STATE OF OHIO v. JON TROISI, ET AL.
Nos. 109871, 109874, 109875, and 109876
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 5, 2021
2021-Ohio-2678
SEAN C. GALLAGHER, P.J.
JUDGMENT: VACATED AND REMANDED. Case Nos. CR-19-643493-B, CR-19-643493-C, CR-19-643493-A, CR-19-643493-D. Criminal Appeal from the Cuyahoga County Court of Common Pleas.
JOURNAL ENTRY AND OPINION
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, Katherine E. Mullin, and Daniel T. Van, Assistant Prosecuting Attorneys, for appellant.
Thompson Hine, L.L.P., John R. Mitchell, and Jada M. Colon, for appellee Jon Troisi.
Synenberg & Associates, L.L.C., Roger M. Synenberg, and Matthew A. Kurz, for appellee Nicholas Troisi.
Taft, Stettinius & Hollister, L.L.P., Charles A. Bowers, Kathryn S. Wallrabenstein, and David H. Thomas, for appellees Andrew Steck and Martek Pharmacal
SEAN C. GALLAGHER, P.J.:
{1} The state, under
{2} The defendants were indicted on seven counts of drug trafficking based on aggregating bulk amounts of varying concentrations per dosage of Adipex Phentermine, Phendimetrazine, and Diethylpropion (collectively “drugs“) under
{3} The drugs, primarily used for weight loss, can be prescribed or furnished only by authorized licensed health professionals. “Licensed health professional authorized to prescribe drugs” or “prescriber” is defined as “an individual who is authorized by law to prescribe drugs or dangerous drugs or drug therapy related devices in the course of the individual‘s professional practice.”
{4} Martek is alleged to be a pharmaceutical wholesaler with a focus on obesity treatments. Steck owns Martek, and the Troisis are employees of the corporate entity. It is undisputed that the defendants are not “licensed health professionals authorized to prescribe drugs” or “prescribers,” but are wholesalers, meaning the defendants sell controlled substances to purchasers “in which the purpose of the purchaser is to resell the article purchased or received by the purchaser.”
{5} The state theorizes that defendants violated
{6} Upon the defendants’ motion, the trial court dismissed each count of the indictment with prejudice, concluding that the state failed to specifically identify the particular statutory section that the defendants violated by furnishing the large quantity of drugs to an individual prescriber, a quantity well beyond what they could lawfully furnish under
{7} Despite this assertion, Ohio courts have held otherwise. “The state is entitled to state a count in the indictment in bare statutory language.” State v. Armengau, 2017-Ohio-4452, 93 N.E.3d 284, ¶ 55 (10th Dist.), citing Crim.R. 7(B). If clarity is sought, the defendant may seek a bill of particulars “setting up specifically the nature of the offense charge and of the
{8} In this case, the state provided each defendant with full access to discovery materials and provided specific dates and conduct alleged to have violated
{9} The decision to dismiss an indictment is reviewed de novo. State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, ¶ 16. A de novo review requires an independent review, without any deference to the trial court‘s determination. Id. “When a defendant moves to dismiss an indictment, the threshold question is whether the trial court can determine the motion without reference to the general issue to be tried.” State v. Hitsman, 9th Dist. Medina No. 18CA0015-M, 2018-Ohio-5315, ¶ 15, citing State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 22, and State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 18. “If the allegations contained in the indictment constitute offenses under Ohio criminal law, it is premature to determine, in advance of trial, whether the state could satisfy its burden of proof with respect to those charges, and thus, a motion to dismiss must be denied.” State v. Swanson, 11th Dist. Ashtabula No. 2015-A-0006, 2015-Ohio-4027, ¶ 17, quoting State v. Kolat, 11th Dist. Lake No. 2001-L-117, 2002-Ohio-4699, ¶ 16, and State v. Medinger, 11th Dist. Portage No. 2011-P-0046, 2012-Ohio-982, ¶ 11. Thus, “a motion to dismiss based on a defect in the indictment ‘must not entail a determination of the sufficiency of the evidence to support the indictment‘“; the earliest point
{10} The allegations in this case constitute an offense under Ohio law. Under
{11} Under
{12} There is no dispute that the indictment recites the language of
{13} The defendants claim that
{14} The defendants’ challenge, therefore, is not actually against the indictment, which complies with Crim.R. 7(B) by reciting the precise statutory section under which the violation arose, but rather, the defendants are essentially asserting that the bill of particulars failed to provide the specific statutory or regulatory provisions that implicated
{15} An indictment, under Crim.R. 7(B), may simply provide a recitation of the particular statutory language implicated by the alleged criminal conduct and need not even provide the relevant statutory sections, but instead must simply put the defendant on notice of the crime charged and the elements necessary to proving the crime. Id. Instead of challenging the indictment directly, the defendants claim that the bill of particulars failed to provide the express provision under
{16} The state provided discovery documentation that included the specific transactions underlying the criminal allegations, thereby providing a corresponding time frame and the alleged conduct underlying the indictment. As other courts have concluded, if the bill of particulars sets forth the date of the alleged offense, the general nature of the alleged conduct, and the applicable criminal statute, then it is sufficient to fulfill its intended purpose. State v. Ericksen, 7th Dist. Carroll No. 18 CA 0928, 2019-Ohio-3644, ¶ 13, citing State v. Brown, 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 86-87. Further, when the bill of particulars satisfies the minimal threshold, the defendant‘s access to discovery through Crim.R. 16(A) adequately provides the defendant with sufficient information to enable a constitutionally adequate defense. Id.
{17} While the state is not required to detail its specific theory of prosecution, the state provided guidance as to how it intended to prove the predicate element of drug trafficking in this case.2 Specifically, among other claims, the state intended to demonstrate that the defendants failed to report the sales of the drugs to the Ohio Department of Pharmacy in contravention of the rules and regulations then in effect, which deprived the defendants of the protections under
{18} Under
{19} Based on Nucklos, we decline to apply State v. Hutton, 6th Dist. Lucas No. L-00-1285, 2002 Ohio App. LEXIS 753, 1 (Feb. 22, 2002), for the proposition that the state may not rely on administrative regulations to prove the defendants’ conduct was not in accordance with
{20} Likewise, we find State v. Simms, 4th Dist. Athens No. 01CA32, 2001-Ohio-2623, to be inapplicable for a similar proposition of law. In Simms, the state attempted to charge the defendant with a violation of
{21} Beyond the regulatory aspect of the drug-trafficking violation, the state theorized that the defendants essentially conspired to violate
{22} Even if we were to find that more specificity was required with respect to the bill of particulars and such a deficiency could be addressed in the motion to dismiss the indictment, the state provided the defendants the level of detail necessary to provide sufficient notice of the illegal conduct to be proven at trial. That there is a disagreement with the state‘s theory is not grounds to seek dismissal of an indictment. The Criminal Rules do not provide for a motion for summary judgment or other summary disposition based on the sufficiency of the potential evidence or the inadequacy of the state‘s theory of prosecution. S. Euclid v. Turner, 8th Dist. Cuyahoga No. 106642, 2018-Ohio-3798, ¶ 13, citing State v. Kalman, 2017-Ohio-7548, 84 N.E.3d 1088 (4th Dist.), and Katz & Giannelli, Baldwin‘s Ohio Practice, Criminal Law, Section 47:4 (3d Ed.). Whether the defendants’ conduct was in accordance with
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
KATHLEEN ANN KEOUGH, J., CONCURRING IN PART AND DISSENTING IN PART:
{23} Respectfully, I concur in part and dissent in part. Although the majority does not address the state‘s second argument that the trial court erred in dismissing the case with prejudice, I concur with its conclusion in footnote 1 that Crim.R. 48(B) does not provide for a dismissal with prejudice upon the arguments presented by the defendants in this case. Thus, I would find that the trial court erred in dismissing the indictment with prejudice.
{25} The record reflects that the state has continually changed its theory regarding how the defendants’ conduct was allegedly “not in accordance” with
{26} So what code section of
{27} But perhaps even more importantly, has the state‘s theory about defendants’ alleged wrongdoing changed since it asked the grand jury for an indictment? “[A] defendant has an inalienable right to be tried on the same essential facts on which the grand jury found probable cause.” State v. Parra, 8th Dist. Cuyahoga No. 95619, 2011-Ohio-3977, ¶ 38, citing State v. Vitale, 96 Ohio App.3d 695, 645 N.E.2d 1277 (8th Dist.1994). Under the state‘s ever-evolving theory of the case, it is not clear that the facts now relied upon by the state to support the defendants’ alleged violation of
{28} The state argues, and the majority agrees, that the state provided ample guidance as to its theory of the prosecution because the state provided each defendant with access to discovery materials that included the specific transactions underlying the criminal charges. But a defendant should not have to comb through the state‘s files to ascertain the theory of the state‘s case in order to determine what defense he needs to prepare, especially when the state‘s theory of the case keeps changing. This is particularly true in this case where the defendants asked for a more specific bill of particulars, but the state‘s response merely repeated the indictment, without giving any specific information as to dates and alleged offenses pertaining to each defendant other than the three-year time span already set forth in the indictment, or the statutory section or administrative code regulation the defendants allegedly violated.
{29} The majority concludes that “[u]ntil trial, it is purely speculation as to whether the defendants would be prejudiced by the alleged lack of specificity in the bill of particulars.” I wholly disagree. It is not speculative to conclude that the defendants are prejudiced in their ability to prepare for trial or present their defense when the state continues to change its theory as to how the defendants’ conduct was allegedly “not in accordance” with
{30} And although the state provided the defendants with documentation detailing the specific transactions that the state claims violated Ohio‘s drug-trafficking statutes, information about the dates and times of defendants’ conduct does nothing to advise how that conduct allegedly violated
{31} The majority concedes that the state “struggled with identifying the correct administrative code sections” the defendants’ conduct allegedly violated, but finds that the defendants’ conduct was not in accordance with
{32} Due process requires that the state give a criminal defendant fair notice of the charges against him to permit adequate preparation of his defense for trial. Although the state is entitled to state a count in an indictment in bare statutory language, I find that under the circumstances of this case, the defendants were prejudicially misled by the state‘s failure to set forth in either the indictment or an adequate bill of particulars the applicable statutory section in
{33} Accordingly, I dissent from the majority‘s decision reversing the trial court‘s dismissal of the indictment.