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. 

.]




                                           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. 

             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. 

.]
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,
                                      

.
                                   __________________
        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
                                SUPREME COURT OF OHIO




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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                                January Term, 2022




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.


                                          4
                                January Term, 2022




       {¶ 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, 

, ¶ 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



                                         5
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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


                                          6
                                January Term, 2022




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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                                    SUPREME COURT OF OHIO




         {¶ 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, 

, 

 (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,
         

, ¶ 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, 

, 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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                                     January Term, 2022




        {¶ 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. 

, 

, 

.
                                     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.) 

.




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                             SUPREME COURT OF OHIO




       Ohio Laws 123, 164-165]. State v. Boyatt, 

, 

 [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, 

, 

 (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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                                January Term, 2022




offense charged and the conduct of the defendant which is alleged to constitute the
offense”); Morris v. Morris, 

, 

, 

 (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, 

,
       

.


State v. Fowler, 

, 364-365, 

 (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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                            SUPREME COURT OF OHIO




(Ellipsis sic.) State v. Chinn, 

, 

 (1999),
quoting State v. Sellards, 

, 

 (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


                                        12
                                January Term, 2022




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; 

; 

. 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), 

, 

; State v. Dinsio ([10th Dist.]1964),



                                         13
                                 SUPREME COURT OF OHIO




        

, 

. 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), 

, 

.


Sellards, 

, 

.
        {¶ 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, 

 (Nov. 22, 2000); State v.
McDay, 9th Dist. Summit No. CA19610, 

 (Sept. 20, 2000); State v. Swiger, 9th
Dist. Summit No. 14565, 

 (July 17, 1991); State v. Sarnescky, 9th Dist. Summit
No. 12257, 

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

 (June 30, 1982); State v. Eves, 9th Dist. Summit No. 9811, 

 (Mar. 11, 1981);
State v. Eskridge, 9th Dist. Summit No. 9664, 

 (Aug. 27, 1980).




3. State v. Miller, 

, 

 (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, 

, ¶ 46 (same); State v. McQueen, 7th Dist. Mahoning No. 08 MA 24,

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

 (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, 

, 

 (2d Dist.) (holding that there was no
showing of prejudice); State v. Wilson, 5th Dist. Richland No. 13CA39, 

(same); State v. Renfroe, 6th Dist. Lucas No. L-12-1146, 

, ¶ 24-25 (same); State v.
Oliver, 7th Dist. Mahoning No. 07 MA 169, 

 (same); State v. Brown, 7th
Dist. Mahoning No. 03-MA-32, 

 (same); State v. Pittman, 9th Dist.
Summit No. 29705, 

 (same); State v. Betts, 9th Dist. Summit Nos. 29575,
29576, and 29577, 

 (same); State v. Jamison, 9th Dist. Summit No. 27664,


                                               14
                                   January Term, 2022




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. 

 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.” 

. 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, 

; 

; 

,
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, 

, 

. 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)

 (same); State v. Ross, 9th Dist. Lorain No. 09CA009742, 

 (same); State v. Burney, 10th Dist. Franklin Nos. 15AP-197, 15AP-198, and 15AP-199, 2020-
Ohio-504, ¶ 54-55 (same).




                                             15
                             SUPREME COURT OF OHIO




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, 

, 

, 

(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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                                 January Term, 2022




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.



                                           17
                             SUPREME COURT OF OHIO




       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


                                          18
                                  January Term, 2022




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. 

. 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. 

. 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, 

, 

 (1997),
quoting Goldberg v. Indus. Comm., 

, 

 (1936).




                                           19
                              SUPREME COURT OF OHIO




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, 

, 

 (1967), citing Ohio Life Ins. & Trust Co. v. Goodin,

 (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,    

,    

,    

, quoting State v. Fisher, 

, 

, 

,
¶ 7, quoting United States v. Olano, 

, 

, 

 (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. 

. The open-file
discovery provided to Haynes well before the trial took place included police
reports and witness statements in the case. 

 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). 

 Further, there is no indication that the



                                           20
                                January Term, 2022




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



                                         21
                             SUPREME COURT OF OHIO




to that offense. See State v. Sellards, 

, 

(1985); Stumbo v. United States, 

 (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, 

, 

 (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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