THE STATE OF OHIO, APPELLEE, v. TROISI ET AL., APPELLANTS.
No. 2021-1182
Supreme Court of Ohio
October 11, 2022
Slip Opinion No. 2022-Ohio-3582
KENNEDY, J.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Troisi, Slip Opinion No. 2022-Ohio-3582.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3582
THE STATE OF OHIO, APPELLEE, v. TROISI ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Troisi, Slip Opinion No. 2022-Ohio-3582.]
Criminal law—Drug trafficking—
(No. 2021-1182—Submitted June 16, 2022—Decided October 11, 2022.)
APPEAL from the Court of Appeals for Cuyahoga County, Case Nos. 109871, 109874, 109875, and 109876, 2021-Ohio-2678.
{¶ 1} In this discretionary appeal from a judgment of the Eighth District Court of Appeals, we are asked to determine what constitutes adequate notice to inform a wholesale distributor of the charges brought against it under Ohio‘s drug-trafficking laws. Wholesale distributors are protected from prosecution for drug trafficking as long as they comply with the requirements of several chapters of the Revised Code, including
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The indictment
{¶ 2} Appellants are Martek Pharmacal Company, a wholesale distributor of prescription weight-loss drugs; its owner, Andrew Steck; and two of its employees, Jon Troisi and Nicholas Troisi. It is undisputed that Martek conducts business with pharmacies and physicians nationwide and that it does not sell its weight-loss medications directly to any patient or consumer. At all relevant times, Martek was a properly licensed wholesale distributor in Ohio. See
{¶ 3} In September 2019, in a seven-count indictment, appellee, the state of Ohio, charged appellants with drug trafficking from February 1, 2014, to February 28, 2017. Five counts alleged violations of
{¶ 4} Because appellants are in the business of wholesale distribution, they were necessarily involved in selling or offering to sell controlled substances,
{¶ 5} Therefore, in order for
B. Bill of particulars
{¶ 6} The state provided a bill of particulars to appellants, but it essentially rephrased the language of the indictment and contained no specifics regarding how appellants had failed to comply with
{¶ 7} On March 9, 2020, at the hearing on the motion for a more specific bill of particulars, appellants argued that the state had “not met its burden to provide a bill of particulars that properly informs each [appellant] of the nature of the crimes they‘re charged with, as well as the specific acts and instances that make up that criminal activity.” The trial court asked the state what part of
C. Motion to dismiss
{¶ 8} Appellants filed a motion to dismiss the indictment on March 3, 2020. Among other arguments, they asserted that the state had violated their rights to notice of the accusations against them, a fair trial, and due process of law. They argued that they had the “right to be informed of the nature and cause of an accusation, including the elements of the offense charged.”
{¶ 9} The court held a hearing on the motion on June 22, 2020. Again, the state had difficulty informing the court how appellants had failed to comply with
{¶ 10} Instead, it pointed to
D. Trial court‘s entry
{¶ 11} On July 28, 2020, the trial court granted appellants’ motion to dismiss, stating:
The issue here is whether the state has provided to defendants the specific statute under
Chapter 4729 that defendants have allegedly violated. That is not something that defendants should be surprised about at trial. It must be included in the indictment or in combination with the bill of particulars which has been requested on more than one occasion by defendants. The state has been unable to produce the applicable statutory authority, even when this court gave additional time after the hearing on the motion to dismiss the indictment to supplement the record with the statutory provisions defendants allegedly violated and that are applicable to defendants.The court finds that the state‘s failure to provide defendants with sufficient notice of the charges violates defendants’ constitutional right to due process.
For the foregoing reason, case is dismissed with prejudice.
E. Appeal to the Eighth District
{¶ 12} The state appealed as of right under
by the predicate element under
{¶ 13} The Eighth District noted that the state‘s failure to provide specificity within the bill of particulars is not generally grounds for dismissal. In order to prevail on a motion to dismiss for lack of specificity in the bill of particulars, appellants were required to show prejudice—i.e., that the lack of specificity kept them from preparing and presenting a defense. Id. at ¶ 15. The court stated: “Until trial, it is purely speculation as to whether the defendants would be prejudiced by the alleged lack of specificity in the bill of particulars.” Id.
{¶ 14} The appellate court opined that, to prove appellants’ noncompliance with wholesale distributors’ reporting requirements under
{¶ 15} One judge, dissenting in part, concentrated on the shifting theories of the state:
The defendants should not be expected to defend against an entire chapter of the Revised Code and all of the administrative code regulations promulgated thereto. The state presumably knows what code section or regulation it presented to the grand jury as evidence of the defendants’ alleged violation of R.C. Chapter 4729 , but it did not provide that information in a “to wit” clause in the indictment, and when given an opportunity to provide the information in a more specific bill of particulars, it again did not do so. The only logical question is “why not“? The idea, as posited by the majority, that a
defendant facing a felony charge may be denied the ability to defend against the specific allegations against him because the state complied with some other procedural burden (here, discovery) cannot be squared with the Ohio Constitution‘s guarantee of due process.
2021-Ohio-2678 at ¶ 30 (Keough, J., concurring in part and dissenting in part).
{¶ 16} This court accepted jurisdiction over appellants’ discretionary appeal. Appellants raise two propositions of law:
Proposition of Law I: The Ohio and United States Constitutions require notice of the statute that a wholesale distributor allegedly violated to lose its exemption from drug trafficking laws in order for the State to charge the distributor with drug trafficking.
Proposition of Law II: For a wholesale distributor to lose its exemption from drug trafficking laws, its conduct must violate a statute in
Chapter 4729 of the [Revised Code] .
See 165 Ohio St.3d 1477, 2021-Ohio-4289, 177 N.E.3d 993.
II. LAW AND ANALYSIS
A. Standard of review
{¶ 17} Generally, this court reviews a trial court‘s decision on a motion to dismiss an indictment for abuse of discretion. State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7. But appellants raise a question of law—whether the state failed to provide notice of the charges against them in violation of the Due Process Clauses of the Ohio and United States Constitutions so we
review the trial court‘s decision de novo. See State v. Mutter, 150 Ohio St.3d 429, 2017-Ohio-2928, 82 N.E.3d 1141, ¶ 13.
B. The role of R.C. Chapter 4729 in drug-trafficking cases
{¶ 18} For those involved in the wholesale drug industry,
The state cannot convict a licensed health professional of trafficking in drugs under
R.C. 2925.03(A) unless the licensed health professional has failed to comply with applicable statutory or regulatory requirements.R.C. 2925.03(B)(1) . Proving
noncompliance is therefore necessary to prove the offense of drug trafficking when a licensed health professional is charged. * * * [A] licensed health professional‘s failure to comply with statutory or regulatory requirements is an element of the offense of drug trafficking that the state must prove beyond a reasonable doubt.
(Emphasis sic.) Nucklos at ¶ 21.
{¶ 20} Therefore, the state must prove in this case that appellants’ conduct was not in accordance with
C. The requirements of an indictment
{¶ 21} Under
defining the offense, also enables an accused to protect himself from any future prosecutions for the same offense.” Id. We are concerned in this case with the first purpose, the state‘s duty to provide adequate notice and an opportunity to defend.
{¶ 22} “An indictment meets constitutional requirements if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the
{¶ 23} Crim.R. 7(B) sets forth the following requirements for an indictment:
The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.
{¶ 24} This court has held that generally,
an indictment that tracks the language of the charged offense and identifies a predicate offense by reference to the statute number need not also include each element of the predicate offense in the indictment. The state‘s failure to list the elements of a predicate offense in the indictment in no way prevents the accused from receiving adequate notice of the charges against him.
State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 11. In Buehner, this court held that an indictment‘s reference to the statute number of a predicate offense provides sufficient notice to a defendant.
{¶ 25} The state may amend an indictment to provide the necessary information. “Under Crim.R. 7(D), a court may amend an indictment ‘at any time’ if the amendment does not change ‘the name or identity of the crime charged.‘” State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. “As long as the state complies with Crim.R. 7(D), it may cure a defective indictment by amendment, even if the original indictment omits an essential element of the offense with which the defendant is charged.” State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15. “Courts cannot grant new trials based upon imperfection or inaccuracy in an indictment if the charge is sufficient to fairly and reasonably inform the defendant of the essential elements of the crime.” State v. Landrum, 53 Ohio St.3d 107, 119, 559 N.E.2d 710 (1990), citing Crim.R. 33(E)(1).
D. The purpose of a bill of particulars
{¶ 26} The state did provide a bill of particulars to appellants in this case. “A bill of particulars has a limited purpose—to elucidate or particularize the conduct of the accused alleged to constitute the charged offense.” Sellards, 17 Ohio St.3d at 171. A bill of particulars can put a defendant on notice of the charges he or she faces. See State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 32. “[W]hen the indictment sufficiently tracks the wording of the statute of the charged offense, the omission of an underlying offense in the indictment can be remedied by identifying the underlying offense in the bill of particulars.” Buehner at ¶ 10, citing Skatzes at ¶ 30. “A bill of particulars * * * is appropriately supplied where the indictment, although legally sufficient in describing the elements of the charged offense, is so general in nature that the accused is not given a fair and reasonable opportunity to prepare his defense.” State v. Gingell, 7 Ohio App.3d 364, 367, 455 N.E.2d 1066 (1st Dist.1982).
{¶ 27} The state had ample opportunity to amend the indictment against appellants. The indictment let appellants know the drug-trafficking laws they were accused of violating,
{¶ 28} The indictment told appellants only that they had acted in contravention of
{¶ 29} This case presents a question similar to the one we addressed in State v. Childs, 88 Ohio St.3d 194, 724 N.E.2d 781 (2000). In that case, the state alleged that Childs had engaged in a conspiracy to commit aggravated trafficking. For a conspiracy charge, the state must prove that ” ‘subsequent to each defendant‘s entrance into said conspiracy, a substantial overt act was done by each defendant or a person with whom they conspired; contrary to the form of the statute.’ ” (Emphasis added.) Id. at 197, citing former
{¶ 30} Although the indictment alleged that “a substantial overt act was done by each defendant or a person with whom they conspired,” it did not specifically detail any overt act done in furtherance of the conspiracy. Id. at 197-198.
Instead, the phrase “a substantial overt act was done” merely recited the generic words of the statute. Id. at 198. This court found the indictment in Childs was “fatally defective” because the state needed to “allege some specific, substantial, overt act performed in furtherance of the conspiracy.” Id. at 197.
{¶ 31} Likewise here, the state accused appellants of acting “not in accordance with
{¶ 32} The burden was on the state to prove that the exception from criminal liability in
{¶ 33} Although the omission of an underlying offense in an indictment can be remedied by identifying the underlying offense in the bill of particulars, that did not occur in this case. Neither the bill of particulars nor the limited amount of discovery provided information about which provision
{¶ 34} Further, the state‘s failure to identify how appellants failed to act in accordance with
for a more detailed bill of particulars that appellants had failed to act in accordance with
{¶ 35} At the hearing on the motion to dismiss, the state argued that appellants had the duty to report suspicious purchases under
{¶ 36} Instead, in its posthearing brief, the state cited
{¶ 37} “Where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court * * * as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury.” State v. Headley, 6 Ohio St.3d 478, 478-479, 453 N.E.2d 716 (1983),
citing Harris v. State, 125 Ohio St. 257, 264, 181 N.E. 104 (1932); State v. Wozniak, 172 Ohio St. 517, 520, 178 N.E.2d 800 (1961); see also
{¶ 38} The state did not notify appellants of what they had done to become noncompliant with
F. Dismissal with or without prejudice
{¶ 39} “Pursuant to
{¶ 40} Here, the trial court erred when it dismissed the indictment with prejudice. “It has been held that ‘since neither Crim.R. 48(A) nor Crim.R. 48(B) expressly provides for a dismissal with prejudice, a dismissal * * * with prejudice may be entered only where there is a deprivation of a defendant‘s constitutional or statutory rights, the violation of which would, in and of itself, bar further prosecution.’ ” State v. Mills, 11th Dist. Trumbull Nos. 2020-T-0046 and 2020-T-0047, 2021-Ohio-2722, ¶ 6, quoting State v. Jones, 2d Dist. Montgomery No. 22521, 2009-Ohio-1957, ¶ 13; see also State v. Sutton, 64 Ohio App.2d 105, 108, 411 N.E.2d 818 (9th Dist.1979). Although appellants’ constitutional rights are involved here, the state could reindict appellants and further prosecution would not be barred. Dismissals with prejudice are more appropriate for cases involving the
deprivation of a defendant‘s rights to a speedy trial or against double jeopardy, which would preclude further proceedings. See State v. Michailides, 2018-Ohio-2399, 114 N.E.3d 382, ¶ 37 (8th Dist.); State v. Dunn, 8th Dist. Cuyahoga No. 101648, 2015-Ohio-3138, ¶ 22.
III. CONCLUSION
{¶ 41} ” ‘No door, however remote and uncertain, ought to be closed to an accused engaged in the task of preparing a defense to a criminal charge. Clearly it is wisest to err on the side of openness and disclosure.’ ” Sellards, 17 Ohio St.3d at 171, quoting Gingell, 7 Ohio App.3d at 368.
{¶ 42} “The exercise of good faith on the part of the prosecution is essential in maintaining public trust and confidence in the integrity of our criminal justice system. Adherence to the above-stated rule will insure that no constitutional right of an accused to due process or a fair trial will be transgressed.” Id. at 171-172.
{¶ 43} The Due Process Clauses of the Ohio and United States Constitutions require a felony indictment to set forth the “nature and cause of the accusation.” In a drug-trafficking case against a wholesale distributor under
{¶ 44} Because the state failed to identify the nature and cause of the accusation against appellants in these cases, the indictment must be dismissed without prejudice. We therefore reverse the judgment of the Eighth District Court of Appeals, and we remand the matters to the trial court with instructions that it vacate its dismissal with prejudice and enter a dismissal without prejudice.
Judgment reversed and causes remanded.
Michael O‘Malley, Cuyahoga County Prosecuting Attorney, and James A. Gutierrez, Katherine Mullin, and Daniel T. Van, Assistant Prosecuting Attorneys, for appellee.
Taft, Stettinius & Hollister, L.L.P., Charles A. Bowers, Aaron M. Herzig, William E. Braff, David H. Thomas, and Kathryn S. Wallrabenstein, for appellants Martek Pharmacal Company and Andrew Steck.
Brian Radigan, for appellant Nicholas Troisi.
Taft, Stettinius & Hollister, L.L.P., and John R. Mitchell, for appellant Jon Troisi.
Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant Public Defender, urging reversal for amicus curiae, Office of the Public Defender.