[Cite as State v. Wilson,
2025-Ohio-134.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-03-021
: OPINION
- vs - 1/21/2025
:
SCOTT ALAN WILSON, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2022 CR 001059
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas Horton, Assistant
Prosecuting Attorney, for appellee.
George P. Montgomery, for appellant.
HENDRICKSON, J.
{¶ 1} Appellant, Scott Alan Wilson, appeals his conviction in the Clermont County
Court of Common Pleas for involuntary manslaughter under R.C. 2903.04(B). For the
following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} On January 5, 1985, Wilson caused serious physical harm to Hannah, the
Clermont CA2024-03-021
six-week-old infant daughter of his then-girlfriend Toni Thoroughman.1 Specifically,
Wilson shook Hannah causing severe brain trauma. Wilson was charged with felonious
assault and the case proceeded to trial. A jury found Wilson guilty of the lesser included
offense of assault under R.C. 2903.13(B), a misdemeanor, concluding that Wilson
recklessly caused Hannah serious physical harm. The trial court sentenced Wilson to six
months in jail and ordered him to pay a $1,000 fine.
{¶ 3} As a result of Wilson's actions, Hannah suffered from lifelong, debilitating
medical issues, rendering her immobile and unable to care for herself. Hannah was taken
care of by her grandmother until her grandmother died in November of 2006. Hannah
was then transferred to a nursing home where she died one month later.
{¶ 4} Hamilton County Deputy Coroner Dr. Michael Kenny conducted an autopsy
and concluded that Hannah died as a result of encephalopathy due to the late effects of
blunt impact to the head. Attached to the autopsy was a neuropathology report by Dr.
Greg Balko, a neuropathologist, concluding the same cause of death. The autopsy report
was sent to the prosecutor's office in the months following Hannah's death, but no charge
was filed.
{¶ 5} In 2022, Wilson filed a motion to seal the record of his 1985 conviction. The
assistant prosecuting attorney who reviewed the application then discovered the autopsy
report stating that Hannah had died. The Clermont County Prosecutor's Office and
Clermont County Sheriff's Office opened an investigation and were able to locate
Hannah's medical records from the time of her injury through 2005, Hannah's mother, a
nurse from the hospital who remembered Hannah's admission in 1985, one of the lead
investigators on the original case, and (eventually) Dr. Kenny. However, the records from
1. "Hannah" is a pseudonym, adopted in this opinion for purposes of privacy and readability. See In re
D.P., 2022-Ohio-4553 (12th Dist.), fn. 1.
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child protective services, as well as the transcript and exhibits from the original trial, were
no longer available as they had already been destroyed in accordance with county
records retention policies. Additionally, Dr. Balko and the arresting officer in the original
investigation had already died by the time the prosecutor's office began reexamining the
case in 2022.
{¶ 6} On December 1, 2022, the Clermont County Grand Jury indicted Wilson on
one count of involuntary manslaughter and one count of reckless homicide, each a felony
of the third degree. The state later dismissed the reckless homicide charge. On March
23, 2023, Wilson filed a motion to dismiss based on preindictment delay and a hearing
was held on April 13, 2023. The proceeding was continued in progress for the state to
locate Dr. Kenny to testify. Upon locating Dr. Kenny, the hearing resumed on September
27, 2023. Dr. Kenny recalled conducting the autopsy but could not recall why Dr. Balko
was contacted to examine Hannah's brain. Nevertheless, Dr. Kenny testified that Dr.
Balko's report did not influence his conclusion as to the cause of death. On October 12,
2023, the trial court denied Wilson's motion to dismiss, finding that he had not
demonstrated actual prejudice and that the state's delay in indictment was justifiable.
{¶ 7} The case proceeded to trial on January 22, 2024, however, after the state's
opening statement, Wilson entered a plea of no contest to the single count of involuntary
manslaughter. The trial court sentenced Wilson to serve two years in prison.
{¶ 8} Wilson now appeals his conviction, raising one assignment of error for our
review.
II. Legal Analysis
{¶ 9} Assignment of Error No. 1:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S
MOTION TO DISMISS BASED UPON PREINDICTMENT
DELAY VIOLATING APPELLANT'S DUE PROCESS
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RIGHTS UNDER BOTH THE FEDERAL AND OHIO
CONSTITUTIONS.
{¶ 10} In his sole assignment of error, Wilson asserts that the trial court erred by
denying his motion to dismiss based upon the state's delay in indicting him after the death
of Hannah. Wilson argues that the 16-year delay between the death of Hannah and the
indictment made it impossible for him to receive a fair trial and therefore violated his due
process rights under the Fifth, Sixth, and Fourteenth amendments to the United States
Constitution, as well as Article I Section 10, and Article I Section 16 of the Ohio State
Constitution.
{¶ 11} An unjustifiable delay between the commission of a criminal offense and an
indictment for that offense that causes actual prejudice violates an accused's right to due
process of law as provided by the United States and Ohio Constitutions. State v. August,
2019-Ohio-4126, ¶ 11 (12th Dist.), citing State v. Luck,
15 Ohio St.3d 150 (1984),
paragraph two of the syllabus. Nevertheless, the primary protection against stale charges
is the applicable statute of limitations. United States v. Lovasco,
431 U.S. 783, 789
(1977); State v. Jones,
2016-Ohio-5105, ¶ 11. In reviewing a claim of preindictment
delay, the court engages in a burden-shifting framework. Initially, the accused bears the
burden of establishing actual prejudice, then, the burden shifts to the state to provide
evidence to justify the delay. Jones at ¶ 13.
{¶ 12} Actual prejudice is determined by the circumstances of the case and
evidence is considered "as it exists when the indictment is filed" in relation to the prejudice
the defendant will suffer at trial due to the delay. State v. Walls, 2002-Ohio-5059, ¶
52. "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.
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{¶ 13} The prejudice advanced must be more than merely speculative. Id. at ¶
20; See also State v. Heath, 1997 Ohio App. LEXIS 351, at *5 (12th Dist. Feb. 3,
1997) (proof of actual prejudice must be specific, particularized, and non-
speculative). Appellant must show an exculpatory value of the alleged missing evidence
in establishing actual prejudice. State v. Fox,
2009-Ohio-556, ¶ 37 (12th Dist.). Any claim
of prejudice by a defendant must be balanced against the other evidence in order to
determine whether actual prejudice will impact the defendant at trial. Only if actual
prejudice will occur at trial will the court then determine whether the reason for the delay
is unjustified.
Id. A court will not presume prejudice merely because the delay exceeds
a particular length of time. State v. Adams,
2015-Ohio-3954, ¶ 98; accord
Fox at ¶ 37.
{¶ 14} Here, Wilson argues that he suffered actual prejudice from the delay in
indicting him due to the unavailability of certain witnesses and the destruction of
documentary evidence during the interim, and therefore the burden was shifted to the
state to prove the delay in indictment was justified. We disagree with Wilson. The
unavailable evidence can be divided into two categories, evidence regarding Wilson's
assault conviction in 1985, and medical evidence from 2006 at the time of Hannah's
death. We find that Wilson has failed to demonstrate actual prejudice from the
unavailability of evidence in either category.
Unavailable Evidence from 1985
{¶ 15} Wilson argues that he is prejudiced by the unavailability of certain witnesses
and records from his 1985 assault case. Specifically, the officer who arrested him in 1985
is deceased, one of the deputies involved in the original investigation was unable to be
located, the physician who treated Hannah at the hospital was unable to be located, and
Wilson's 1985 trial counsel is deceased. Additionally, the transcript of the trial, trial
counsel's file, police investigative records, and child protective services records from
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1985 are unavailable. However, Wilson offers no explanation how the records or
witnesses from the 1985 case would impact his ability to challenge the head trauma as
the proximate cause of Hannah's death in 2006. Thus, we find their usefulness to
Wilson's defense is merely speculative.
{¶ 16} Wilson was convicted in 1985 for assaulting Hannah and causing her
serious physical harm—this is a judicial fact which Wilson cannot contest or deny. In the
present case, Wilson was indicted for involuntary manslaughter in violation of R.C.
2903.04(B), which in pertinent part provides, "[n]o person shall cause the death of another
. . . as a proximate result of the offender's committing or attempting to commit a
misdemeanor of any degree . . . ." Therefore, the sole issue in the present case is whether
the injuries Wilson inflicted on Hannah in 1985 proximately caused her death in 2006.
{¶ 17} Wilson has failed to demonstrate how unavailable evidence from the 1985
investigation and subsequent trial bears on this medical question. Although the doctor
who treated Hannah in 1985 might have been able to provide some testimony on the
relation between Hannah's original injury and her death, Wilson makes no argument to
that effect, and what her testimony would have been is entirely speculative. Additionally,
the State was still able to locate a nurse involved in Hannah's treatment in 1985, and was
able to provide Hannah's medical records from her injury in 1985 through 2005, and
Wilson could have still developed his defense from that testimony and evidence. Wilson
has failed to demonstrate actual prejudice from the unavailability of evidence from 1985.
Unavailable Evidence from 2006
{¶ 18} Wilson also argues that he was prejudiced by the unavailability of evidence
from the time of Hannah's death in 2006. Wilson places primary emphasis on the
unavailability of Dr. Balko, who examined Hannah's brain during the autopsy in 2006 but
had died by the time the state indicted Wilson in 2022. Wilson also argues that he was
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prejudiced by the unavailability of records from Hannah's 2006 nursing home care and
hospice care. We disagree with Wilson.
{¶ 19} In his brief, Wilson asserts that Dr. Jason Heil, a neurologist he hired to
assist in his defense, was unable to render a complete opinion without Dr. Balko being
available to explain his methodology in his portion of the 2006 autopsy report. More
specifically, Wilson argues that Dr. Heil was hindered because Dr. Balko was not
available to explain why he did not document microscopic injuries to Hannah's brainstem
and cervical spine, areas which often show signs of trauma. However, from Wilson's own
argument, it seems that Dr. Heil was already able to attack the credibility of Dr. Balko's
report for Balko's failure to document microscopic injuries. Had Wilson proceeded to trial,
Dr. Heil could have made these criticisms without any direct rebuttal from Dr. Balko—to
Wilson's benefit—and perhaps this could have created reasonable doubt in the minds of
the jury. Thus, Wilson did not suffer actual prejudice from the unavailability of Dr. Balko
to defend his own report. See State v. Gulley, 1999 Ohio App. LEXIS 6091, at *10 (12th
Dist. Dec. 20, 1999) ("Prejudice will not be found due to the lack of non-exculpatory
evidence.").
{¶ 20} Wilson has also failed to demonstrate actual prejudice from the
unavailability of Hannah's 2006 records from the nursing home and from hospice care.
Wilson fails to identify any specific records that are missing and only generally speculates
that they would have been useful to his defense. Wilson has failed to demonstrate actual
prejudice from the unavailability of evidence from 2006.
{¶ 21} Wilson has not demonstrated how any unavailable evidence would
minimize or eliminate the impact of the state's evidence and bolster the defense, thus he
cannot demonstrate actual prejudice from the delay in indictment. As Wilson has failed
to demonstrate actual prejudice, we do not need to determine whether the State's delay
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in indictment was justified. Wilson's due process rights were not violated.
III. Conclusion
{¶ 22} We find the trial court did not err in denying appellant's motion to dismiss.
Appellant's assignment of error is overruled.
{¶ 23} Judgment affirmed.
BYRNE, P.J., and M. POWELL, J., concur.
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