was not lost. The 

victim’s underwear and shorts from the night of the incident were collected and kept by 

police in the evidence room. Although the original police officers who investigated the 

case were not available to testify, many witnesses were, including the victim, M.H. (who 

was an eyewitness to the rape), the physician who treated L.B. at the hospital on the night 

of the rape, and two other witnesses, Mark Henderson and Deleon, who were originally 

named by L.B. and M.H. as possible suspects in the rape. Bell was able to fully 

challenge and cross-examine all of these witnesses. 

{¶46} Notably, even though L.B. and M.H. originally said that two men raped L.B. 

on that night in August 1993, and then they testified at trial that they could not remember 

the second man raping L.B., they could remember a lot of details about what had occurred 

that night. Their versions of the events differed slightly from each other and from their 

original account, but the jury was able to fully determine their credibility. 

{¶47} Just as the Ohio Supreme Court could not ignore the fact that the 

defendant’s fingerprints were found at the victim’s home in Walls, 96 Ohio St.3d 437, 
2002-Ohio-5059, 775 N.E.2d 829, we cannot ignore the fact that Bell’s DNA was found 

on a swab taken from L.B.’s vagina within hours of the rape. This was new evidence, 

justifying the delayed indictment. Although Bell argues that his DNA could have been 

present from consensual sex, the victim and M.H. both testified that L.B. went to the 

hospital immediately after she was raped, both reporting at that time that two men raped 

L.B. on that night. Further, L.B. told doctors on the night of the rape in August 1993 

that it had been two weeks since she had consensual sex with her boyfriend. 

{¶48} Accordingly, we overrule Bell’s first assignment of error. 

Prosecutorial Misconduct 

{¶49} In his second assignment of error, Bell argues that his right to a fair trial was 

violated because of improper remarks made by the prosecutor in closing arguments. 

Specifically, he points to the following passage: 

[T]hroughout [defense counsel’s] closing argument I couldn’t help 

but be reminded of an octopus. An octopus doesn’t have most obvious 

ways to defend itself, it doesn’t have claws, it doesn’t have teeth. When 

an octopus is attacked, it emits this ink sac that clouds up the water. An 

octopus can just retreat into the murkiness. 

It will be up for you to decide if you have heard any rational 

arguments from this defendant that gets this defendant out of under this 

overwhelming evidence of his guilt. I am here, and I want to spend a little 

time clearing up that murkiness, all right? Let’s get rid of the ink. Let’s 

talk about what the evidence is in this case, because you’ve taken an oath to 

return a verdict that’s based on evidence, right? 

You’ve been instructed that what the attorneys say is not evidence. 

You’re going to have to go back into the deliberation room and return a 

verdict that is based on what you heard and what you saw, and nothing 

else. 
I want to comment on a few things that defense counsel made in her 

argument because I don’t want there to be confusion. I don’t want this ink 

out there confusing you. 

(Emphasis is language in the prosecutor’s comments that Bell did not include in his 

argument on appeal.) 

{¶50} Bell did not object to the prosecutor’s comments. Thus, he has waived all 

but plain error. The plain error standard, however, is essentially the same as the review 

for prosecutorial misconduct standard — did the prosecutor’s comments prejudice Bell’s 

substantial rights? In other words, the alleged prosecutorial misconduct constitutes plain 

error only if it is clear that Bell would not have been convicted in the absence of the 

improper comments. See State v. Slagle, 65 Ohio St.3d 597, 606, 605 N.E.2d 916 

(1992). 

{¶51} Prosecutorial misconduct will not provide a basis for reversal unless the 

misconduct can be said to have deprived the appellant of a fair trial based on the entire 

record. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “The 

touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” 

State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, quoting Smith v. 

Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). 

{¶52} With respect to closing argument, the prosecutor is entitled to a certain 

degree of latitude. State v. Apanovitch, 33 Ohio St.3d 19, 514 N.E.2d 394 (1987). 

Isolated comments, therefore, should not be taken out of context and given their most 

damaging meaning. State v. Carter, 89 Ohio St.3d 593, 734 N.E.2d 345 (2000). 
Nonetheless, the prosecutor must confine himself to certain limits. See State v. 

Liberatore, 69 Ohio St.2d 583, 433 N.E.2d 561 (1982). 

{¶53} Bell argues that the prosecutor’s comments violated his right to remain 

silent, his right to the presumption of innocence, and were sufficiently flagrant such that 

reversal is warranted “despite counsel’s failure to object to them.” 

{¶54} In State v. Smith, 130 Ohio App.3d 360, 720 N.E.2d 149 (1st Dist.1998), the 

prosecutor stated that defense counsel was “really good at making * * * chicken salad out 

of chicken [shit].” The court found that the comments improperly denigrated defense 

counsel. The court in Smith explained: 

A prosecutor may argue and argue ardently that the evidence does not 

support the conclusion postulated by defense counsel. A prosecutor may 

not, however, denigrate the role of defense counsel by injecting his personal 

frustration with defense tactics[.] * * * The prosecutor was not entitled to 

employ * * * argument to denigrate the role of defense counsel and to 

insinuate to the jury that [the defendant] and his counsel, by exercising their 

right to suggest what conclusions may or may not have been drawn from the 

evidence found at trial, were seeking to hide the truth. 

Id. at 368-369, quoting State v. Hart, 94 Ohio App.3d 665, 641 N.E.2d 755 (1st 

Dist.1994). 

{¶55} Here, we find that the prosecutor’s comments regarding the octopus were 

similar to those made by the prosecutor in Smith, and were somewhat denigrating to 

defense counsel, which is improper. But we disagree with Bell that these comments 

violated his right to remain silent or his right to the presumption of innocence. In Smith, 

the court found that when the prosecutor commented on the defendant’s lack of an alibi, 

that it was “adversely directed to Smith’s decision not to testify.” Id. at 367. But here, 
while we agree that the prosecutor may have improperly suggested that defense counsel 

and Bell were seeking to hide the truth, that did not amount to violating his right to 

remain silent or right to presumption of innocence. 

{¶56} Further, in the context of the entire closing argument, we do not find that the 

prosecutor’s isolated remarks about the octopus analogy “so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.” Donnelly v. 

DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); Apanovitch, 33 

Ohio St.3d at 24, 514 N.E.2d 394. 

{¶57} Accordingly, Bell’s second assignment of error is overruled. 

Ineffective Assistance of Counsel 

{¶58} In his third assignment of error, Bell argues that his trial counsel was 

ineffective for failing to object to the prosecutor’s comments during closing argument. 

{¶59} To prevail on a claim of ineffective assistance of counsel, the defendant 

must show both deficient performance and resulting prejudice. Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, 

the defendant must show that counsel’s representation fell below an objective standard of 

reasonableness. Id. Trial counsel is entitled to a strong presumption that his conduct 

falls within the wide range of effective assistance. Id. The adequacy of counsel’s 

performance must be viewed in light of all of the circumstances surrounding the trial 

court proceedings. Id. Hindsight may not be allowed to distort the assessment of what 
was reasonable in light of counsel’s perspective at the time. State v. Cook, 65 Ohio 

St.3d 516, 524, 605 N.E.2d 70 (1992). 

{¶60} Even assuming that counsel’s performance was ineffective, the defendant 

must still show that the error had an effect on the judgment. State v. Bradley, 42 Ohio 

St.3d 136, 142, 538 N.E.2d 373 (1989). Reversal is warranted only where the defendant 

demonstrates that there is a reasonable probability that, but for counsel’s errors, the result 

of the proceeding would have been different. Id. 

{¶61} In this case, even assuming that defense counsel should have objected, the 

fact that she did not do so did not affect the outcome of trial. As we found in the 

previous assignment of error, the prosecutor’s isolated comments in the context of the 

entire closing arguments were not such that the jury would have found Bell not guilty 

without the comments. The same applies to defense counsel not objecting to those 

comments. 

{¶62} Bell’s third assignment of error is overruled. 

Pre-S.B. 2 Sentence 

{¶63} In his fourth assignment of error, Bell argues that the trial court erred when 

it sentenced him to an indefinite prison term under pre-S.B. 2 sentencing law. He 

maintains that although the offense was in 1993, he should have been sentenced under 

Am.Sub.H.B. 86 (“H.B. 86”) that went into effect on September 30, 2011. 

{¶64} We agree with Bell’s arguments as this court has already decided this exact 

issue. See State v. Jackson, 8th Dist. Cuyahoga No. 100877, 2014-Ohio-5137, ¶ 29-39, 
discretionary appeal not allowed, State v. Jackson, 64 Ohio St.3d 1465, 2015-Ohio-1896, 

30 N.E.3d 974 (for a full discussion and analysis on this issue). Thus, in accordance 

with Jackson, we vacate Bell’s indefinite sentence and remand with instructions for the 

trial court to sentence Bell under H.B. 86. Bell’s fourth assignment of error is sustained. 

Postrelease Control 

{¶65} In his fifth assignment of error, Bell argues that if this court determines that 

the trial court properly sentenced him to an indefinite sentence, then postrelease control 

does not apply because it did not exist before S.B. 2. We note that the trial court 

originally included postrelease control in its sentencing entry, but later issued a nunc pro 

tunc removing it. But in the last assignment of error, we vacated Bell’s sentence and 

instructed the trial court to resentence Bell under H.B. 86. Because postrelease control 

applies under H.B. 86, the trial court should address it when resentencing Bell. 

{¶66} Bell’s fifth assignment of error is overruled because it is moot. 

{¶67} Convictions affirmed. Sentence vacated. Case remanded for 

resentencing under H.B. 86. 

It is ordered that appellee and appellant share the 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 resentencing. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY J. BOYLE, JUDGE 

LARRY A. JONES, SR., P.J., and 

TIM McCORMACK, J., CONCUR