State v. Benson

To establish that there was a violation of due process, a defendant must show "there was 'substantial, actual prejudice, ' and the focus of that inquiry is on ‘whether the delay violated our society’s fundamental conceptions of justice, fair play, and decency.” State v. Stokes, 350 Or 44, 64, 248 P3d 953 (2011).

Defendant was charged with first-degree rape, second-degree sexual abuse, and first-degree attempted sexual abuse following a bench trial. Prior to trial, defendant submitted a motion to dismiss on grounds of preindictment delay as there was gap of 91 months between the grand jury indictment and when the crime was reported. He assigned error to the dismissal of this motion, and also that the trial court should have merged second-degree sexual abuse and first-degree rape. Defendant argued his Due Process rights were violated by the delay, and that no valid reason was given about why the State waited to indict him. The State admitted that the trial court erred by not merging the two charges. However, the State contended that the Defendant had not met his burden of proof for the motion to dismiss to be granted. To establish that there was a violation of due process a defendant must show “there was ‘substantial, actual prejudice,' and the focus of that inquiry is on ‘whether the delay violated our society’ fundamental conceptions of justice, fair play, and decency. [State v. Stokes, 350 Or 44, 64, 248 P3d 953 (2011)]. And to establish actual prejudice, a defendant must be able to point to something in the record that would allow an inference that the lost evidence would have helped his case to establish actual prejudice.” The Court found that the Defendant did not meet this standard as there was no specific evidence to show that he was actually prejudiced as a result of the delay. The Court accepts the states admittance that the trial court was in error due to not merging the charges. Convictions for first-degree rape (Count 1) and second-degree sexual abuse (Count 2) reversed and remanded for entry of a judgment of a single conviction for first-degree rape; remanded for resentencing; otherwise affirmed.