State v. Choudri , 2023 Ohio 4476 ( 2023 )

[Cite as State v. Choudri, 2023-Ohio-4476.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-22-70
PLAINTIFF-APPELLEE,
v.
MARYUM CHOUDRI, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 22-CR-006
Judgment Affirmed
Date of Decision: December 11, 2023
APPEARANCES:
Kyle Phillips for Appellant
Raymond A. Grogan, Jr. and Martha Schultes for Appellee
Case No. 9-22-70
MILLER, P.J.
{¶1} Defendant-appellant, Maryum Choudri (“Choudri”), appeals her
conviction for trespass-in-a-habitation, in violation of R.C. 2911.12(B), following a
jury trial in the Marion County Court of Common Pleas. Choudri argues the trial
court erred in denying her Crim.R. 29 motion to dismiss; entering judgment against
her because the verdict was not supported by the manifest weight of the evidence;
and permitting the State to advance an alleged “new theory” after the close of the
State’s case-in-chief. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
A. Choudri’s Actions Concerning the Premises
{¶2} Although she lived in New York, Choudri was the landlord for a house
located at 507 Silver Street in Marion, Ohio. William Brammer (“Brammer”) was
the tenant.1 In or around September of 2021, Brammer complained to Choudri that
the hot water tank at the house was broken. Choudri told Brammer to arrange for
someone to fix it and then she would wire money for the repair.
{¶3} On December 29, 2021, after not hearing anything further from
Brammer and not receiving rent, Choudri decided to visit the rental property for the
first time. Although she was unsuccessful in notifying Brammer of her intended
visit, she left her home in New York and drove to the rental property in Marion,
1
No lease agreement was entered into evidence at trial.
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Ohio. Significantly, Choudri made two separate entries into the house on that day.
Regarding the first entry, she gained admittance into the residence and spoke with
Brammer about the hot water tank. At some point thereafter, a physical altercation
ensued between Choudri and Brammer, after which she exited the house. The
details of the first entry—including whether Brammer had invited Choudri into the
house, why the physical altercation happened, whether Choudri touched or grabbed
Brammer, and whether she was thrown down the front porch stairs by Brammer—
involved disputed evidence at trial.
{¶4} Before the second entry, Choudri called 911 multiple times. In
response to the 911 calls, Officer Dana Jagger of the Marion City Police Department
(“Officer Jagger”) came to the house. As Officer Jagger approached the house, she
saw Choudri on the front porch kicking the front door. As shown on Officer
Jagger’s bodycam video (which was played during the trial and admitted into
evidence as State’s Exhibit 1), Choudri told Officer Jagger she owned the house and
Brammer had thrown her down the porch stairs in front of the house. Officer Jagger
instructed Choudri to come to another location in the front yard so they could talk
outside the presence of Brammer (who came onto the porch once Officer Jagger
arrived). However, Choudri responded to Officer Jagger’s instruction by walking
back onto the porch saying, “I have to use the restroom, I’m gonna go in my home
and use that.” At that point, Brammer was standing in the doorway, blocking entry
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to the house, and closing the door, all while repeatedly saying he did not want
Choudri to come into his house.
{¶5} While Officer Jagger was continuously instructing Choudri to stop,
Choudri touched Brammer and pushed past him to get into the house. Upon entering
the house, Officer Jagger told Choudri she would be put into handcuffs, to which
Choudri responded, “Okay, fine.” After Choudri continued through the front room
of the house, she was stopped by Officer Jagger and a second police officer. A
struggle ensued, with the officers eventually bending Choudri over a table in the
front room to handcuff her. Once Choudri had been removed from the house by
other officers, Brammer told Officer Jagger on her bodycam video that Choudri was
a “slum landlord”; he refused to pay rent until she fixed the hot water; Choudri owns
the house but did not belong there and did not live there; Choudri had kicked his
front door and—while he pointed to the ground in the entranceway—she had just
damaged his phone; and, during the first entry, Choudri had physically thrown his
cat out of the house and punched him in the nose.
B. Indictment, Trial, Conviction, and Sentencing
{¶6} On January 5, 2022, Choudri was indicted on three counts: (1)
Aggravated Burglary in violation of R.C. 2911.11(A)(1); (2) Burglary in violation
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of R.C. 2911.12(A)(2); and (3) Obstructing Official Business in violation of R.C.
2921.31(A).2 Regarding Counts 1 and 2, the Indictment stated:
Count One Aggravated Burglary – F1 § 2911.11(A)(1),
2911.11(B)
Defendant Maryum Choudri
Date of Offense On or about December 29, 2021
did, by force, stealth, or deception, trespass, as defined in section
2911.21(A)(1) of the Revised Code, in an occupied structure or in a
separately secured or separately occupied portion of an occupied
structure, when Tina Frost [Brammer’s daughter] and William
Brammer, a person other than the accomplice, was present, with
purpose to commit in the structure or in the separately secured or
separately occupied portion of the structure any criminal offense, to
wit: Criminal Damaging, RC 2909.06(A)(1), and the offender
inflicted, or attempted or threatened to inflict physical harm on
William Brammer.
Count Two Burglary – F2 § 2911.12(A)(2), 2911.12(D)
Defendant Maryum Choudri
Date of Offense On or about December 29, 2021
did, by force, stealth, or deception, trespass in an occupied structure
or in a separately secured or separately occupied portion of an
occupied structure that is a permanent or temporary habitation of any
person when any other person, not the accomplice of the offender
was present or likely to be present, with purpose to commit in the
habitation any criminal offense, to wit: Criminal Damaging, RC
2909.06(A)(1).
(Indictment).
2
Count 3 is not germane to this appeal.
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{¶7} On January 27, 2022, the State supplied a bill of particulars at
Choudri’s request. Counts 1 and 2, the Bill of Particulars repeated the same
language as the Indictment, although the Bill of Particulars additionally identified
the location of the offenses as being at 507 Silver St., Marion, OH 43302. Also on
January 27, 2022, the State responded to Choudri’s request for discovery. As part
of its discovery response, the State delivered to Choudri four officer bodycam
videos, including the one from Officer Jagger that had recorded (among other
things) Officer Jagger’s arrival at the house, Officer Jagger’s discussion with
Choudri outside the house, Choudri’s second entry into the house, the removal of
Choudri from the house, and the discussion between Officer Jagger and Brammer.
On October 31, 2022, the State supplemented its response to Choudri’s request for
discovery, delivering to Choudri three recordings of the 911 calls.
{¶8} It appears from the transcripts that the parties submitted proposed jury
instructions prior to trial. (See Oct. 17, 2022 Tr. at 5-6 (trial judge requesting the
parties submit proposed jury instructions two days prior to trial); Nov. 1, 2022 Tr.
at 369-70; Nov. 2, 2022 Tr. at 441-42). The parties did not want jury instructions
regarding a lesser-included offense for Count 1, but they both desired jury
instructions regarding a lesser-included offense of trespass-in-a-habitation for
Count 2. (Nov. 2, 2022 Tr. at 441-42).
{¶9} The matter proceeded to a three-day jury trial starting on November
1, 2022. Both parties discussed Choudri’s second entry into the home during
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opening statements. Choudri’s counsel told the jury that: Brammer tried to keep
Choudri from walking back into the house; Choudri was trying to avoid Brammer
and get through the house so she could use the bathroom to urinate; Brammer
dropped his phone and it fell to the porch; and “[a]ll that’s gonna be in evidence for
you to see.” (Nov. 1, 2022 Tr. at 209). Choudri’s counsel also said the following
during opening statements: “At all points in time, Miss Choudri had privilege to be
there, had a duty to be there by law, because she’s the landlord that has to fix things,”
she “[n]ever trespassed on the property,” and she “never committed any criminal
offenses inside the property.” (Id. at 212-13).
{¶10} The State called Brammer as a witness during its case-in-chief.
Regarding the first entry, he testified that Choudri knocked on the front door, he
opened it, and she shoved her way into the house. (Nov. 1, 2022 Tr. at 227-28).
According to Brammer, he did not invite her into the house. (Id.) Regarding the
second entry, Brammer testified that, after the police showed up, Choudri tried to
force her way back into the house. (Id. at 219). Brammer testified a “brawl” ensued
between Choudri and the police, and “[t]hat’s when she broke my phone.” (Id. at
219-21 and 240). He also testified that his front room was torn up—including a
table and chair being broken—when Choudri struggled with police officers. (Id. at
246-47).
{¶11} Following the close of the State’s case-in-chief, but prior to Choudri’s
Rule 29 motion, the trial judge asked if Count 1 and Count 2 referred to one
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particular entry by Choudri into the house or to both entries. The State replied that
Count 1 applied to the first entry and Count 2 applied to the second entry. Choudri’s
counsel responded, “that’s not what the filed bill of particulars indicated at all” and
there was “no distinction” in the bill of particulars. (Nov. 1, 2022 Tr. at 371).
Counsel claimed the State was offering an “alternative theory” of its case. The trial
judge disagreed, finding the State was not prohibited from presenting its theory that
Count 1 applied to the first entry and Count 2 applied to the second entry.
{¶12} Choudri then made a motion under Rule 29 for the entire case to be
dismissed, arguing there was no trespass because Choudri had a privilege to be in
the house. The trial court denied the motion. Following the close of Choudri’s case
and closing arguments, the trial judge gave the jury instructions, including
instructions on trespass-in-a-habitation as a lesser-included offense for Count 2, a
landlord’s statutory obligations as delineated in R.C. 5321.04(A), and privilege to
enter upon the property under certain circumstances. The jury found Choudri not
guilty of aggravated burglary, burglary, and obstructing official business. However,
the jury found Choudri guilty of the lesser-included offense of trespass-in-a-
habitation, in violation of R.C. 2911.12(B), a fourth-degree felony. The trial court
sentenced Choudri to 18 months of community control, subject to the general
supervision of the Adult Probation Department. This appeal followed.
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II. ASSIGNMENTS OF ERROR
{¶13} Choudri filed her notice of appeal with the trial court on December
20, 2022. She raises three assignments of error for our review:
First Assignment of Error
The trial court erred when it failed to grant Defendant-Appellant
Maryum Choudri’s Criminal Rule 29 motion to dismiss as the case
presented by the State of Ohio was not supported by sufficient evidence.
Second Assignment of Error
The trial court erred when it entered judgment against Defendant-
Appellant Maryum Choudri as the verdict was not supported by the
manifest weight of the evidence.
Third Assignment of Error
The trial court erred to the substantial prejudice of Defendant-
Appellant Maryum Choudri in permitting the State to advance a new
theory not presented to Defendant-Appellant in the Indictment or Bill of
Particulars after the close of the State’s Case in Chief.
III. DISCUSSION 3
A. First Assignment of Error
{¶14} In her first assignment of error, Choudri argues the trial court erred in
denying her Crim.R. 29 motion. She contends the State failed to present sufficient
evidence to support a conviction for trespass-to-a-habitation. According to Choudri,
due to her “non-delegable duty as a landlord, she held a valid privilege to be present
at the property to inspect and/or repair the issues with Mr. Brammer’s hot water
3
Choudri clarified that her arguments on appeal are limited to Count Two for Burglary in violation of R.C.
2911.12(A)(2) (for which Choudri was not found guilty) and the lesser-included offense of trespass-in-a-
habitation in violation of R.C. 2911.12(B) (for which Choudri was found guilty).
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heater,” and “the State failed to provide evidence sufficient to overcome Ms.
Choudri’s privilege to be present on the property for purposes of repairs that would
warrant a conviction for trespass” to a habitation. (Appellant’s Brief at 9, 15).
Through her argument, she implies that her being the landlord for the property also
granted her the privilege to use the bathroom.
i. Standard of Review
{¶15} “A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State
v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) and State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A sufficiency challenge disputes
whether a party met its burden of production at trial. State v. Messenger, 171 Ohio
St.3d 227, 2022-Ohio-4562, ¶ 26. “In reviewing a record for sufficiency, ‘[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.’” Tenace at ¶ 37, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
Thus, “[i]n assessing the sufficiency of the evidence, we do not resolve evidentiary
conflicts or assess the credibility of witnesses.” State v. Jackson, 3d Dist. Allen No.
1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.
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{¶16} Under Crim.R. 29(A), “[t]he court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a conviction of
such offense or offenses.” The referenced “offenses charged in the indictment”
include lesser-included offenses. State v. Lytle, 49 Ohio St.3d 154, 157, 551 N.E.2d
950 (1990) (an indictment on a greater offense “necessarily and simultaneously
charges the defendant with lesser included offenses as well”). Additionally,
“[w]hen an appellate court reviews a Crim.R. 29 motion, the motion should be
reviewed in the context of whether the evidence presented supported the offense for
which the defendant was convicted.” State v. Schellentrager, 8th Dist. Cuyahoga
No. 105652, 2017-Ohio-9275, ¶ 11. Therefore, we must decide whether the
evidence presented would have allowed any rational trier of fact to find the essential
elements of trespass-in-a-habitation proven beyond a reasonable doubt. Id. at ¶ 1-
2, 11 (where defendant-appellant was found not guilty of the greater offense but
guilty of the lesser-included offense, the issue on appeal was not whether the
evidence was sufficient following the state’s case to support a conviction for the
greater offense, but whether the trial court should have granted the motion for
acquittal with respect to the lesser-included offense).
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ii. Applicable Law
{¶17} The statute prohibiting trespass-in-a-habitation states: “No person, by
force * * * shall trespass in a permanent or temporary habitation of any person when
any person other than an accomplice of the offender is present or likely to be
present.” R.C. 2911.12(B). Thus, unlike burglary, trespass-in-a-habitation does not
require the State to prove the defendant acted “with purpose to commit in the
habitation any criminal offense.” R.C. 2911.12(A)(2).4
{¶18} Force is defined as “any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.” R.C.
2901.01(A)(1). One way a person can commit a “trespass” is by “[k]nowingly
enter[ing] or remain[ing] on the land or premises of another,” “without privilege to
do so.” R.C. 2911.21(A)(1). And, “‘[p]rivilege’ means an immunity, license, or
right conferred by law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12).
{¶19} A person’s privilege to enter or remain on the land or premises of
another can be revoked or terminated. State v. Bryant, 3d Dist. Allen No. 1-21-25,
4
Regarding the burglary charge, the applicable statute states: “No person, by force * * * shall * * * [t]respass
in an occupied structure * * * that is a permanent or temporary habitation of any person when any person
other than an accomplice of the offender is present or likely to be present, with purpose to commit in the
habitation any criminal offense.” R.C. 2911.12(A)(2); see also R.C. 2911.21(F)(2) (definition of “land or
premises”). Here, the specific “criminal offense” alleged in Count 2 was criminal damaging. The statute
regarding criminal damaging provides that “[n]o person shall cause, or create a substantial risk of physical
harm to any property of another without the other person’s consent * * * [k]nowingly, by any means.” R.C.
2909.06(A)(1); see also R.C. 2901.22(B) (definition of “knowingly”). The judge instructed the jurors at trial
that the criminal offense at issue, for both Count 1 and Count 2, was “criminal damaging or disorderly
conduct.” (Nov. 3, 2022 Tr. at 602-04).
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2022-Ohio-418, ¶ 9 (affirming conviction for criminal trespass). “[W]hile a
person’s presence at the property may be initially lawful, it can, nonetheless, morph
into trespass if that privilege is revoked or terminated.” Id., citing State v. Petefish,
7th Dist. Mahoning No. 10 MA 78, 2011-Ohio-6367, ¶ 22.
{¶20} A landlord has various obligations, including to “[m]ake all repairs
and do whatever is reasonably necessary to put and keep the premises in a fit and
habitable condition.” R.C. 5321.04(A)(2). However, another obligation is that,
“[e]xcept in the case of emergency or if it is impracticable to do so, [the landlord
shall] give the tenant reasonable notice of the landlord’s intent to enter and enter
only at reasonable times.” R.C. 5321.04(A)(8). “Twenty-four hours is presumed to
be a reasonable notice in the absence of evidence to the contrary.” Id.; see also
Spencer v. Blackmon, 22 Ohio Misc.2d 52, 53, 490 N.E.2d 943 (M.C. 1985) (any
“emergency” under the statute must be a “bona fide emergency”).
iii. Analysis
{¶21} Viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found the essential elements for trespass-in-a-
habitation proven beyond a reasonable doubt against Choudri. Specifically, the
evidence in the State’s case-in-chief—including State’s Exhibit 1 (Officer Jagger’s
bodycam video)—showed that Choudri, by force, trespassed in a permanent or
temporary habitation of another person (Brammer’s home) when a person other than
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an accomplice was present (Brammer) and she knowingly entered the premises
(Brammer’s home) without privilege to do so. R.C. 2911.12(B).
{¶22} As shown above, the focus of Choudri’s argument on appeal is the
assertion she held a valid privilege to go into the house and the State did not provide
sufficient evidence to overcome that privilege. We disagree with Choudri. Even
if we assume Choudri initially held a valid privilege to make the first entry into the
house (based on Choudri’s assertions that Brammer invited her into the house and/or
she was there as the landlord to inspect or repair the hot water tank), any such
privilege does not apply to the second entry. First, Brammer clearly revoked any
privileges he may have provided. Bryant, 2022-Ohio-418, at ¶ 9. Officer Jagger’s
bodycam video shows Brammer closing the door to the home and blocking the
entrance—all while repeatedly saying he did not want Choudri to come into the
house. Second, Officer Jagger’s bodycam video also shows Choudri’s stated
purpose for trying to reenter the home was because she had to use the restroom, not
because she was attempting to inspect or repair the hot water tank as the landlord.5
See State v. MacDonald, 9th Dist. Summit No. 14822, 1991 WL 35141, *2 (Mar. 6,
1991) (under the criminal trespass statute, a privilege to enter or remain on another’s
land or premises may be restricted to certain areas).
5
Looking to the statute on which Choudri relies for her privilege argument, using the restroom in a house
you lease to someone else is not identified as a landlord’s privilege, as compared to, for example, making
“all repairs and do[ing] whatever is reasonably necessary to put and keep the premises in a fit and habitable
condition.” See R.C. 5321.04; see also R.C. 5321.05(A) (among the obligations of a tenant, listing “not
unreasonably withhold[ing] consent for the landlord to enter into the dwelling unit” for particular purposes
specified in the statute).
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{¶23} Additionally, Choudri never provided Brammer with “reasonable
notice of [her] intent to enter” the house, as required by R.C. 5321.04(A)(8), and
she does not attempt to argue an exception to that requirement applied. The
“reasonable notice” requirement also demonstrates that a landlord does not have an
absolute right to enter the house whenever he or she wants. R.C. 5321.04(A)(8);
see also State v. Lilly, 87 Ohio St.3d 97, 102-03, 717 N.E.2d 322 (1999) (defendant-
husband could be found criminally liable for trespassing, despite having statutory
privilege to access his spouse’s dwelling); Petefish, 2011-Ohio-6367, at ¶ 22
(defendant criminally trespassed in his ex-spouse’s apartment where his daughter
lived, even though defendant was allowed to store property there and had
conditional privileges within the apartment, including sometimes being allowed to
sleep, shower, and eat there).
{¶24} Choudri also cites R.C. 5321.04(B), which provides tenants with a
civil remedy for a landlord’s violating R.C. 5321.04(A)(8), and argues it was error
to find her guilty when “there exists adequate civil remedies for the purported
violation.” (Appellant’s Brief at 16). However, simply because Brammer may have
the ability to file a civil action against Choudri and recover financial damages for
her conduct does not necessarily preclude the State from bringing criminal charges
against Choudri for the same conduct. See, e.g., Phillips v. Rayburn, 113 Ohio
App.3d 374, 376, 680 N.E.2d 1279 (4th Dist.1996) (victim of aggravated assault
filed civil action for assault and battery against the perpetrator, after the perpetrator
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had been tried and convicted of aggravated assault); Jacobson v. Kaforey, 149 Ohio
St.3d 398, 2016-Ohio-8434, ¶ 6 (R.C. 2307.60 authorizes a civil action for damages
caused by criminal acts, unless otherwise prohibited by law). To support her
argument, Choudri quotes from a Twelfth District opinion: “[c]riminal trespass
statutes do not afford a substitute for other adequate civil remedies for trespass.”
State v. Hohman, 14 Ohio App.3d 142, 143, 470 N.E.2d 162 (12th Dist.1983).
However, in addition to the fact Hohman did not involve any charge except criminal
trespass, that case is distinguishable because it arose from a criminal complaint filed
by a private citizen (not an indictment issued by a grand jury). Id. at 142. The
appellate court in Hohman found the State had failed to show proof beyond a
reasonable doubt that the defendant was without privilege to be at a nursing home
(the premises at issue) because evidence indicated several nursing home residents
had requested his presence there. Id. at 143. The quote relied on by Choudri was
dicta from the appellate court, used to express its disapproval for what it found “was
not an appropriate remedy for the situation presented.” Id.
{¶25} Choudri’s first assignment of error is overruled.
B. Second Assignment of Error
{¶26} In her second assignment of error, Choudri contends her conviction
for trespass-in-a-habitation was not supported by the manifest weight of the
evidence and, therefore, must be reversed. As with her sufficiency-of-the-evidence
argument addressed above, Choudri relies on the assertion that she had a valid
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privilege to be present on the property as a landlord for the purpose of inspecting
and/or repairing the hot water tank, so she cannot be found guilty of the offense.
i. Standard of Review
{¶27} The “manifest-weight-of-the-evidence standard of review applies to
the state’s burden of persuasion.” Messenger, 171 Ohio St.3d 227, 2022-Ohio-
4562, at ¶ 26. “To evaluate a claim that a jury verdict is against the manifest weight
of the evidence, we review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that we must reverse the conviction and order a new trial.”
State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing Thompkins, 78
Ohio St.3d at 387. Yet, “[o]nly in exceptional cases, where the evidence ‘weighs
heavily against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
ii. Analysis
{¶28} For the same reasons we rejected Choudri’s sufficiency-of-the-
evidence argument, we reject Choudri’s manifest-weight-of-the-evidence argument.
In short, the evidence (particularly State’s Exhibit 1—Officer Jager’s bodycam
video) establishes, beyond a reasonable doubt, the elements of the offense and that
Choudri’s entry was not privileged to simply enter the residence for the purpose of
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using the restroom. We do not find the jury clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new
trial. Choudri’s second assignment of error is overruled.
C. Third Assignment of Error
{¶29} In her third assignment of error, Choudri argues that, due to the
alleged lack of specificity in the Bill of Particulars, she was unaware until after the
close of the State’s case-in-chief that the charges in Count 2 arose from the second
entry into Brammer’s house. Therefore, according to Choudri, she “was not
adequately informed regarding the nature and cause of the accusation against her
and was prejudiced by the lack of clarity and specificity within the Indictment and/or
the Bill of Particulars.” (Appellant’s Brief at 23).
i. Applicable Law
{¶30} “Even if the bill of particulars is insufficient in itself, the defendant
must show that lack of knowledge of certain facts required to be placed in the bill
of particulars prejudiced his ability to fairly defend himself.” State v. Donkers, 11th
Dist. Portage Nos. 2003 P 0135 and 2003 P 0136, 2007-Ohio-1557, ¶ 140, citing
State v. Chinn, 85 Ohio St.3d 548, 569, 709 N.E.2d 1166 (1999); see also State v.
Sellards, 17 Ohio St.3d 169, 172, 478 N.E.2d 781 (1985) (“inexactitude” in a bill of
particulars may be fatal “if the absence of specifics truly prejudices the accused’s
ability to fairly defend himself”).
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{¶31} Additionally, the Ohio Rules of Criminal Procedure provide that
“[d]efenses and objections based on defects in the indictment, information, or
complaint (other than failure to show jurisdiction in the court or to charge an
offense”) must be raised before trial. Crim.R. 12(C)(2). If not raised before trial,
then “our review of the alleged error must proceed under the plain error rule of
Crim.R. 52(B).” State v. Avery, 126 Ohio App.3d 36, 42, 709 N.E.2d 875 (3d Dist.
1998) (defendant-appellant alleged the bill of particulars was not specific enough to
alert him to the prosecution’s theory relating to one of the charges). Among other
requirements to qualify for plain-error relief, the appellant must establish that the
error affected the trial’s outcome. State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-
7565, ¶ 36. “Notice of plain error under CrimR. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage
of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three
of the syllabus.
ii. Analysis
{¶32} We will assume, without deciding, that the Bill of Particulars here was
insufficient. Specifically, we will assume the State needed to indicate in the Bill of
Particulars—whether by identifying the exact time of the offense or otherwise—that
Count 2 related to Choudri’s second entry. We still must determine if Choudri has
shown not knowing that fact prejudiced her ability to fairly defend herself. E.g.,
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Donkers, 2007-Ohio-1557, at ¶ 140; City of Mayfield Hts. v. Barry, 8th Dist.
Cuyahoga No. 95771, 2011-Ohio-2665, ¶ 45-46.
{¶33} We first address Choudri’s assertion she was prejudiced because “the
lack of specificity in the Bill of Particulars allowed the State of Ohio to continue to
explore new theories of potential violations once others had not panned out in the
State’s case-in-chief.” (Appellant’s Brief at 23). This claim is mere speculation by
Choudri. To us, it is possible the State’s theory was simply one that Choudri’s
counsel failed to recognize until the trial court requested clarification prior to
hearing Choudri’s Crim.R. 29 motion. Choudri says Counts 1 and 2 had “identical
phrasing” and that “identifying ‘Criminal Damaging’ as the listed criminal offense
[in both counts] caused Ms. Choudri to believe both Counts were in reference to the
allegation regarding Mr. Brammer’s broken cell phone.” (Appellant’s Brief at 23).
However, there is no mention of a cell phone in either the Indictment or the Bill of
Particulars, and the two counts are not identical. For example, Count 1 (for
aggravated burglary) alleges that Choudri inflicted, or attempted or threatened to
inflict, physical harm on Brammer; Count 2 makes no such allegation.
{¶34} Furthermore, based on Officer Jagger’s bodycam video, the language
regarding Count 2 in both the Indictment and the Bill of Particulars corresponded
with the second entry. Choudri was kicking the front door upon the officer’s arrival.
She ignored the officer’s instructions and pushed her way past Brammer into the
house where he was living. Brammer complains on the video that Choudri damaged
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his cell phone as she entered the house the second time. Thus, Officer Jagger’s
bodycam video provided a basis to charge Choudri with burglary concerning the
second entry.
{¶35} After receiving the Bill of Particulars and the bodycam videos,
Choudri could have, but did not, request another bill of particulars with more
specificity or file a motion asking the Court to compel the State to furnish a more
specific bill of particulars. See, e.g., Avery, 126 Ohio App.3d at 42 (“[t]he record
contains no motion filed by trial counsel objecting to the indictment or requesting a
more specific bill of particulars,” so, “[a]pparently, trial counsel was satisfied with
the information contained therein”). Additionally, when the defendant is made
aware during discovery of actions she is alleged to have committed that could
support the charge filed against her, she is not denied the opportunity to defend
against that charge and no prejudice results if she fails to complain about perceived
insufficient language in the bill of particulars. Id. at 44
{¶36} Choudri also argues that, due to the alleged lack of clarity and
specificity within the Indictment and/or the Bill of Particulars, her counsel had
prepared for the trial under a singular entry theory. Therefore, according to Choudri,
she was prejudiced in the presentation of her defense because she was allegedly
“prohibited” from “eliciting testimony and evidence from the State’s witnesses on
a new two (2) separate entry theory” and “only questioned the State’s witnesses
under a singular entry theory.” (Appellant’s Brief at 23-24). However, Choudri
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does not explain how she was “prohibited” from eliciting testimony and evidence
from the State’s witnesses regarding the second entry. Nor does the record bear out
this claim. On the contrary, she recalled one of the State’s witnesses in her case-in-
chief. (See Nov. 2, 2022 Tr. at 343, 368, 482-83). Also, after discussing the second
entry during opening statements, her counsel very effectively cross-examined the
State’s witnesses during the State’s case-in-chief.
{¶37} Additionally, the record indicates Choudri’s counsel was well-
prepared for the trial, including offering evidence and setting forth her defenses
from opening statements through the end of trial: Choudri always had a privilege
to be in the house, never trespassed, and never committed any criminal offenses
inside the property. Mayfield Hts., 2011-Ohio-2665, at ¶ 47 (defendant failed to
show he was prejudiced by the insufficient bill of particulars because the record
indicated defendant’s counsel was well-prepared for trial and offered witnesses to
defend against the charge). Choudri does not argue she would have made any other
defense to the charge of trespass-in-a-habitation had she known Count 2 related to
the second entry. City of Steubenville v. Whittaker, 7th Dist. Jefferson No. 17 JE
0025, 2018-Ohio-4014, ¶ 31 (where appellant’s defense to an assault charge at trial
was that she was not present when the assault occurred, and defendant’s counsel
“had the means to find out” when the assault occurred, there was “no indication that
the lack of a bill of particulars actually prejudiced appellant”).
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{¶38} Ultimately, although Choudri generally claims she was prejudiced by
an alleged lack of clarity and specificity, she “fails to show how knowledge of
certain facts omitted from the bill of particulars would have changed [her] defense.”
Mayfield Hts., 2011-Ohio-2665, at ¶ 47. We find no prejudice to Choudri resulting
from the language in the Indictment or Bill of Particulars. Therefore, Choudri’s
third assignment of error is overruled.
IV. CONCLUSION
{¶39} For the foregoing reasons, Choudri’s assignments of error are
overruled. Having found no error prejudicial to the appellant in the particulars
assigned and argued, we affirm the judgment of the Marion County Court of
Common Pleas.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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