{¶ 2} In January of 2006, the Logan County Grand Jury indicted Stout under a six count indictment, which included one count of Child Endangering in violation of R.C.
{¶ 3} Specifically, the indictment provided, in pertinent part:
COUNT II.
Jon C. Stout, between the dates of August 17, 2006 and October31, 2005, at the county of Logan aforesaid, did as a guardian,custodian, or person having custody or control, or person in locoparentis, of a child under the age of eighteen, to wit: date ofbirth 09/14/89; created a substantial risk to the health orsafety to the child under the age of eighteen years of age or amentally or physically handicapped child under the age oftwenty-one years of age by violating a duty of care, protection,or support, in violation of Ohio Revised Code §
{¶ 4} In February of 2006, the State filed a bill of particulars. Stout later filed a Crim.R. 12 motion to dismiss the aforementioned counts of the indictment. In his motion, Stout argued that the indictment was legally insufficient for failing to explain basic facts upon which his status of "in loco parentis" is based and that he is not a person in loco parentis under R.C.
{¶ 5} In March of 2006, the State filed a motion in opposition of Stout's Crim.R. 12 motion to dismiss and an amended bill of particulars. In its amended bill of particulars, the State provided:
Count Two:
On or about or between August 17, 2005 and October 31, 2005,the Defendant, Jon C. Stout, in Logan County, Ohio, did, as aguardian, custodian, or person having custody or control, orperson in loco parentis, of a child under the age ofeighteen, to wit: S.M. (DOB 9/14/89), created a substantial riskto the health or safety to the child under the age of eighteenyears of age by violating a duty of care, protection or support,in violation of ORC
{¶ 6} In April of 2006, Stout filed a reply to the State's opposition to his motion to dismiss. Subsequently, without hearing, the trial court granted Stout's Crim.R. 12 motion to dismiss.
{¶ 7} It is from this judgment the State appeals, presenting the following assignments of error for our review:
Assignment of Error No. I THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S PRE-TRIALMOTION TO DISMISS BECAUSE THE INDICTMENT AND AMENDED BILL OFPARTICULARS WERE LEGALLY SUFFICIENT TO GIVE THE DEFENDANT THENOTICE OF THE CHARGES AND PRESENTED THE BASIC FACTS IN SUPPORT OFTHE DEFENDANT'S STATUS AS IN LOCO PARENTIS; THE COURT LOOKEDBEYOND THE PLEADINGS IN DECIDING DEFENDANT'S MOTION TO DISMISS. Assignment of Error No. II THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT'S PRE-TRIALMOTION TO DISMISS BASED UPON FACTUAL DETERMINATIONS THAT SHOULDBE DECIDED BY THE TRIER OF FACT AT TRIAL. Assignment of Error No. I
{¶ 9} In its first assignment of error, the State argues that the trial court erred in granting Stout's pre-trial motion to dismiss. Specifically, the State asserts that the trial court erred because the indictment and amended bill of particulars were legally sufficient to put Stout on notice of the charges against him and presented the basic facts in support of Stout's status as in loco parentis and that the trial court erred when it looked beyond the pleadings in granting Stout's motion to dismiss.
{¶ 10} The mechanism governing pretrial motions to dismiss criminal indictments is found in Crim.R. 12(C). State v. Riley,
12th Dist. No. CA2001-04-095,
Pretrial motions. Prior to trial, any party may raise bymotion any defense, objection, evidentiary issue, or requestthat is capable of determination without the trial of thegeneral issue. The following must be raised before trial:
* * *
(2) Defenses and objections based on defects in theindictment, information, or complaint * * *.
(Emphasis added).
{¶ 11} The Ohio Rules of Criminal Procedure do not provide for the equivalent of a civil motion for summary judgment. Statev. McNamee (1984),
{¶ 12} In the case sub judice, both parties rely on the Ohio Supreme Court's decision in State v. Noggle,
2. Indictments based upon an alleged offender's status as aperson in loco parentis should at least state the very basicfacts upon which that alleged status is based.
Id. at paragraph two of the syllabus. Also, in its opinion, the Court provides:
Finally, ordinarily, an indictment against a defendant issufficient if it states the charge against the defendant in thewords of the statute. Crim.R. 7(B). However, in regard to thisparticular statute, the words used are not sufficient. The phrase"person in loco parentis" is a general phrase demandingspecificity. Indictments based upon the alleged offender's statusas a person in loco parentis should at least state the very basicfacts upon which that status is based.
In this case the amended bill of particulars served thepurpose of stating the basic facts supporting the allegation thatNoggle was a person in loco parentis. The fact that Noggle was ateacher and coach was insufficient to support an indictment basedupon R.C.
Id. at 34. Based upon Noggle, Stout argues that the indictment does not provide the very basic facts upon which his status as in loco parentis is based in the aforementioned counts. Conversely, the State argues that its amended bill of particulars meets Noggle's special pleading requirement, relying on the language in the Noggle decision, "In this case the amended bill of particulars served the purpose of stating the basic facts supporting the allegation that Noggle was a person in loco parentis." Thus, under the State's interpretation, we would be required to interpret the Court's Noggle opinion in conflict with its second paragraph of the syllabus.
{¶ 13} However, the purpose of a bill of particulars is to provide a defendant with greater detail of the nature and causes of the charges against him. State v. Lewis (1993),
{¶ 14} Therefore, we must reject the State's interpretation of Noggle and determine whether the indictment provided the "very basic facts" upon which Stout is alleged to be in loco parentis. We begin with the fifth and sixth counts of the indictment returned against Stout, which alleged that Stout committed sexual battery in violation of R.C.
COUNT V. Jon C. Stout, * * * did engage in sexual conduct with another,not his spouse, when the offender was the person in loco parentis* * *, to wit: cunnilingus with a child, date of birth 09/14/89* * *. COUNT VI. Jon C. Stout, * * * did engage in sexual conduct with another,not his spouse, when the offender was the person in locoparentis, * * * to wit: digital penetration with a child, date ofbirth 09/14/89 * * *.
{¶ 15} Upon review of the indictment, we cannot find that counts five and six of the indictment returned against Stout provided "the very basic facts" upon which his alleged status as a person in loco parentis is based. Accordingly, we find that counts five and six of the indictment did not comply with the special pleading requirement as stated in Noggle and that the trial court did not err in granting Stout's motion to dismiss with respect to counts five and six of the indictment returned against Stout.
{¶ 16} Next, we turn to the second count of the indictment returned against Stout, which alleged that Stout committed endangering children in violation of R.C.
COUNT II. Jon C. Stout, * * * did as a guardian, custodian, or personhaving custody or control, or person in loco parentis, of a childunder the age of eighteen, to wit: date of birth 09/14/89;created a substantial risk to the health or safety to the childunder the age of eighteen years of age * * * by violating a dutyof care, protection, or support.
{¶ 17} Upon review of the indictment, we note that the second count states the charge against Stout in the words of R.C.
{¶ 18} Having found that the trial court did not err in granting Stout's motion to dismiss with respect to the fifth and sixth counts of the indictment, but did err in granting Stout's motion to dismiss with respect to the second count of the indictment, the State's assignment of error is overruled in part and is sustained in part.
Assignment of Error No. II
{¶ 19} In its second assignment of error, the State argues that the trial court erred in granting Stout's motion to dismiss based upon factual determinations that should be decided by the trier of fact. Our disposition of the State's first assignment of error renders the second assignment of error moot and we decline to address it. App.R. 12(A)(1)(c).
{¶ 20} Having found no error prejudicial to Appellant herein in the particulars assigned and argued in the first assignment of error with respect to the fifth and sixth counts of the indictment against Stout, but having found error prejudicial to Appellant herein in the particulars assigned and argued in the first assignment of error with respect to the second count of the indictment against Stout, we affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part and CauseRemanded. Bryant, P.J., concurs. Shaw, J., concurs in Judgment Only.