WILMINGTON — A former Wilmington man asked a Clinton County court to dismiss charges of rape against him, or at the very least handle them separately from a charge of gross sexual imposition.
Devin Marshall, 37, of Wilberforce, was indicted in December for two counts of rape, both first-degree felonies, and a fourth-degree felony charge of gross sexual imposition.
The alleged rape victim was a 10- or 11-year-old girl when they allegedly occurred, between May 1, 2007 and Dec. 31, 2008. The victim of the alleged gross sexual imposition, which allegedly occurred in 2015, was a then-14-year-old girl.
The News Journal does not identify child victims of alleged sex crimes.
If convicted, each of the rape charges is punishable by a minimum of 10 years and a maximum of life imprisonment.
Marshall and his attorney, Jay Adams, asked Clinton County Court of Common Pleas Judge John W. “Tim” Rudduck to dismiss two charges of rape against Marshall. Adams said that Marshall’s rights to a fair trial were violated by a delay in bringing the rape charges against Marshall.
Marshall testified that he’d have friends and family over when the alleged victim was at Marshall’s home about nine years ago. Adams suggested those friends and family would have been able to testify to how he interacted with the alleged victim had the charges been brought against Marshall earlier.
“I have no idea,” where they are or how to contact them, Marshall testified. “It would take a miracle to remember everything.”
Marshall also testified that now he doesn’t know who or where the teachers and counselors around the victim are, and he said possible witnesses might remember less now than they did before.
“At this point in time, it’s hard to remember what you don’t remember,” Adams said. “And it’s hard to know where people are after this much time has passed.
“That’s prejudice,” Adams said. “He would have had the availability to find who out there would have something to testify too, that’s the prejudicial part.”
Michener asked if Marshall had any friends or family left from the 2007-2008 time period in question. Marshall named two. He also said he knew where one of them was.
“It sounds like there were quite a few people … who came over from time to time,” Michener said.
“Not on my side,” Marshall said, but several on a plaintiff’s side.
“If you had had sex with (a kid) would you remember that?” Michener asked.
“As a grown man, anybody who would have sex with a kid, how could you not remember it?” Marshall said.
Citing an Ohio Supreme Court case, Michener said a delay doesn’t warrant dismissal unless Marshall can demonstrate that the delay caused prejudice against his case. If Rudduck agreed that the delay was prejudicial, then another hearing would be scheduled for prosecutors and the defendant to argue why there was a delay and whether it produced actual prejudice – that it harms Marshall’s defense.
Adams and Marshall also asked the court to sever the rape charges from the charge of alleged gross sexual imposition – to separate the charges and treat them individually, including possibly having two trials.
After hearing Marshall’s testimony, Rudduck said he would give each side until July 8 to file post-hearing briefs before ruling on both motions. Rudduck said he would try to rule by the end of that month.
Rudduck also scheduled a jury trial for Sept. 20 at 9 a.m. The scope of that trial will be determined by Rudduck’s ruling on the motions.
Marshall is currently out of jail on a $25,000 cash surety bond. While out on bond, Marshall is forbidden from contacting the alleged victims, drink alcohol or use drugs of abuse.
Special prosecutor Paul Scarsella, from the Ohio Attorney General’s office, was also in the court room. Scarsella will replace special prosecutor Eric Michener, who is expected to leave the AG’s office in July.
Reach Nathan Kraatz at 937-382-2574, ext. 2510 or on Twitter @NathanKraatz.