State v. RiversState v. Rivers
{¶ 2} The following facts give rise to this appeal. On March 26, 2003, thе Cuyahoga County Grand Jury returned a one-count indictment against Rivers charging aggravated burglary in violation of
{¶ 3} A jury trial commenced on July 22, 2003. At the close of the state's case, Rivers made an oral motion to dismiss, pursuant to
"This court finds that the defendant did have a right to bemade aware of the exact criminal offense that she purportedly hadthe purpose to commit when trespassing on the occupied structureof Sonia James. The court finds, again, the indictment isappropriate. However, the State's response to the bill ofparticulars failed to adequately inform the defendant of thecrime in total that she committed. I'm going to dismiss this cаsebased upon the defect in the bill of particulars."
{¶ 4} (Tr. at 11-12.)
{¶ 5} The state timely appeals this decision of the trial court and advances one assignment of error for our review.
{¶ 6} "I. The trial court erred by granting appellee's motion to dismiss based on inadequate bill of particulars."
{¶ 7} The standard of review for resolving this error is discretionary. We give substantial deference to the trial court unless we determine that the court's ruling was an abuse of discretion. State v. Tankersley (1998), Cuyahoga County App. Nos. 72398 and 72399. "The term abuse of discretion connotes more than error of law or judgment. It implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Nielsonv. Meeker (1996),
{¶ 8}
{¶ 9} As an initial matter we must address the timeliness of Rivers' motion to dismiss. The state alleges that Rivers' motion to dismiss was untimely made after voir dire and the court should not have considered the merits of the motion. Rivers argues that she raised the motion prior to trial in pretrial chambers, and that thе state failed to object when the motion was raised on the record at the close of the state's case.
{¶ 10} According to the record, the motion was made after the state rested its case. "Appellate review is strictly limited to the record." State v. Chapman, Cuyahoga County App. No. 73609,
{¶ 11}
{¶ 12} Under
{¶ 13} First, we find that while both parties seem to have been aware of the oral motion to dismiss, nothing was put on the record until after the state presented its case. Second, Rivers waived her right to raise the defect in the indictment and the bill of particulars when trial commenced. Third, the trial court should not have entertained this motion at the close of the state's case. While the state did not sрecifically say the word "objection," it did clearly indicate that pursuant to the rules of criminal procedure, the motion was not properly before the court and should not be considered by the court. Therefore, we find that the court abused its discretion by ruling on this motion which was not properly before the court.
{¶ 14} In additiоn, the state argues that it is not required to specify the criminal offense in the indictment or the bill of particulars when a defendant is charged with aggravated burglary in violation of
{¶ 15} "[A]n application for a bill of particulars is addressed to the sound discretion of the court. Wong Tai v.United States (1927),
{¶ 16} In a similar case to the case at bar, State v.Waszily (1995),
{¶ 17} This court went on to address a sub-argument, where Waszily argued that the bill of particulars did not give him fair notice of the specific charges, theft or felony, which formed the basis for the indictment. This court noted that "[a] reading of the bill of particulars in this case reflects a reiteration of the indictment with the addition of the date, time and location of the offense." Waszily,
{¶ 18} This court stated, "Appellant's understanding of the purpose of a bill of particulars is flawed. A bill of particulars purpose is to `particularize the conduct of the accused to constitute the charged offense.' State v. Sellards (1985),
{¶ 19} We note that Waszily was decided under the prior aggravated burglary statute in which the perpetrator was required to have the intent to commit a theft or a felony; however, the statute has been broadened to read "any criminal offense." A review of the legislative notes indicates that the statute was changed to emphasize the risk of personal harm in such offenses, rather than the time of day, type of property entered, and the offender's specific reason for entering, which was emphasized in the prior statute. While Waszily was decided under the prior statute, the holding and rationale still apply today. The state is not required to specify in the indictment or the bill of particulars the specific criminal offense the defendant had in mind.
{¶ 20} We recognize that many are frustrated because they view a bill of particulars as a mere formality adding little information to the material facts of a particular case; however, a bill of particulars does serve its limited purpose, which is to give formal notice of the offenses charged so that thе defense may prepare and avoid surprise or may intelligently raise alibi defenses, pleas of double jeopardy, or bar by the statute of limitations. In reality, defense attorneys often seek to use the bill of particulars as a "discovery" motion, while prosecutors consciously seek to limit responses to the fоrmalized "date, time and location" of the alleged crime. We are fully aware that the real issue at the heart of this dispute is the discovery process. Nevertheless, as stated previously, "A bill of particulars has a limited purpose — to elucidate or particularize the conduct of the accused allegеd to constitute the charged offense. * * * A bill of particulars is not designed to provide the accused with specifications of evidence or to serve as a substitute for discovery." State v. Sellards (1985),
{¶ 21} While much of the case law indicates that in a bill of particulars the state is only required to specify the date and time of the alleged сrime if it is known to the state, there may indeed be circumstances where additional information is relevant. The discovery of this information, however, must first be sought through an open and fair discovery process. The defense has the right to seek all relevant discoverable information, and the state has a duty to provide that matеrial.
{¶ 22} In the instant case, the bill of particulars recited the aggravated burglary statute verbatim, adding the date, time, and location of the incident. While naturally the defense may seek more, in this instance, in light of the detailed language of the statute, we find the information provided through the bill of particulars was sufficient to notify Rivers as tо the offense the state intended to prove. To conclude otherwise would allow the defense insight into the state's theory of the case, which is clearly not the purpose of the bill of particulars, nor was it the intent of the Ohio legislature when it enacted the aggravated burglary statute.
{¶ 23} A closer examination of Rivers' claim shows it actually questions the propriety of the broad language of the burglary statute rather than the use of the bill of particulars. Clearly, Rivers seeks a definite commitment on a specific underlying offense to the burglary statute by the state, something the legislature has declined to require. In this case, Rivers was in a better positiоn to know why she went over to the victim's house and the facts demonstrate she never contested that she went there.
{¶ 24} Rivers also argues that she has a right to be tried on the same essential facts upon which the grand jury based its indictment, and the state's failure to articulate the specific underlying criminal offense creates a risk that the defendant will be convicted of an offense on evidence not presented to the grand jury. Rivers cites State v. Vitale (1994),
{¶ 25} While we agree Rivers has the right to be tried on the same essential facts upon which the grand jury based its indictment, we do not agree that the case at bar fits into this category. In Vitale, the grand jury returned an indictment charging the defendant with theft, which was alleged to have occurred on June 14, 1991. Id. at 697. The bill of particulars indicated that the theft occurred on or about June 14, 1991, at approximately 12:00 p.m., at the location of 1869 East 79th Street in the city of Cleveland Id. The case was tried to the bench. Id. At the close of the state's case, the state moved tо amend the indictment and bill of particulars to read June 14, 1991 through June 21, 1991. Id. at 699. The court granted the motion over objection by defense counsel, and the defendant was ultimately convicted of theft. Id. The court specifically found that the theft occurred on June 21, 1991 at a location other than the location stated in the bill of particulars. Id. at 700. On appeal, this court reversed stating, "It must be presumed that the evidence presented to the grand jury was limited to the June 14 episode identified in the state's bill of particulars and not some other date, time or place to which no reference is made." Id.
{¶ 26} In the instant case, the grand jury indicted Rivers on the charge of aggravated burglary; therefore, the grand jury determined Rivers intended to commit "some" or "any" criminal offense. Specifying whether Rivers intended to threaten the victim, assault the victim, or steal something from the victim is not controlling. Based on the language of the indictment, the grand jury found that there was probable cause to beliеve that she trespassed with an intent to commit "any criminal offense."
{¶ 27} Indeed, it is well established that "the intent of an accused person is only in his mind and is not ascertainable by another, it cannot be proved by direct testimony of another person but must be determined from the surrounding facts and circumstances." State v. Huffman (1936),
{¶ 28} This court stated in State v. Hobbs, Cuyahoga App. No. 81533,
{¶ 29} Furthermore, in State v. Dimitrov, Cuyahoga App. No. 76986,
{¶ 30} We note for the record that the trial court's decision to grant the motion to dismiss was on legal grounds under
{¶ 31} The assigned error is sustained.
{¶ 32} The judgment is reversed and remanded for further proceedings consistent with this opinion.
Rocco, J., Concurs. Sweeney, P.J., Concurs in judgment only.
This cause is reversed and remanded to thе lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee costs herein.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.