State v. Benson

                                        58

   Argued and submitted January 13; decision of Court of Appeals affirmed,
   judgment of circuit court affirmed in part and reversed in part, and case
       remanded to circuit court for further proceedings July 14, 2022


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                  JOHN VIRGIL BENSON,
                    Petitioner on Review.
          (CC 17CR32143) (CA A168977) (SC S068495)
                                    

     After being charged with several crimes related to defendant’s sexual assault
of the victim, B, defendant moved to dismiss the case, arguing that his due process
rights were violated as a result of the 91-month preindictment delay. Defendant
argued that the preindictment delay contributed to the loss of an initial report of
the victim’s disclosure of the assault to a counselor at a treatment center and the
loss of memory of some witnesses. The trial court denied defendant’s motion after
determining that defendant did not establish substantial prejudice as a result of
the delay. Defendant was convicted, and the Court of Appeals affirmed the trial
court’s denial of the motion to dismiss. Held: Defendant failed to prove actual,
substantial prejudice as a result of the preindictment delay and, thus, there was
no violation of his due process rights.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for further proceedings.


   On review from the Court of Appeals.*
   Kali Montague, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
   Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, and Garrett, Justices, and Nakamoto, Senior Judge,
Justice pro tempore.…
______________
    * On appeal from the Linn County Circuit Court, Daniel R. Murphy, Judge.

, 

 (2021).
    … DeHoog, J., did not participate in the consideration or decision of this case.
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   NELSON, J.
   The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in
part, and the case is remanded to the circuit court for further proceedings.
60                                             State v. Benson

        NELSON, J.
        After receiving a report that defendant had sexually assaulted B, the police launched an investigation that
was subsequently halted. Seven and a half years later, after
the case was rediscovered during an “open case” search, a
grand jury indicted defendant for first-degree rape (ORS
163.375), second-degree sexual abuse (ORS 163.425), and
attempted first-degree sexual abuse (ORS 161.405, ORS
163.427). Prior to a bench trial, defendant moved to dismiss
on grounds of preindictment delay. The trial court denied
that motion, and defendant was found guilty on all charges.
         On review, defendant argues that his due process
rights were violated as a result of the preindictment delay.
He contends that he was prejudiced due to the delay because
the documentation of the victim’s initial disclosure had
been destroyed and the victim and the detective who initially investigated the case had lost memories of important
aspects of the early investigation that may have been used
to assist in defendant’s defense. Defendant maintains that
the trial court erred in denying his motion to dismiss. For
the reasons set forth below, we reject defendant’s claim of
error and, accordingly, affirm his convictions.
                          I.   FACTS
          The background facts are undisputed and are taken
from the record and the Court of Appeals opinion. In April
2009, B disclosed to a counselor at Rimrock Trails Adolescent
Treatment Center (Rimrock), located in Prineville, Oregon,
that defendant had sexually assaulted her 11 months earlier at a park in Lebanon, Oregon. At the time of the sexual
assault, B was 16 years old, and defendant was 21 years old.
         Following B’s disclosure, the Prineville Police Department was notified of the sexual assault. An officer from the
Prineville Police Department conducted an interview with B
on April 9. Shortly thereafter, on April 15, the case was transferred to Officer Weber of the Lebanon Police Department
and was assigned to Detective Martinez for investigation.
Weber provided Martinez with a short summary of the case
that generally referenced “a report from [the Prineville
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Police Department] of a possible rape” and stated that he
had “reviewed the details.” In addition, Weber attached a
detailed report from the Prineville Police Department that
included the interview of B and the names of potential witnesses. Weber’s summary did not include the name of the
counselor who made the initial call, or any report of that call
itself, and the Prineville Police Department report is not
part of the record.1 The Lebanon Police Department generated a report from the materials that included a crime code
designation of “Rape III—Under 16 … Stat[utory] Rape—
No Force.” It is not clear whether Weber or Martinez made
that designation.
         After the case was transferred to the Lebanon
Police Department, Martinez interviewed B and conducted
a follow up interview with a witness shortly thereafter. He
also attempted to locate defendant but was unable to do so.
The investigation apparently ceased within about a month
of the initial report. Martinez was unable to recall exactly
why the investigation ceased, but he did explain that around
the same time that he received the case assignment, he was
reassigned to patrol sergeant and “it was … a situation
that because of transitions and things like that, it appears
that somehow it was overlooked in the process and by incoming investigators.”
         In November 2016, the Lebanon Police Department
records department, which periodically searches old cases,
discovered this case in an “open-case search.” The case was
reassigned to Detective Padua, who reviewed the original
reports from both police departments and reopened the investigation. As a result of the ensuing investigation, defendant
was indicted on charges of first-degree rape, second-degree
sexual abuse, and attempted first-degree sexual abuse in
May 2017.
        Before trial, defendant moved to dismiss the indictment, contending that the delay of seven years and seven
months (totaling 91 months) violated his due process rights
under the Fifth and Fourteenth Amendments to the United

   1
     The record indicates that defendant did have a copy of the Prineville Police
Department report, but the report itself was not admitted into evidence.
62                                                             State v. Benson

States Constitution.2 Specifically, defendant asserted that
the Rimrock counselor to whom B reported the sexual
assault had prepared a report documenting B’s initial disclosure and that that document had been destroyed during
the 91-month delay. Defendant’s own investigator, Blehm,
testified that he had visited Rimrock to “find out what their
intake policies were” and “what they did when they [take]
somebody in.” Based on that visit to Rimrock, Blehm understood that a report would have been generated when B disclosed the sexual assault to her counselor, but he was unable
to procure the report. At that point in the hearing, the trial
court took judicial notice of OAR 415-054-0430(9), which
provides that drug and alcohol treatment records “shall be
kept for a minimum of seven years.” Blehm also testified
that he was unable to determine which Rimrock counselor
conducted B’s intake. When he visited Rimrock and spoke
with its staff, Blehm did not have a release from B that
would permit staff to discuss her case with him. Martinez
also testified at the hearing but could not recall the details
of his investigation after the case was transferred to the
Lebanon Police Department.
         To support the claim that his due process rights
were violated by the preindictment delay, defendant first
contended that the state was culpable for the delay because
it failed to produce any justification or explanation for its
cause. In addition, defendant argued that he was prejudiced
by that delay because he was not allowed an opportunity to
“examine and compare” the statements that B had made to
the Rimrock counselor at the time of her initial disclosure
with any of the later statements that B made to detectives,
explaining that B’s initial statements could have been “substantially different in character, considering the priorities
and purpose of revealing such personal information.”
        In response, the state conceded that the 91-month
delay may have been caused by its own negligence or recklessness, though the delay was not intentional. As to prejudice,
    2
      The Due Process Clause of the Fifth Amendment to the United States
Constitution provides, “No person shall … be deprived of life, liberty, or property
without due process of law[.]” Similarly, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution provides, “No state shall …
deprive any person of life, liberty, or property, without due process of law[.]”
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however, the state argued that defendant had failed to
establish actual, substantial prejudice, the required standard for a due process violation based on preindictment
delays, because defendant’s assertions about the contents of
the Rimrock report were speculative and there was no evidence that the report would have contained the type of information that defendant claimed would have helped his case.
         The trial court concluded that the state was “clearly
culpable in the delay” due to negligence by the Lebanon
Police Department, but agreed with the state that defendant’s claim of prejudice was speculative: “All of the witnesses are available, or at least there’s no evidence they’re
not available. And there’s no specific evidence that a witness
… would have remembered something back at the time of
the initial investigation and then failed to remember it.” The
court explained that it would have “to speculate about to
what extent or to what degree memory had been attenuated
as a result of the delay.”
         Defendant waived his right to a jury trial. The
court heard testimony that defendant forcibly raped B and
attempted to forcibly place his penis in her mouth. For
that conduct, defendant was convicted of first-degree rape,
second-degree sexual abuse, and attempted first-degree
sexual abuse. At sentencing, the trial court imposed a truelife sentence pursuant to ORS 137.719,3 based on two prior
convictions for sexual assault that defendant committed in
2011 and 2016, after the incident in this case.
         Defendant appealed, challenging the trial court’s
denial of his motion to dismiss as error.4 Defendant renewed
his argument that the 91-month delay violated his due
process rights and contended that the trial court erred in

     3
       ORS 137.719 provides that “[t]he presumptive sentence for a sex crime that
is a felony is life imprisonment without the possibility of release or parole if the
defendant has been sentenced for sex crimes that are felonies at least two times
prior to the current sentence.”
     4
       Defendant raised six assignments of error on appeal. The Court of Appeals
rejected four without discussion. State v. Benson, 

, 

 (2021). The other assignment of error—that the trial court erred in failing
to merge the guilty verdicts on Counts 1 and 2—was conceded by the state as
plain error and, on those counts, the Court of Appeals reversed and remanded for
resentencing. Benson, 

. That issue is not before us on review.
64                                            State v. Benson

concluding that he did not demonstrate actual, substantial
prejudice as a result of the delay. Specifically, defendant
argued that B’s credibility was crucial to the state’s case,
given that the case lacked physical evidence, and the missing Rimrock report could have been used to cross-examine
B “on any inconsistencies she might have from the initial
disclosure that preceded her testimony by nearly a decade.”
On balance, defendant argued that the actual prejudice
caused by the delay outweighed the justification for the
delay and, therefore, the trial court erred in denying his
motion to dismiss for due process violations. In response,
the state argued that defendant had failed to carry his burden of proving actual, substantial prejudice from the delay
because “it is unknown whether the counselor actually mentioned the disclosure in the report and, if so, what the counselor reported.” Given the state’s low level of culpability and
the minimal, speculative nature of prejudice to defendant
caused by the delay, the state argued that, on balance, there
was no violation of defendant’s due process rights.

         In a reply brief before the Court of Appeals, defendant raised one additional reason why, in his view, the
Rimrock report may have contained valuable impeachment
evidence and its unavailability prejudiced defendant’s ability to present an adequate defense. Defendant explained
that the report prepared by the Lebanon Police Department
initially classified the crime as third-degree rape with “no
force.” Because defendant was indicted more than 90 months
after the incident was first reported and was charged with
first-degree rape by forcible compulsion, “[h]aving the report
of the initial disclosure would have provided defendant
with, at a minimum, the counselor’s identity to question her
about that discrepancy, which defendant could have use to
impeach” B.

         The Court of Appeals began by examining cases
concerning when a preindictment delay violates a defendant’s Fifth and Fourteenth Amendment due process rights,
before turning to defendant’s asserted grounds of prejudice
in this case. State v. Benson, 

, 

 (2021). The Court of Appeals first explained that
the record supported—and neither party contested—the
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trial court’s finding that the state was culpable and negligent for the preindictment delay. Benson, 

.
The court then turned to the alleged prejudice from the loss
of the Rimrock report and concluded that defendant had not
met his burden of demonstrating actual, substantial prejudice because defendant’s arguments were “based on presumptions about the contents and quality of the report,” not
any evidence in the record that would support an inference
that the lost report would have assisted in his case. 

. Accordingly, the Court of Appeals held that, “despite
the state’s negligence in causing the delay, the trial court
did not err in denying defendant’s motion to dismiss.” 

.
         Defendant petitioned this court for review, advancing the same arguments that he had made before the Court
of Appeals. We allowed review, limited to the following issue:
   “Does a defendant establish ‘actual prejudice’ caused by a
   91-month pre-indictment delay when he shows that the first
   official report of the complainant’s disclosure is unavailable to him for impeachment purposes at trial and when
   the police report created at the same time contemplated a
   lesser degree of the charged crime?”
We specifically requested that the parties focus their arguments on the prejudice, if any, resulting from the loss of the
initial report made at Rimrock and the witnesses’ inability
to recall information.
                       II. ANALYSIS
         We review a trial court’s denial of a motion to dismiss based on a preindictment delay for errors of law. State
v. Davis, 

, 

 (2008). We are
bound by the trial court’s express and implicit factual findings so long as those factual findings are supported by evidence in the record. 

.
         The United States Supreme Court has recognized
that a preindictment delay may implicate a defendant’s Fifth
and Fourteenth Amendment due process rights. See United
States v. Lovasco, 

, 

, 

 (1977) (“[T]he Due Process Clause has a limited role
to play in protecting against oppressive delay.”). That said,
66                                                 State v. Benson

the “statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide the
primary guarantee against bringing overly stale criminal
charges.” 

 (internal citations and quotation marks
omitted). Due process violations caused by a preindictment
delay are unusual, but may be established where a defendant shows actual prejudice and government culpability in
the delay:
     “An indictment is rarely dismissed because delay by the
     prosecution rises to the level of a Fifth Amendment due
     process violation. The well-settled test for determining
     whether a defendant’s due process rights have been violated is in two parts. First, a defendant must prove that he
     suffered actual, non-speculative prejudice from the delay,
     meaning proof that demonstrates exactly how the loss of
     evidence or witnesses was prejudicial. The defendant’s burden to show actual prejudice is heavy and is rarely met.
     The second part of the test applies only if the defendant
     has demonstrated actual prejudice. In the second part, the
     delay is weighed against the reasons for it, and the defendant must show that the delay offends those fundamental
     conceptions of justice which lie at the base of our civil and
     political institutions.”
United States v. Barken, 

 (9th Cir 2005)
(internal citations and quotation marks omitted).
A.    Scope of Review of the Record
         We begin with a preliminary dispute between the
parties. Defendant and the state disagree about the proper
scope of this court’s review of the record based on the timing
of defendant’s motion. The state contends that review should
be limited to the record before the trial court at the time
of the motion. Because defendant made his motion before
trial and did not renew that motion at the close of the trial,
the state contends that appellate review must be limited to
the pretrial record. Defendant, on the other hand, argues
that this court should consider the entire record on review,
including the evidence at trial, to determine whether a
defendant was prejudiced by preindictment delay.
         The United States Supreme Court has indicated
that a reviewing court may consider the record that develops
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at trial in deciding whether the trial court should have dismissed an indictment for preindictment delay. United States
v. Marion, 

, 

, 

(1971). In Marion, the district court granted the defendants’
pretrial motion to dismiss due to preindictment delay.

. But, after considering the defendants’ arguments
that the delay generally may have caused memories to dim,
witnesses to become inaccessible, and evidence to be lost,
the United States Supreme Court disagreed with the trial
court and concluded that the defendants had not yet demonstrated the requisite prejudice to support the claims of due
process violations:
   “In light of the applicable statute of limitations, … 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.”

.
         Marion recognizes that actual, substantial prejudice to a defense is required to sustain a motion to dismiss
based on preindictment delay and that the events that occur
at trial may be a necessary part of the substantial prejudice analysis. As a general matter, the trial court will be in
the best position to evaluate the existence of prejudice after
the full trial has taken place. That is so because there is
no due process violation based on the preindictment delay
unless the defendant establishes prejudice that implicates
his right to a fair trial, and it may be difficult to make that
determination in most cases until after the trial occurs. As
a result, dismissal on that basis prior to trial will rarely be
appropriate. See U.S. v. Crouch, 

 (5th Cir
1996) (concluding as much).
         As those cases indicate, the answer to the question
in this case is that we review the trial court record in its
entirety. In doing so, we recognize that we have the benefit
of more information than the trial court did when it made
its initial determination. Had the trial court deferred its
ruling, that would have allowed that court to consider the
68                                           State v. Benson

issue of prejudice on a complete record. And, had defendant
renewed his motion at the conclusion of trial, that motion
would have alerted the trial court to reconsider. Those are
practices that the bench and bar may wish to consider in the
future. In particular, should a defendant seek dismissal on
a basis not articulated at the outset of a case, the defendant
may need to renew the motion to preserve the issue. Here,
however, preservation is not a bar to our consideration of the
record as a whole.
B.   Due Process Violation Based on Preindictment Delay
         We turn to the basis of defendant’s due process
claim. As explained above, the Supreme Court has explained
that dismissal of a case based on preindictment delay is
appropriate only where the defendant establishes actual,
substantial prejudice that outweighs the government’s reasons for the delay. See Lovasco, 

 (“[P]roof of
prejudice is generally a necessary but not sufficient element
of a due process claim, … the due process inquiry must
consider the reasons for the delay as well as the prejudice
to the accused.”). One question that the Supreme Court
has previously declined to answer is how the lower courts
should weigh the constitutional significance of the reasons
for delay. The Court has avoided setting out the level of government culpability required to establish a due process violation by preindictment delay, leaving “to the lower courts,
in the first instance, the task of applying the settled principles of due process that [it has] discussed to the particular circumstances of individual cases.” 

. This court
utilizes a balancing test that requires the lower courts to
“consider the government’s reasons for the delay, balancing
the prejudice to the defendant with the government’s justification for the delay.” State v. Stokes, 

, 

 (2011) (internal citations and quotation marks omitted).
Under that test, “[r]ecklessness or even negligence on the
government’s part may satisfy the … test, if actual prejudice to the defendant weighs substantially in the balancing.”

 at 57 (quoting United States v. Mays, 549 F2d 670, 678
(9th Cir 1977)). Thus, to succeed on a claim of a due process violation caused by a preindictment delay, a defendant
must “show that the delay actually prejudiced the defendant
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and that the government culpably caused the delay. A court
must weigh the government’s reason for the delay against
the prejudice to determine whether the delay violated our
society’s fundamental conceptions of justice, fair play, and
decency.” Id. at 64.
        With that legal background in mind, we turn to
the first prong of the balancing approach, considering
whether defendant met his burden of showing substantial
and actual—that is, nonspeculative—prejudice. That may
be established by proving “ ‘exactly how the loss of evidence
or witnesses was prejudicial.’ ” Davis, 

 (quoting Barken, 

). To guide our decision as to
whether defendant met that burden in this case, we turn to
two prior cases where this court has considered whether a
defendant’s due process rights were violated by a preindictment delay.
         This court first considered the effect of a preindictment delay on a defendant’s constitutional due process rights
in Davis, a case involving a double murder that occurred
in 1991. 

. After discovering the two victims
inside a hotel room, police began an investigation that initially implicated the defendant in that case. The defendant
provided the state with an alibi that was corroborated by
several witnesses and that placed him somewhere else at
the time of the murders. 

. It was not until more
than ten years later, in 2002, that a witness came forward
with information that the defendant had admitted to the
murders. 

. From that lead, the investigation
turned up new witnesses who provided information inculpating the defendant, and, after nearly 11 years, the defendant was charged in the case with multiple counts of aggravated murder. 

.
         Before trial, the defendant moved to dismiss the
case based on the preindictment delay, arguing that the
state “may have acted to gain tactical advantage” through
the delay and that the delay resulted in actual prejudice to
his ability to mount an effective defense because evidence
had gone missing during the delay. 

. The trial
court rejected those arguments, finding that the state was
not culpable in the 11-year delay and that the defendant had
70                                               State v. Benson

not met his burden to prove actual, substantial prejudice.

.
        On review, we affirmed the trial court’s denial of
the motion, finding that the defendant’s claims of prejudice
based on the unavailability of evidence were too speculative:
     “Those potential witnesses and possible items of evidence
     might have shed light on the case, and the light they shed
     might have been favorable to [the] defendant. Or they
     might have had no evidentiary value, or they might have
     bolstered the case against defendant. Either conclusion
     requires speculation. … Simply identifying items and
     information of undetermined evidentiary value that the
     police theoretically could have obtained does not satisfy
     [the] defendant’s burden to demonstrate actual prejudice.”

. Even assuming that some prejudice existed, we
explained, it would weigh very lightly in application of the
balancing test, but the state’s reason for the delay in that
case—“the need to sufficiently investigate the crimes and
obtain probable cause to bring charges”—would not tip the
scale in the defendant’s favor at all. 

.
          This court addressed the standards for establishing a due process violation caused by a preindictment delay
again in Stokes. In that case, the defendant was under
investigation for various sex crimes in Oregon, but the
state closed the investigation when the prosecutor learned
that the defendant would be serving a lengthy sentence in
California on unrelated charges. Stokes, 

. The
police retained evidence from the investigation for roughly
three years but then destroyed the case file. 

. That
case file included a recording of a victim’s 9-1-1 call, the contents of a rape kit, a victim’s clothing, and towels and clothing taken from the defendant’s house. 

         Subsequently, approximately eight years after the
Oregon investigation was closed, a prosecutor in the district
attorney’s office learned that the defendant’s California
conviction was reversed on appeal and that the defendant
possibly intended to return to live in Oregon. 

 The case
against the defendant was reopened and, eventually, he was
convicted of sexual assault charges. 

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         Before his trial, the defendant filed a motion to dismiss, arguing that the eight-year preindictment delay violated his due process rights, notwithstanding the nine-year
statute of limitations on the charges that he faced. Id. at
48. Specifically, the defendant contended that his ability to
defend himself was prejudiced by the destruction of evidence
in the police case file and the deaths of three potential witnesses that had occurred during the delay. Id. at 54-55. The
trial court denied the defendant’s motion, and the Court of
Appeals affirmed. Id. at 48.
         On review, this court affirmed that decision. Id. at
64. We examined the defendant’s claim of prejudice as it
related to how he claimed each piece of evidence would have
assisted in his defense. As to the rape kit, the victim’s clothing, and the towels and clothing taken from the defendant’s
home, we noted that
   “[p]resumably, defendant would contend that the rape kit,
   clothing, and towels may have been inconsistent with the
   state’s theory, although defendant does not offer a specific
   reason why the loss of that evidence was prejudicial. Indeed,
   without knowing the quality of that evidence, defendant
   can only speculate that it might have helped his defense.
   That speculation, however, is insufficient to demonstrate
   actual prejudice and cuts against defendant as sharply as
   it cuts in his favor.”
Id. at 60. We cited Davis to support that holding.
          We then considered the defendant’s claim that he
faced additional prejudice due to the deaths of three witnesses and the destruction of the 9-1-1 tapes. The defendant’s primary contention was that that evidence may
have shown that the victim had a calm demeanor following
the alleged assault, “rather than an agitated demeanor.”
Id. at 61. Again, we concluded that the defendant’s claim was
speculative, noting that the defendant did not point to any
evidence “supporting a conclusion that [the witness’s testimony] or the 9-1-1 tape was more likely to help rather than
hurt [the] defendant’s case. He can only speculate as to the
victim’s demeanor. Again, due process is concerned solely
with delay that is actually prejudicial.” Id. (emphasis in
original). Even if the defendant in Stokes had demonstrated
72                                                 State v. Benson

some amount of prejudice caused by the delay, it would not
have been sufficient to outweigh the lack of government culpability for the delay:
         “Contrary to defendant’s assertions, under these facts,
     the state was entitled to change its position regarding the
     danger that defendant posed to public safety over the course
     of eight years. The state did not close the case because it
     saw defendant as nonthreatening; it closed the case based
     on a conclusion that defendant’s California sentence minimized his threat and, in light of that, pursuing defendant’s prosecution in Oregon was not a good use of public
     resources. When the state’s initial calculation turned out
     to be incorrect, the statute of limitations had not yet run.
     The sequence of events was not ideal—evidence had been
     destroyed and, eight years after the initial dismissal of the
     charges, the case had not yet been resolved. But in terms
     of the reason for those events, the state’s actions do not
     demonstrate the government culpability and the degree of
     actual prejudice that violate due process.”
Id. at 63. Thus, this court affirmed the defendant’s convictions. Id. at 64.
         Those two cases are instructive here. Davis and
Stokes make clear that a defendant alleging a due process
violation based on a preindictment delay faces a high bar
to establishing actual, substantial prejudice. We have made
clear that the focus of the inquiry is on “whether the delay
violated our society’s fundamental conceptions of justice,
fair play, and decency.” Stokes, 

. The defendants
in both of those cases were unable to meet that burden with
regard to the prejudice component.
         This court has not examined a case where a defendant has met that burden, although one case from the Oregon
Court of Appeals has so held. In State v. Whitlow, 

, 

 (2014), the Court of Appeals concluded
that the defendant faced actual, substantial prejudice as a
result of a preindictment delay based on the unavailability
of the lead detective who initially investigated the case. The
defendant successfully argued that the charges against him
were based, in part, on testimony from a victim that included
more instances of abuse than those mentioned in the initial report and, without the availability of the detective to
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testify as to the thoroughness of his report, the defendant
was unable to cross-examine the victim about the inconsistencies in her claims. Id. at 345-46. That court concluded
that the defendant’s arguments were not speculative:
   “[U]nlike in Davis and Stokes, the nature and content of
   the ‘missing’ or ‘lost’ evidence, [the detective’s] putative
   testimony, and its utility to the defense, is far from ‘speculative.’ It is hardly ‘speculative’ to assume that an experienced detective would confirm the thoroughness of his
   or her interview with the complainant in a sexual abuse
   investigation and the comprehensive accuracy of the consequent investigative report. Nor is it speculative to posit that
   such first-person testimony by the principal investigating
   detective—as opposed to mere admission of the report
   itself—would likely powerfully buttress an implication of
   material inconsistency by the complainant.”
Whitlow, 

. The case against the defendant
was dismissed. 

. That decision is not binding on us,
of course, but it provides at least some guidance for understanding what may constitute actual, substantial prejudice.
        In this case, the primary question we must answer
is whether defendant demonstrated actual, substantial prejudice based on the loss of the Rimrock report or the faded
memories of B and Martinez. For the reasons discussed
below, we conclude that he did not, and thus, our inquiry
ends there.
         Defendant presents two primary arguments as to
how the loss of the Rimrock report undermined his ability
to present his defense. First, defendant argues that he was
prejudiced because he was unable to impeach the victim, B,
on cross-examination and did not have an opportunity to
question her inconsistent recollections of the incident. When
B first spoke with Martinez about the incident, she shared
that defendant had asked for a “blow job,” that she had
responded with “[y]ou know I’m only 16, right” and that the
two discussed how it is “not illegal if you don’t get caught.”
She said that there were four minutes that she could not
account for but then she noticed that defendant slightly penetrated her vagina with his penis. According to B, in that
report of the event, defendant then pushed her head toward
his penis, which she resisted, before he pushed her away.
74                                             State v. Benson

         At trial, B described the incident by testifying that
she and defendant had been at the park smoking marijuana
when “all of a sudden” defendant pushed her against the
table, trapped her, and inserted his penis inside her vagina.
B described resisting defendant’s advancements by squeezing her legs together and attempting to move away from
defendant. B testified that she repeatedly asked defendant
what he was doing and fought to resist defendant. B also
testified that, when defendant pushed her head towards his
penis in an attempt to force oral sex, B bit at his penis before
defendant backed off and left the park.
         Defendant claims that B’s two accounts of the incident support two inferences: First, that B’s initial disclosure
to the counselor at Rimrock likely described the events as
less violent than B’s testimony at trial because her narrative
progressively increased in severity and level of force used
over time, and, second, that B’s versions of events were, at
a minimum, inconsistent over time and the Rimrock report
would have been inconsistent with at least one of the versions presented. Defendant argues that, if he had had access
to the Rimrock report, he could have impeached B regarding
the inconsistencies in her story and could have challenged
the reliability of B’s disclosures. Finally, as to the victim’s
testimony, defendant contends that the Rimrock report
would have revealed the name of the counselor who took the
initial disclosure and defendant could have called that counselor as a witness to testify as to the specifics of B’s initial
disclosure.
        Defendant’s arguments regarding the missing Rimrock
report are too speculative to amount to actual, substantial
prejudice. As with the 9-1-1 report in Davis, or the lost evidence in Stokes, the Rimrock report in this case “might have
been favorable to defendant. Or [the report] might have had
no evidentiary value, or [it] might have bolstered the case
against defendant.” See Davis, 

. The information contained in the Rimrock report may have included a
detailed description of the events, but it is also possible that
the report contained nothing more than a general statement that B disclosed a sexual assault by defendant. The
Rimrock report may have helped defendant, or it may have
supported B’s testimony at trial, or it may have done neither.
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Importantly, Rimrock is a substance abuse treatment center, not a law enforcement agency, and the record provides
no information about the nature and extent of detail about
an alleged crime that typically would have been included in
an intake report at that center. Thus, there is no basis upon
which we can infer that the Rimrock report would more
likely than not have contained an amount of information
comparable to a police report, much less infer that it would
have been inconsistent with the later police reports that are
available on the record. Accordingly, defendant has failed
to demonstrate actual—not presumed or speculative—
substantial prejudice from the loss of the Rimrock report.

         Next, defendant alleges that he was prejudiced by
the preindictment delay because Martinez’s and B’s memories had faded as a result of the time between B’s report of
the sexual assault and defendant’s indictment. Defendant
claims that he was prejudiced by B’s faded memory at the
time of trial because she had difficulty recalling the details
of the incident and her possible interactions with defendant
after the assault occurred. Defendant also claims prejudice
as a result of Martinez’s faded memory. Defendant explains
that the case was initially assessed as “Rape III, under 16,
no force” but, because Martinez could not remember why it
was designated that way, defendant could not meaningfully
question Martinez about the discrepancy between the initial designation and the ultimate crime that he was charged
with.

          Defendant’s assertions regarding B’s faded memories are too speculative to amount to actual, substantial
prejudice. Defendant relies on alleged inconsistencies in B’s
testimony at trial about her possible interactions with defendant after the sexual assault occurred to suggest that those
details, if B had remembered them fully, would have allowed
defendant to question why B continued to voluntarily interact with defendant after the alleged assault. But defendant
fails to show that B’s testimony would have assisted his
defense or how her ongoing interactions with defendant were
inconsistent with her allegations of the details surrounding
the assault. As it relates to B’s memory, defendant’s arguments do not establish actual, substantial prejudice.
76                                          State v. Benson

         Defendant’s argument related to Martinez’s faded
memory is less tenuous. Defendant does not argue that
Martinez’s memory loss was a general loss of memory over
time, but instead that Martinez’s memory loss related to the
specific inconsistencies in the initial designation and the
ultimate charge, and he was unable to use that information
to undermine B’s credibility at trial.

         Defendant’s claim, however, still fails to amount
to actual, substantial prejudice. The record indicates that
someone initially designated the crime as “Rape III, under
16, no force,” but it is unclear who made that designation.
Even assuming that Martinez made that designation, it
would have been useful to defendant only if it could have
been based on information that supported it, and all of the
information that Martinez had—the Prineville report and
the recorded statements Martinez obtained from B—was
contrary to the designation. Moreover, defendant himself
had the information that Martinez had and has not pointed
to any basis to support the designation. Thus, whether
Martinez could recall the reason for the initial crime designation or not, defendant does not establish prejudice.
Defendant’s claims are speculative, at best, and he does not
meet the burden of establishing actual, substantial prejudice based on Martinez’s faded memory.

         Finally, the parties also disagree about how the
court ought to weigh the state’s level of culpability—
negligence—against the prejudice suffered by defendant
due to the preindictment delay. Because defendant did not
demonstrate the requisite actual, substantial prejudice
required to support his allegation of a due process violation
based on the preindictment delay, we need not resolve the
parties’ dispute as to that second question. See Barken, 

 (“First, a defendant must prove that he suffered
actual, non-speculative prejudice from the delay, meaning
proof that demonstrates exactly how the loss of evidence or
witnesses was prejudicial. The defendant’s burden to show
actual prejudice is heavy and is rarely met. The second part
of the test applies only if the defendant has demonstrated
actual prejudice.”). Our inquiry thus ends here.
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                    III.   CONCLUSION
         In sum, we conclude that defendant has failed to
meet his burden to establish that he was actually prejudiced
by the absence of the Rimrock report or Martinez’s faded
memories. Despite the state’s negligence in causing the substantial preindictment delay, we hold that the trial court did
not err in denying defendant’s motion to dismiss.
         The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for further proceedings.