State v. Haynes

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Haynes, Slip Opinion No. 2022-Ohio-4473.]

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-4473

THE STATE OF OHIO, APPELLEE, v. HAYNES, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Haynes, Slip Opinion No. 2022-Ohio-4473.]

Bill of particulars—Article I, Section 10 of the Ohio Constitution—Crim.R. 7(E)—

R.C. 2941.07—Upon written request by defendant, prosecuting attorney

must provide defendant with bill of particulars setting forth specifically the

nature of the offense charged and of the conduct of defendant alleged to

constitute the offense.

(No. 2021-0215—Submitted February 9, 2022—Decided December 15, 2022.)

APPEAL from the Court of Appeals for Wood County, No. WD-19-035,

2020-Ohio-6977.

__________________

BRUNNER, J.

I. INTRODUCTION

{¶ 1} In this case, appellant, Ernie Haynes, was indicted for the abduction

of his grandchildren who lived and stayed with him after his unmarried daughter

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died of a drug overdose and her boyfriend sought to claim them. When Haynes

requested a bill of particulars that would help him understand what he had allegedly

done and how those actions constituted the offense of abduction, appellee, the state

of Ohio, refused to provide one, and the trial court twice refused to compel the state

to provide one. On the morning of trial, the state was permitted to amend the

indictment to extend the time period covered, and only during the state’s closing

argument was its theory of when and how the alleged abduction occurred at last

clear.

{¶ 2} Haynes had a constitutional right, reinforced by a criminal rule, a

statute, and caselaw of this court, to know the nature and cause of the accusation

against him and to have that spelled out in a bill of particulars on request. The harm

to Haynes from the state’s failure to provide him with a bill of particulars in this

case is troubling. But the legal and constitutional implications of the decisions

below are even more troubling. We reverse the judgment of the Sixth District Court

of Appeals, vacate Haynes’s conviction, and remand the case for proceedings

consistent with this opinion.

II. FACTS AND PROCEDURAL HISTORY

{¶ 3} Haynes’s daughter, Jennifer Haynes, died suddenly on December 12,

2017, from a drug overdose. Jennifer had seven children, and at the time of her

death, she lived with her boyfriend, James Hill-Hernandez, who was likely the

biological father of the youngest four children—all boys. At the time of her death,

Jennifer was pregnant with her seventh child, who was prematurely delivered from

his deceased mother and survived her by less than six months. That child is not one

of the children allegedly abducted by Haynes.

{¶ 4} Shortly after Jennifer’s funeral on December 18, Hill-Hernandez and

Haynes became embroiled in a dispute over the custody of the three boys allegedly

fathered by Hill-Hernandez, with both Hill-Hernandez and Haynes seeking custody

in court. Hill-Hernandez filed a motion for temporary custody and, on December

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19, 2017, received an ex parte order granting him temporary custody of the three

boys. But the order was not served on Haynes. The proof-of-service form in the

record reflects that the order was sent to Hill-Hernandez and the Seneca County

Child Support Enforcement Agency, but not to Haynes. Haynes thereafter filed his

own motion for temporary custody and supported his requests with allegations that

Hill-Hernandez had a criminal record, used and sold drugs, was an alcoholic, and

was an abusive and unfit parent. On December 21, 2017, the Juvenile Division of

the Seneca County Common Pleas Court responded to Haynes’s request for custody

by issuing an order, which the record indicates was sent to Haynes, indicating that

there was insufficient information for it to decide the case on an ex parte basis and

that it had already issued other orders pertaining to the custody of the children. The

court scheduled a hearing for January to decide the matter. The order did not note

that Hill-Hernandez had been granted temporary custody or order that the children

be returned to him. On December 27, 2017, the children were still with Haynes

and his wife, and the court issued a writ of habeas corpus ordering Haynes to return

the three boys to the temporary custody of Hill-Hernandez pending the January

hearing. The same day, Haynes was arrested and the children were taken from a

home in McComb, Ohio, where the children, Haynes and his wife, and some of

their extended family had spent the Christmas holiday.

{¶ 5} On February 8, 2018, a grand jury indicted Haynes on six counts of

abduction—two counts for each of the three boys. The indictment alleged as to

each child that “[o]n or about December 21, 2017 to December 27, 2017” Haynes

“did, without privilege to do so, knowingly, by force or threat, remove [his

grandchild] from the place where [his grandchild] was found.” It also alleged as to

each child that “[o]n or about December 21, 2017 to December 27, 2017” Haynes

“did, without privilege to do so, knowingly, by force or threat, restrain the liberty

of [his grandchild], under circumstances that created a risk of physical harm to [his

grandchild] or placed [his grandchild] in fear.” Haynes pled not guilty.

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{¶ 6} On March 21, 2018, approximately six weeks after being indicted,

Haynes requested a bill of particulars setting forth

1. [t]he exact nature of the offense(s) charged;

2. [t]he precise conduct of the Defendant alleged to

constitute the offense(s) (i.e. principal offender, aider and abettor,

etc.); and

3. [t]he exact time that the offense(s) allegedly took place.

The state did not provide it.

{¶ 7} Approximately two months later, on May 30, 2018, Haynes moved

the court to compel the state to produce a bill of particulars. Haynes argued:

The State of Ohio has refused to respond to the defense’s

Request for Bill of Particulars. The State of Ohio has refused to

comply with the law in this regard and specify for the Defendant

what conduct they believe the Defendant engaged in which they

alleged to constitute the offenses of Abduction. In particular, the

State of Ohio has refused to provide discovery to the Defendant or

otherwise specify in a Bill of Particulars what force or threat was

used to remove the children and what circumstances existed that

created a risk of physical harm to the children.

Undoubtedly the State of Ohio will argue to the Court that

they have provided discovery to the Defendant which they argue

will take place of the Bill of Particulars, but it is entirely unclear

from the review of the discovery provided by the State of Ohio what

conduct of the Defendant they believe to have constituted these

elements.

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{¶ 8} When the state still did not provide a bill of particulars and the court

failed to address Haynes’s motion, Haynes, on July 23, 2018, again moved to

compel the state to produce a bill. In this motion, his attorney noted that he had

“received a response to his Request for Bill of Particulars, simply reciting the

statute setting forth the offense for which the Defendant was indicted, and then

referring the Defendant to discovery that was to be provided to him by the State of

Ohio.” He then elaborated: “The State of Ohio has refused to respond to the

defense’s Request for Bill of Particulars indicating that the discovery provided

should suffice to set forth the conduct of the Defendant they believed to have

constituted the offense. However, it is not clear, at all, what conduct of the

Defendant allegedly caused a violation of law.”

{¶ 9} The trial court denied the motions to compel. In its entirety, the order

states as follows:

This matter is before the Court on Defendant, Ernie Haynes’

Motion to Compel Production of Bill of Particulars, filed on July 23,

2018.

The State of Ohio has a practice of providing open-file

discovery. “No bill of particulars is required when the state allows

open-file discovery.” State v. Coffey, 6th Dist. Lucas No. L-12-

1047, 2013-Ohio-3555, ¶ 35. Accordingly, the Court finds

Defendant’s Motion to Compel Production of Bill of Particulars not

well-taken and denied.

{¶ 10} On the morning of trial, the state voluntarily dismissed the counts

alleging that Haynes had restrained the liberty of each of his grandchildren under

circumstances that created a risk of physical harm or placed them in fear. It also

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amended (without objection from the defense) the time frame of the indictment to

encompass December 19 and 20. It therefore proceeded on allegations with regard

to each of the three boys that “[o]n or about December [19], 2017 to December 27,

2017,” Haynes “did, without privilege to do so, knowingly, by force or threat,

remove [his grandchild] from the place where [his grandchild] was found.”

{¶ 11} At trial, the evidence showed that Haynes and Hill-Hernandez had

an argument on December 18, 2017, and that Hill-Hernandez then sought and

received a temporary-custody order on December 19, 2017. Haynes also sought a

temporary-custody order but, being the second to have sought temporary custody,

he received instead an order indicating that there was insufficient information for

the court to decide the case on an ex parte basis and that it had already issued other

orders regarding the custody of the children. The state presented evidence that Hill-

Hernandez had attempted to inform Haynes by text message that he had obtained

custody. The state also presented evidence that John Decker (the father of one of

Jennifer’s other children), with whom the three children at issue sometimes stayed,

phoned Haynes at Hill-Hernandez’s request to inform Haynes that Hill-Hernandez

had obtained temporary custody. Haynes, however, presented his own testimony,

the testimony of his wife, and the testimony of an attorney he hired on December

20 to deal with the custody matter, to the effect that he had ceased communicating

with Hill-Hernandez and had elected to have his attorney deal with all

communications regarding the case. Haynes also recounted that Decker had made

disparaging remarks to him about his deceased daughter and that he did not believe

Decker when Decker told him that Hill-Hernandez had been granted custody.

{¶ 12} The state and Haynes both presented testimony to the effect that the

children stayed with Haynes and his wife for several days after Jennifer’s death,

including the night of December 18. It was also undisputed that on December 19,

one of the children went to school while the remaining two children stayed part of

the day with the Deckers before Haynes picked them up. Testimony differed

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somewhat on what happened next—whether the children spent some time with

Haynes’s ex-wife (who was their biological grandmother), their uncle (Haynes’s

son), both, or neither. But it was undisputed that Haynes and his wife accepted an

invitation to spend Christmas with relatives in McComb and that on December 22,

they traveled to McComb and stayed there with the children until December 27,

when Haynes was arrested. The state characterized this as fleeing with the children

to avoid compliance with an adverse custody order. Haynes and his wife

characterized the decision as an attempt to remove themselves from a stressful

situation over the holidays and presented testimony to the effect that they had been

advised by their attorney that this would be permissible as they had not been served

with a court order requiring Haynes to return the children to Hill-Hernandez.

{¶ 13} Around noon on December 27, Haynes’s attorney notified him by

email that the court had ordered that the children be returned immediately to the

custody of Hill-Hernandez. Haynes and his wife testified that after they received

that email on the afternoon of December 27, they finished packing their cars and

were preparing to leave McComb and return the children to Hill-Hernandez, when

Haynes was arrested. Even the detective who arrested Haynes testified that that

may have been the case, based on the scene as he found it.

{¶ 14} In closing, the state argued that Haynes abducted the children when,

with knowledge that Hill-Hernandez had obtained temporary custody, Haynes

picked the two children up from the Deckers’ home on December 19 and had his

wife pick up one child from school. It argued that Haynes used force when he

buckled the children into their car seats and that he also used force in the sense that

a child does not realistically have any ability to resist when a grandparent decides

to take him somewhere. The abduction persisted, argued the state, when Haynes

and his wife kept the police from finding the children by absconding to McComb.

The jury found Haynes guilty of each of the three abduction charges, one for each

grandchild.

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{¶ 15} Haynes moved for an acquittal and to dismiss, arguing that no force

or threat had been shown and pointing out, as relevant to this case, that he was

hampered in his defense by not knowing, until closing argument, that it was his act

of picking up the boys from the Deckers’ residence on December 19 that was the

basis of the charges. The trial court denied the motions.

{¶ 16} On appeal, the Sixth District held that the trial court had not erred in

denying Haynes’s motion to compel the state to provide a bill of particulars. In

support of its holding it (1) cited a trial-practice shortcut as a legal precept—no bill

of particulars is required when the state allows open-file discovery, (2) stated that

a bill of particulars would not have provided the defense with any additional

information, and (3) stated that under the facts of this case, the purpose of the bill

of particulars was fulfilled.1

1. Specifically, the Sixth District stated:

When the defendant makes a written request, “the prosecuting attorney

shall furnish the defendant with a bill of particulars setting up specifically the

nature of the offense charged and of the conduct of the defendant alleged to

constitute the offense.” Crim.R. 7(E). “A bill of particulars has a limited

purpose—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).

The defendant complains that, in response to his motion, the state

provided a “copy of the indictment and referred to the discovery in this case.” In

denying the defendant’s subsequent motion to compel, the trial court found that,

“[t]he State of Ohio has a practice of providing open-file discovery” and “ ‘[n]o

bill of particulars is required when the state allows open-file discovery.’ ” See

Aug. 15, 2018 Order, quoting State v. Coffey, 6th Dist. Lucas No. L-12-1047,

2013-Ohio-3555, ¶ 35. The defendant argues that Coffey is inapplicable because

it involved an amendment to a bill of particulars, unlike this case which involves

the absence of any bill. However, Coffey was not restricted to its facts. And, in

any event, this precise issue was recently addressed in State v. Franklin, 5th Dist.

Muskingum No. CT2019-0042, 2020-Ohio-1263, ¶ 63-71, where the defendant

filed a motion to compel a bill of particulars that included “the dates and times or

the specific manner” of the offenses. On appeal, the court upheld the denial of

the motion to compel, finding that “it is undisputed that the [county prosecutor’s

office] maintains ‘open-file discovery,’ pursuant to which the state provides

discovery by allowing defense counsel to see all of its files regarding a case

without requiring the defense to make a written request for discovery. No bill of

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{¶ 17} Haynes appealed to this court, and we accepted his proposition of

law asserting that the state is required to provide a bill of particulars when it is

timely requested by a defendant. 162 Ohio St.3d 1437, 2021-Ohio-1399, 166

N.E.3d 1255.

III. DISCUSSION

{¶ 18} The Ohio Constitution explicitly provides that a defendant has the

right to know the nature of the accusation being made by the state: “In any trial, in

any court, the party accused shall be allowed to appear and defend in person and

with counsel; to demand the nature and cause of the accusation against him, and to

have a copy thereof * * *.” Ohio Constitution, Article I, Section 10. Historically,

this right was satisfied by detailed indictments. But with the advent of short-form

indictments, bills of particulars became necessary in some cases to give the accused

specifics as to what conduct the state was alleging constituted the offense, so that

the accused could mount a defense. In 1947, we explained this then-recent

development:

A bill of particulars was unknown to Ohio criminal

procedure prior to the enactment of Amended Senate Bill No. 8 [113

particulars is required when the state allows open-file discovery.” Id.

¶ 69.

Likewise, the defendant in this case sought “the exact time that the

offense(s) allegedly took place.” It is undisputed that the state provided open file

discovery, which according to it, included “a written statement by John Decker

indicating [that the defendant] had come over to his home [and] had picked up

two of the three children.” The discovery file also included police reports,

medical reports, and witness statements in the case. Thus, as in Coffey and

Franklin, a bill of particulars would not have provided the defense with any

additional information. Accordingly, under the facts of this case, we find that the

purpose of the bill of particulars was fulfilled. Accordingly, the defendant’s third

assignment of error is found not well-taken.

(Brackets sic.) 2020-Ohio-6977, ¶ 47-49.

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Ohio Laws 123, 164-165]. State v. Boyatt, 114 Ohio St. 397, 151

N.E. 468 [1926]. However, bills of particulars were recognized in

the federal courts and several of the state courts.

In 2 Bishop on Criminal Procedure (2 Ed.), Section 643, it is

said: “An indictment which the court cannot pronounce ill may still

omit details of which the defendant is justly entitled before trial.”

This is particularly true of an indictment in short form. To

insure compliance with the terms of Section 10, Article I of the Ohio

Constitution, the General Assembly in the same legislation

authorizing the short form of indictment passed the provision

whereby the prosecuting attorney, if seasonably requested, is

required to furnish a bill of particulars setting forth more fully the

details of the offense charged.

State v. Petro, 148 Ohio St. 473, 480-481, 76 N.E.2d 355 (1947).

{¶ 19} Presently, the exact contours of that right are procedurally specified

by Crim.R. 7(E):

When the defendant makes a written request within twenty-one days

after arraignment but not later than seven days before trial, or upon

court order, the prosecuting attorney shall furnish the defendant with

a bill of particulars setting up specifically the nature of the offense

charge[d] and of the conduct of the defendant alleged to constitute

the offense.

See also R.C. 2941.07 (“Upon written request of the defendant made not later than

five days prior to the date set for trial, or upon order of the court, the prosecuting

attorney shall furnish a bill of particulars setting up specifically the nature of the

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offense charged and the conduct of the defendant which is alleged to constitute the

offense”); Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664,

¶ 30 (noting that the rules of procedure promulgated by this court [such as Crim.R.

7(E)] supersede enactments by the legislature that affect procedural matters [such

as R.C. 2941.07]).

{¶ 20} We have previously explained that providing a bill of particulars

upon request (under either the rule or the statute) is mandatory:

“The prosecuting attorney, if seasonably requested by the

defendant, or upon order of the court, shall furnish a bill of

particulars setting up specifically the nature of the offense charged.”

The purpose of the bill of particulars is to inform an accused

of the exact nature of the charges against him so that he can prepare

his defense thereto.

The right to a bill of particulars provided for in this section

is not a matter of discretion with the court but is mandatory if the

charge laid is vague or indefinite. State v. Petro, 148 Ohio St. 473,

76 N.E.2d 355.

State v. Fowler, 174 Ohio St. 362, 364-365, 189 N.E.2d 133 (1963), quoting R.C.

2941.07. Continuing forward, in 1999, we stated:

[I]t was clear error for the prosecution to fail to provide a bill of

particulars and for the trial court to have denied [the] appellant’s

motion. The law is clear: “In a criminal prosecution the state must,

in response to a request for a bill of particulars * * *, supply specific

dates and times with regard to an alleged offense where it possesses

such information.”

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(Ellipsis sic.) State v. Chinn, 85 Ohio St.3d 548, 568-569, 709 N.E.2d 1166 (1999),

quoting State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985), syllabus.

{¶ 21} The charges against Haynes were exceedingly vague. With regard

to each child, the indictment alleged only that “[o]n or about December 21, 2017 to

December 27, 2017,” Haynes “did, without privilege to do so, knowingly, by force

or threat, remove [his grandchild] from the place where [his grandchild] was

found.” Under the evidence submitted by both the state and the defense, the boys

stayed with Haynes on December 18, stayed with the Deckers (two of the boys) and

at school (one of the boys) for part of the next day, and then were picked up by

Haynes and his wife later that day. They thereafter traveled, on December 22, to

the home of extended family members for Christmas, and Haynes and his wife

stayed there with the children until Haynes’s arrest on December 27, 2017. What

incident during that time constituted “remov[ing]” the grandchildren “from the

place where [they were] found,” by “force or threat,” “knowingly,” and “without

privilege to do so”? Was it picking them up at the Deckers’ house, even though the

pick-up from the Deckers happened on December 19 and therefore not within the

specified time frame of the indictment prior to its amendment on the morning of

trial? Was it the pick-up from school, even though Haynes was not the one who

picked up the boy who was at school and even though Haynes and his wife regularly

picked the children up from school? Was it taking the boys to see their other family

members for Christmas? Was it any other errand or outing they took the children

on during the week they were together? Which was being alleged, force or threat?

If force was being alleged, what was the alleged force? Was it the mere act of

transporting the children? Was it buckling them into the seats of the car?

{¶ 22} To the extent that we can now speculate as to the answers to these

questions, we have to remember that we have the benefit of the trial transcript.

Trying to answer these questions with only the contents of the discovery

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provided—police reports and witness statements—and without knowing that the

indictment would be amended on the morning of trial would have been an exercise

in conjecture. A defendant is not entitled to a prosecutor’s work product, such as

his trial strategy and estimation of the success of the case, but Haynes had a right

to know when the offenses were supposed to have occurred and specifically what

conduct he allegedly engaged in that the state was alleging constituted the offenses,

Ohio Constitution, Article I, Section 10. Not only did Haynes have a constitutional

right to know, but the state had an obligation, based on a criminal rule, a statute,

and multiple unequivocal decisions of this court, to produce a bill of particulars

telling him what he had a right to know. Crim.R. 7(E); R.C. 2941.07; Chinn at 568-

569; Fowler at 364-65; Petro at 480-481. Crim.R. 7(E) plainly states that the

“prosecuting attorney shall furnish the defendant with a bill of particulars setting

up specifically the nature of the offense charge[d] and of the conduct of the

defendant alleged to constitute the offense.” (Emphasis added.) Despite that

mandatory duty, the state, the trial court, and the intermediate court of appeals

chose to rely on caselaw of intermediate courts of appeal holding that even though

Crim.R. 7(E) plainly sets forth a mandatory duty to provide a bill of particulars,

that duty evaporates when full discovery is provided.

{¶ 23} Neither Article I, Section 10, of the Ohio Constitution nor Crim.R.

7(E) nor R.C. 2941.07 contain this exception. None of our decisions has endorsed

such an exception. To the contrary, we have made clear that a bill of particulars is

not the same thing as discovery and that discovery and the bill of particulars serve

different purposes:

A bill of particulars has a limited purpose—to elucidate or

particularize the conduct of the accused alleged to constitute the

charged offense. See, e.g., State v. Halleck ([4th Dist.]1970), 24

Ohio App.2d 74, 263 N.E.2d 917; State v. Dinsio ([10th Dist.]1964),

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4 Ohio App.2d 309, 212 N.E.2d 606. A bill of particulars is not

designed to provide the accused with specifications of evidence or

to serve as a substitute for discovery. State v. Wilson (1972), 29

Ohio St.2d 203, 280 N.E.2d 915.

Sellards, 17 Ohio St.3d at 171, 478 N.E.2d 781.

{¶ 24} Though the state cites many court-of-appeals decisions for the

proposition that discovery is a substitute for a bill of particulars, many are

unpublished decisions issued before May 2, 2002,2 see Rep.Op.R. 3.4, many

mention the matter only in passing without analysis,3 and many state or suggest that

discovery is a substitute for a bill of particulars not in order to hold that no bill was

required but, rather, to support the holding that the error in failing to provide one

was harmless.4 Separate from the cases in these three broad categories, the state

2. State v. Tebcherani, 9th Dist. Summit No. 19535, 2000 WL 1729456 (Nov. 22, 2000); State v.

McDay, 9th Dist. Summit No. CA19610, 2000 WL 1349804 (Sept. 20, 2000); State v. Swiger, 9th

Dist. Summit No. 14565, 1991 WL 131528 (July 17, 1991); State v. Sarnescky, 9th Dist. Summit

No. 12257, 1986 WL 2228 (Feb. 12, 1986); State v. Hudson, 9th Dist. Summit No. 10491, 1982 WL

5074 (June 30, 1982); State v. Eves, 9th Dist. Summit No. 9811, 1981 WL 3897 (Mar. 11, 1981);

State v. Eskridge, 9th Dist. Summit No. 9664, 1980 Ohio App. LEXIS 11114 (Aug. 27, 1980).

3. State v. Miller, 118 N.E.3d 1094, 2018-Ohio-3430, ¶ 17 (7th Dist.) (noting the issue in passing

and without analysis of the veracity of the proposition); State v. Freeman, 7th Dist. Mahoning No.

08 MA 81, 2009-Ohio-3052, ¶ 46 (same); State v. McQueen, 7th Dist. Mahoning No. 08 MA 24,

2008-Ohio-6589, ¶ 24 (same); State v. Johnson, 11th Dist. Lake Nos. 2018-L-001 and 2018-L-002,

2018-Ohio-3968, ¶ 51 (same); see also State v. Evans, 2d Dist. Montgomery No. 20794, 2006-Ohio-

1425, ¶ 24 (same and also noting that a bill of particulars was not requested).

4. State v. Sewell, 112 N.E.3d 1277, 2018-Ohio-2027, ¶ 67-68 (2d Dist.) (holding that there was no

showing of prejudice); State v. Wilson, 5th Dist. Richland No. 13CA39, 2014-Ohio-41, ¶ 23-24

(same); State v. Renfroe, 6th Dist. Lucas No. L-12-1146, 2013-Ohio-5179, ¶ 24-25 (same); State v.

Oliver, 7th Dist. Mahoning No. 07 MA 169, 2008-Ohio-6371, ¶ 36-39 (same); State v. Brown, 7th

Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 83-88 (same); State v. Pittman, 9th Dist.

Summit No. 29705, 2021-Ohio-1051, ¶ 23-24 (same); State v. Betts, 9th Dist. Summit Nos. 29575,

29576, and 29577, 2020-Ohio-4800, ¶ 44 (same); State v. Jamison, 9th Dist. Summit No. 27664,

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heavily relies on two cases: State v. Coffey, 6th Dist. Lucas No. L-12-1047, 2013-

Ohio-3555, and State v. Franklin, 5th Dist. Muskingum No. CT2019-0042, 2020-

Ohio-1263. Coffey states that no bill of particulars is required when open-file

discovery is provided, but that case involves a dissimilar factual circumstance. In

Coffey, a bill of particulars was provided and then an amended bill of particulars

was permitted. 2013-Ohio-3555 at ¶ 12, 34-37. The facts in Franklin are more

analogous to Haynes’s situation, as it affirms the denial of a motion to compel a bill

of particulars because of the availability of discovery when the state had informed

the defendant, “[T]he State does not provide Bills of Particulars in any criminal

matter.” 2020-Ohio-1263 at ¶ 15-16, 63-70. However, in light of Article I, Section

10 of the Ohio Constitution, Crim.R. 7(E), R.C. 2941.07, and the several cases we

have decided on the issue, Chinn at 568-569; Fowler at 364-365; Petro at 480-481,

any decision stating that the provision of discovery excuses a failure to provide a

bill of particulars is just plainly erroneous. All such decisions, to the extent they

hold otherwise, are no longer good law. Bills of particulars must be provided on

request.

{¶ 25} The state argues that Haynes has not shown that he was prejudiced

in his ability to prepare his defense as a result of the state’s decision to ignore the

Constitution, the criminal rule, the statute, and decisions of this court. Of course,

it is a fair question whether the “lack of knowledge concerning the specific facts a

bill of particulars would have provided him actually prejudiced him in his ability to

fairly defend himself,” Chinn, 85 Ohio St.3d at 569, 709 N.E.2d 1166. However,

the indictment in this case was extremely scant, and it is difficult—even in light of

what was presented at trial—to fully understand exactly what conduct amounting

to the crime of abduction (rather than, say, interference with custody or contempt)

2016-Ohio-5122, ¶ 5-8 (same); State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶

20 (same); State v. Burney, 10th Dist. Franklin Nos. 15AP-197, 15AP-198, and 15AP-199, 2020-

Ohio-504, ¶ 54-55 (same).

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Haynes engaged in. If the state would like us to rule that under Crim.R. 52(A), the

state’s intentional failure to comply with the Constitution and Crim.R. 7(E) was

harmless, then the state must show that it was “harmless beyond a reasonable

doubt,” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967) (observing that the burden of proving harmlessness is on the beneficiary of

the error and that harmlessness must be proved beyond a reasonable doubt). It has

not done so here.

{¶ 26} Not every case requires a bill of particulars. Sometimes an

indictment tells a defendant all the defendant needs to know to understand exactly

what is alleged. In view of that (and the fact that constitutional rights are often

waivable), a defendant is free to decide not to request a bill of particulars. But

“[w]hen the defendant makes a written request * * *, the prosecuting attorney shall

furnish the defendant with a bill of particulars setting up specifically the nature of

the offense charge[d] and of the conduct of the defendant alleged to constitute the

offense.” (Emphasis added.) Crim.R. 7(E). In other words, the defendant has a

right “to demand the nature and cause of the accusation against him,” and if the

defendant does, the state must honor that right. Ohio Constitution, Article I, Section

10. There are no exceptions to the requirement; the state must provide a bill of

particulars on a defendant’s request, even when the prosecutor believes that the

defendant is able to glean the nature and cause of the accusation against him from

the discovery the state provided or from some other source. The defendant, after

all—not the prosecutor—is best situated to know whether or not he understands the

accusation against him.

{¶ 27} In this case, the defendant clearly did not understand how he could

have “abducted” the grandchildren who had lived and stayed with him after his

unmarried daughter died of an overdose. Even the trial court, while ruling against

Haynes on his motions to dismiss and for acquittal, said that it was “hard to imagine

the legislature imagined this particular situation when it enacted the Abduction

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statute” and that this case had “cause[d] the Court to wonder why the State of Ohio

would pursue the criminal prosecution of a matter that might have been better

handled through the Seneca County Juvenile Court.” The state should have given

Haynes notice of exactly what it was alleging he did that could have constituted the

offenses charged. Anything other than that fell short of what is required under the

Constitution, R.C. 2941.07, Crim.R. 7(E), and caselaw of this court.

IV. CONCLUSION

{¶ 28} Upon written request by a defendant, the prosecuting attorney must

furnish the defendant with a bill of particulars setting forth specifically the nature

of the offense charged and of the conduct of the defendant alleged to constitute the

offense. A criminal defendant has the right to request the nature and cause of the

accusation against him, and if the defendant does make this request, the state must

fulfill its obligation to the defendant. In this case, Haynes clearly did not

understand how he could have “abducted” his deceased, unmarried daughter’s

children who lived and stayed with him after she died of a drug overdose. When

Haynes was indicted, he requested a bill of particulars. The state did not provide a

bill, stating that its providing discovery sufficed. The trial court agreed and

overruled two defense motions to compel the state to provide a bill. The matter

proceeded to a trial, and the state’s theory of the case was not clear until closing

argument. The system failed this defendant when the trial court and prosecutor

failed to follow the Constitution, a statute, a criminal rule, and caselaw of this court.

We reverse the Sixth District Court of Appeals’ judgment, vacate Haynes’s

conviction, and remand this matter to the trial court for proceedings consistent with

this opinion.

Judgment reversed

and cause remanded.

O’CONNOR, C.J., and DONNELLY and STEWART, JJ., concur.

FISCHER, J., concurs in judgment only.

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DEWINE, J., dissents, with an opinion joined by KENNEDY, J.

_________________

DEWINE, J., dissenting.

{¶ 29} I agree with the majority that the trial court erred when it failed to

require the state to provide a bill of particulars to Ernie Haynes. But that doesn’t

mean we should reverse his conviction. The majority overlooks two things.

{¶ 30} First, Haynes forfeited his argument about the bill of particulars.

The argument he makes in this court about how the absence of the bill of particulars

deprived him of notice is different from the argument he made in the court of

appeals. Second, Haynes was not prejudiced by the state’s failure to provide a bill

of particulars: the discovery provided by the state contained the information that

Haynes was entitled to receive in a bill of a particulars.

Haynes is indicted and convicted

{¶ 31} Haynes was indicted on abduction charges under R.C. 2905.02.

These charges stemmed from Haynes taking his three grandchildren to his home in

the midst of a custody dispute with the children’s father. The abduction statute

makes it a crime for any person, without privilege to do so, to “knowingly * * *

[b]y force or threat, remove another from the place where the other person is

found.” R.C. 2905.02(A)(1). A jury found Haynes guilty of three counts of

abduction.

{¶ 32} Before trial, Haynes requested that the state provide him a bill of

particulars with information about the specific time that the offense occurred as

well as the conduct constituting the offense. Crim.R. 7(E) states that upon request,

“the prosecuting attorney shall furnish the defendant with a bill of particulars

setting up specifically the nature of the offense charge[d] and of the conduct of the

defendant alleged to constitute the offense.” The state provided Haynes with a copy

of the indictment and referred him to the discovery in the case. Haynes moved to

compel the state to provide a bill of particulars. The trial court overruled the

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motion, citing precedent from the Sixth District Court of Appeals holding that a bill

of particulars is not necessary when the state provides “open file” discovery.

{¶ 33} Haynes appealed to the Sixth District, contending, among other

things, that the trial court erred in failing to require the state to provide a bill of

particulars, thereby depriving him of notice about the time and place of the alleged

offense. The Sixth District overruled the assignment of error. 2020-Ohio-6977, ¶

46, 49. In doing so, it cited its own precedent that a bill of particulars is not required

when the state provides open-file discovery. Id. at ¶ 48. It also explained that the

information that Haynes said he was deprived of—the time and place of the alleged

offense—was contained in the witness statements and police reports provided in

discovery and that “a bill of particulars would not have provided the defense with

any additional information.” Id. at ¶ 49.

{¶ 34} Haynes now appeals to this court, arguing that the failure to supply

a bill of particulars deprived him of notice as to what constituted “force” for the

purposes of R.C. 2905.02(A)(1).

Haynes has forfeited the argument he presents to this court

{¶ 35} The argument that Haynes now raises is different from the one he

raised in the court of appeals. Here, he asserts that he was deprived of notice as to

what acts had allegedly constituted “force” under R.C. 2905.02(A)(1). But in the

court of appeals, Haynes maintained that he was deprived of notice about the time

and place of the alleged offense. 2020-Ohio-6977 at ¶ 49. The only argument that

Haynes made about force in the court of appeals concerned the sufficiency of the

evidence, not lack of notice through a bill of particulars. Id. at ¶ 28.

{¶ 36} It is axiomatic that “ ‘[r]eviewing courts do not consider questions

not presented to the court whose judgement is sought to be reversed.’ ” State ex

rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81, 679 N.E.2d 706 (1997),

quoting Goldberg v. Indus. Comm., 131 Ohio St. 399, 404, 3 N.E.2d 364 (1936).

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Remarkably, though, the majority rushes to judgment without even considering the

consequences of Haynes’s forfeiture. It errs in doing so.

Haynes did not suffer any prejudice

{¶ 37} Not only does the majority overlook Haynes’s procedural default, it

also ignores the fact that the record demonstrates that Haynes suffered no prejudice

from the state’s failure to provide a bill of particulars.

{¶ 38} Perhaps the most basic rule of appellate procedure is that “in order

to secure reversal of a judgment, [an appellant] must not only show some error but

must also show that that error was prejudicial to him.” Smith v. Flesher, 12 Ohio

St.2d 107, 110, 233 N.E.2d 137 (1967), citing Ohio Life Ins. & Trust Co. v. Goodin,

10 Ohio St. 557 (1860). This prejudice requirement is incorporated in the Rules of

Criminal Procedure: Crim.R. 52 directs trial courts to disregard any “error, defect,

irregularity, or variance which does not affect substantial rights.” See also State v.

Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,

¶ 23, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222,

¶ 7, quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d

508 (1993) (“The term ‘substantial rights’ has been interpreted to require that ‘ “the

error must have been prejudicial” ’ ” [emphasis added in Morris]).

{¶ 39} Here, Haynes suffered absolutely no prejudice. As the court of

appeals properly found, all the information he sought was contained in the

discovery that was provided to him. 2020-Ohio-6977 at ¶ 49. The open-file

discovery provided to Haynes well before the trial took place included police

reports and witness statements in the case. Id. The indictment laid out the specific

offenses that Haynes was accused of. And the underlying conduct for these

offenses—including a description of what would constitute “force” for purposes of

R.C. 2905.02(A)(1)—was included in one of only a handful of witness statements

(the statement of John Decker). Id. Further, there is no indication that the

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information sought by Haynes was buried in a pile of irrelevant information that

made his trial preparation arduous.

{¶ 40} The majority tries to dance around the prejudice issue. It concedes

that it is a “fair question” whether Haynes was actually prejudiced in his ability to

defend himself. Majority opinion, ¶ 25. But it then goes on to say:

[T]he indictment in this case was extremely scant, and it is

difficult—even in light of what was presented at trial—to fully

understand exactly what conduct amounting to the crime of

abduction (rather than, say, interference with custody or contempt).

Majority opinion at ¶ 25.

{¶ 41} Talk about misdirection. Of course, Haynes wanted more facts than

what was contained in the indictment—that doesn’t establish prejudice, it explains

why we must address prejudice. And the majority’s concern that the evidence

presented was not sufficient to constitute abduction might be relevant to a

sufficiency analysis, but it has nothing to do with whether Haynes was on notice as

to the state’s evidence against him.

{¶ 42} The majority then says the state must prove that the error was

harmless beyond a reasonable doubt and that “[i]t has not done so here.” Majority

opinion at ¶ 25. That’s it. No analysis at all. Just a blanket assertion. At no point

does the majority explain what facts Haynes could have gotten from a bill of

particulars that were not contained in the witness statements, police reports, and the

other items provided in discovery.

{¶ 43} The majority does claim that the “state’s theory of the case was not

clear until closing argument.” Majority opinion at ¶ 28. But so what? The state is

free to argue at trial whatever theory of the case it deems appropriate so long as the

defendant is sufficiently apprised of the offense charged and the conduct giving rise

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to that offense. See State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d 781

(1985); Stumbo v. United States, 90 F.2d 828, 833 (6th Cir.1937) (“We know of no

invasion of the rights of defendants in the failure of the court to require that the

Government lay before them its entire case”). Haynes already had the information

that he requested.

{¶ 44} We have found that when the specific facts that a bill of particulars

would have provided were readily available to a defendant from information he

already had obtained, the defendant “suffered no prejudice as a consequence of the

denial [of the request for a bill of particulars].” State v. Chinn, 85 Ohio St.3d 548,

569, 709 N.E.2d 1166 (1999). That is plainly the case here.

Conclusion

{¶ 45} Despite its breathless tone, the majority opinion does not identify

any prejudice. And for good reason: all the information that Haynes sought from a

bill of particulars was contained in the discovery provided to him. Further, Haynes

failed to raise the argument below that he presents to this court. I would affirm the

judgment of the Sixth District Court of Appeals. Therefore, I dissent from the

majority’s judgment.

KENNEDY, J., concurs in the foregoing opinion.

_________________

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold,

Assistant Prosecuting Attorney, for appellee.

Michael H. Stahl, for appellant.

Lorin J. Zaner, urging reversal on behalf of amicus curiae, National Child

Abuse Defense & Resource Center.

_________________

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