State v. Hostetter

[Cite as State v. Hostetter, 2013-Ohio-2000.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
: Case No. 12 CAA 08 0059
STEPHEN S. HOSTETTER :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No. 11
CR I 12 0633
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 8, 2013
APPEARANCES:
For Appellant: For Appellee:
CAROL HAMILTON O’BRIEN GARTH G. COX
DELAWARE COUNTY PROSECUTOR 37 West Broad St., Suite 950
ERIC C. PENKAL Columbus, OH 43215
140 N. Sandusky St. 3rd Floor
Delaware, OH 43015
Delaney, P.J.
{¶1} Appellant State of Ohio appeals from the August 16, 2012 judgment
entry of the Delaware County Court of Common Pleas dismissing one count of
burglary against appellee Stephen S. Hostetter.
FACTS AND PROCEDURAL HISTORY
{¶2} The facts underlying the crime alleged in this appeal are not in the record
before us; however, the facts stated herein are drawn from the parties’ argument
before the trial court on the motion to dismiss. This criminal case arose from a
domestic relations case. Appellee and his wife owned a marital residence and
temporary orders pertaining to the residence were issued on September 17, 2009.
Appellant alleges appellee entered the residence and installed surveillance equipment
during a time period which he purportedly had no authority to do so.
{¶3} On December 9, 2011, appellee was charged by indictment with one
count of burglary [R.C. 2911.12(A)(3)] and two counts of interception of wire, oral or
electronic communications [R.C. 2933.52 (A)(1), 2933.52(A)(3)]. Appellant entered
pleas of not guilty.
{¶4} On January 25, 2012, appellee filed a Motion for a Bill of Particulars
seeking, e.g., “the specific date(s) and times between the period of September 17,
2009 and January 21, 2010, that [appellee] is alleged to have trespassed in the
identified occupied structure.” On February 9, 2012, the trial court ordered appellant
to comply with appellee’s request for a bill of particulars. On April 6, 2012, appellant
filed a Bill of Particulars stating the following regarding Count One: “The State of
Ohio, alleges that during the period of September 17, 2009 through January 21, 2010,
in Delaware County, Ohio, [appellee] did by force, stealth, or deception, trespass at
2485 South 3 B’s and K Road, an occupied structure and/or in a separately secured or
separately occupied portion of the structure the offense of Interception Of Wire, Oral
Or Electronic Communications, this being in violation of Section 2911.12(A)(3) [sic].”
{¶5} On April 11, 2012, appellee filed a Motion to Dismiss or in the Alternative
to Compel the State to Comply with the Court’s Entry of February 9, 2012 Ordering the
State to Provide the Defendant with a Bill of Particulars and a supplemental
memorandum on April 30, 2012. Appellant responded with a memorandum in
opposition on May 11, 2012.
{¶6} The matter was scheduled for a jury trial on August 23, 2012.
{¶7} On June 7, 2012, the trial court overruled appellee’s motion to dismiss
but ordered appellant to “identify the specific date(s) between the period of September
17, 2009 and January 21, 2010, that [appellee] is alleged to have trespassed in the
identified occupied structure within fifteen (15) days of this entry.” On June 26, 2012,
appellee filed a Motion to Dismiss Count One of the Indictment, asserting appellant did
not comply with the trial court’s order within the requisite time period. Appellant
sought an extension of 30 days to comply with the order, stating the prosecutor had
been unable to meet with the victim. Appellee objected to the request for extension of
time.
{¶8} The trial court held a motion hearing on August 3, 2012, and on August
16, 2012, granted appellee’s Motion to Dismiss Count One of the Indictment. The trial
court’s order noted appellant’s inability to narrow the time period during which
appellee allegedly committed the burglary offense, concluding “absent a specific date,
this assertion appears to be nothing more than mere speculation,” and that under the
circumstances of this case, a more specific date indicating when appellee trespassed
in his own residence is vital to preparation of his defense.
{¶9} Appellant now appeals from the decision of the trial court granting
appellee’s motion dismissing Count One of the indictment.
{¶10} Appellant raises one Assignment of Error:
{¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING
COUNT ONE BY LOOKING BEYOND THE FACE OF THE INDICTMENT TO
DETERMINE THAT THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE
NARROWING THE TIME FRAME TO SPECIFIC DATES DURING WHICH THE
BURGLARY OCCURRED.”
I.
{¶12} Appellant argues the trial court abused its discretion in dismissing Count
One (burglary) of the indictment. We disagree.
{¶13} Crim.R. 48(B) addresses dismissal of an indictment by the trial court,
and states in pertinent part: “If the court over objection of the state dismisses an
indictment, information, or complaint, it shall state on the record its findings of fact and
reasons for the dismissal.” A trial court’s decision to dismiss an indictment is reviewed
for an abuse of discretion. State v. Busch, 76 Ohio St.3d 613, 616, 669 N.E.2d 1125(1996). In order to find an abuse of discretion, we must determine that the trial court’s
decision was unreasonable, arbitrary or unconscionable and not merely an error of law
or judgment. State v. Daugherty, 5th Dist. No. 05-COA-007, 2005-Ohio-5637, ¶ 11,
citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶14} The trial court noted appellee was joint owner of the residence where the
burglary was alleged to have occurred during the period stated in the indictment
(September 17, 2009 through January 21, 2010). The trial court further noted
appellee had installed similar devices in the residence prior to the period stated in the
indictment. Appellant was ordered to identify specific dates within that time frame that
appellee allegedly trespassed within the residence, but failed do so. The trial court
found appellant’s argument that the device(s) may have been placed in December,
2009 to be “nothing more than mere speculation.”
{¶15} The purpose of a bill of particulars is “to elucidate or particularize the
conduct of the accused alleged to constitute the charged offense.” State v. Sellards,
17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). It also acts to “inform an accused of
the exact nature of the charges against him so that he can prepare his defense
thereto.” State v. Fowler, 174 Ohio St. 362, 364, 189 N.E.2d 133 (1963). Under the
unique circumstances of this case, to wit, appellee is charged with burglary into his
own residence, we find appellee was entitled to be advised more specifically of the
date of his alleged offense. The burglary offense is predicated upon the existence of
appellant’s evidence that appellee entered the residence when he was without
authority to do so; the procedural history of this case, however, supports the trial
court’s determination that appellant’s evidence thereof was “mere speculation.”
{¶16} The Second District Court of Appeals has weighed the circumstances in
which a trial court may dismiss an indictment in the interest of justice and we avail
ourselves of its rationale:
The Ohio Supreme Court has held that Crim.R. 48(B) “does not
limit the reasons for which a trial judge might dismiss a case, and
we are convinced that a judge may dismiss a case pursuant to
Crim.R. 48(B) if a dismissal serves the interests of justice.” []. The
court also stated that trial courts are on “the front lines of the
administration of justice in our judicial system, dealing with the
realities and practicalities of managing a caseload and responding
to the rights and interests of the prosecution, the accused, and
victims. A court has the ‘inherent power to regulate the practice
before it and protect the integrity of its proceedings.’ ” [] “The
Court also stressed the flexibility a trial court should have to
devise a solution in a given case, and went on to state that ‘[t]rial
judges have the discretion to determine when the court has
ceased to be useful in a given case.’ ” [] (Internal citations
omitted.)
State v. Montiel, 185 Ohio App.3d 362, 364, 2009-Ohio-6589, 924
N.E.2d 375 (2nd Dist. 2009).
{¶17} In this case, appellant did not comply with the trial court’s order to
provide a more specific date pursuant to its obligation to provide a bill of particulars.
We disagree with appellant’s argument that the trial court erred in looking beyond the
face of the indictment and dismissing Count One. We have previously distinguished
between the purposes of the indictment and the bill of particulars; the purpose of the
latter is to provide a defendant with greater detail of the charges against him. See,
State v. Davis, 5th Dist. No. 10CAA060042, 2011-Ohio-638, ¶ 24.
{¶18} The Ohio Supreme Court has held that while the failure to provide dates
and times in an indictment is not necessarily fatal to a prosecution, “* * * the state
must, in response to a request for a bill of particulars or demand for discovery, supply
specific dates and times with regard to an alleged offense where it possesses such
information.” State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985), syllabus.
Further, “[a] trial court must consider two questions when a defendant requests
specific dates, times, or places on a bill of particulars: whether the state possesses the
specific information requested by the accused, and whether this information is material
to the defendant’s ability to prepare and present a defense.” State v. Hensley, 59
Ohio St.3d 136, 141-142, 571 N.E.2d 711 (1991), citing State v. Lawrinson, 49 Ohio
St.3d 238, 239, 551 N.E.2d 1261 (1990).
{¶19} We are constrained in answering the first question, whether appellant
possess more specific dates as requested by appellee, by the dearth of facts in the
record before us. When it comes to the second question, however, we find that under
the unique circumstances of this case, specific dates as requested by appellee are
material to his ability to prepare and present a defense. Appellee’s criminal culpability
for burglary into his own residence is dependent upon interpretation of a domestic
relations court order and specific dates relating thereto.
{¶20} We conclude, therefore, that the trial court’s decision to dismiss Count
One of the indictment was not unreasonable, arbitrary or unconscionable, nor was it
an error of law or judgment. We therefore overrule appellant’s sole assignment of
error and affirm the judgment of the Delaware County Court of Common Pleas.
By: Delaney, P.J.
Hoffman, J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
PAD:kgb
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellant : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 12 CAA 08 0059
STEPHEN S. HOSTETTER :
:
Defendant - Appellee :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER