[Cite as State v. Glass, 2018-Ohio-5060.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




STATE OF OHIO,
                                                           CASE NO. 11-18-07
       PLAINTIFF-APPELLEE,

       v.

JAMES A. GLASS,                                            OPINION

       DEFENDANT-APPELLANT.



                           Appeal from Paulding County Court
                              Trial Court No. CRB1700145

                                       Judgment Affirmed

                           Date of Decision: December 17, 2018



APPEARANCES:

        Timothy C. Holtsberry for Appellant

        Matthew A. Miller for Appellee
Case No. 11-18-07


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant James A. Glass (“Glass”) brings this appeal from

the judgment of the Paulding County Court finding him guilty of one count of

falsification and sentencing him to 20 days in jail and a $300 fine. Glass argues on

appeal that the State provided an inadequate bill of particulars and that the trial court

erred by excluding exculpatory evidence. For the reasons set forth below, the

judgment is affirmed.

       {¶2} On April 26, 2017, Glass was charged by complaint with one count of

Falsification in violation of R.C. 2921.13(A)(2), a misdemeanor of the first degree.

Glass filed a request for a bill of particulars on May 11, 2017. The State filed its

response on January 19, 2018, with an amended response filed on April 27, 2018.

On July 12, 2017, Glass filed a motion for a handwriting expert to be appointed.

The motion was granted and the expert’s findings were that although there were

some similarities, the evidence was far from conclusive.

       {¶3} A jury trial was held on May 2, 2018, and the jury found Glass guilty.

On June 4, 2018, Glass was sentenced to 20 days in jail and a $300 fine. Glass then

filed a timely notice of appeal. On appeal, Glass raises the following assignments

of error.

                             First Assignment of Error

       The trial court erred in failing to grant [Glass’] pretrial motion
       [to] dismiss based upon an inadequate bill of particulars and an


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       amended bill of particulars that was filed by the State without
       leave of the court.

                            Second Assignment of Error

       The trial court erred in excluding exculpatory evidence pursuant
       to Evidence Rule 801.

                             Third Assignment of Error

       The trial court erred in excluding exculpatory evidence pursuant
       to Evidence Rule 403(A).

                            Fourth Assignment of Error

       The trial court denied [Glass] a fair trial by excluding exculpatory
       evidence and allowing the trial to proceed despite not granting
       leave to file an amended bill of particulars.

                                   Bill of Particulars

       {¶4} In the first assignment of error, Glass claims that the trial court erred by

failing to dismiss the case due to the State’s filing both an inadequate bill of

particulars and then filing a subsequent bill of particulars without leave of the trial

court. The assignment of error raises the question of what the appropriate remedy

is if an inadequate bill of particulars is filed. Initially, this Court notes that Glass

did not raise this issue before the trial court by complaining about the adequacy of

the initial bill of particulars. No motion to dismiss was ever filed with the trial court.

Instead, Glass merely raised the issue of the filing of the amended bill of particulars

without permission of the court at the beginning of the trial. Although Glass argued




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that this might be inappropriate, he did not request that the matter be dismissed or

that a continuance be granted when he addressed the trial court. Tr. 31-33.

       The purpose of a bill of particulars is “to clarify the allegations in
       the indictment so that the accused may know with what he is
       charged in order to prepare his defense.” Foutty v. Maxwell, 174
       Ohio St. 35, 38 (1962). “Although Crim.R. 7 provides a criminal
       defendant with the right to obtain a bill of particulars, the failure
       to provide such does not automatically constitute reversible
       error.” State v. Ray, 12th Dist. No. CA2009-06-022, 2010-Ohio-
       2434, 11. “An appellate court may only reverse a conviction for
       a failure to provide a timely requested bill of particulars if
       appellant demonstrates that his ‘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.’”
       Id. quoting State v. Chinn, 85 Ohio St.3d 548, 569 (1999).

State v. Shirley, 12th Dist. Butler No. CA2012-07-127, 2013-Ohio-1948,               20.

When no bill of particulars or an inadequate bill of particulars is filed, a defendant

should file a motion to compel compliance with the request. Id. at        21. “Because

a request for a bill of particulars, like a demand for discovery, is filed with the court

but made directly to the prosecutor, the defendant is required to bring the state’s

failure to respond to the trial court’s attention at a time when the error can be

remedied.” State v. Sims, 9th Dist. No. 94CA005797, 1994 WL 581408 (Oct. 19,

1994). A defendant waives any claim of error regarding the inadequacy of the bill

of particulars by proceeding to trial without bringing the matter to the attention of

the trial court. Shirly, supra at    23. Since Glass did not raise the compliance of

the State with the request for a bill of particulars in a timely manner with the trial



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court, he has waived the right to raise it now. For this reason, the first assignment

of error is overruled.

                               Exclusion of Evidence

       {¶5} In the second and third assignments of error, Glass claims that the trial

court erred by excluding evidence. The admission of evidence is left to the sound

discretion of the trial court. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961,

911 N.E.2d 242,      104. The trial court’s judgment shall not be reversed absent a

showing that the trial court abused its discretion. State v. Thompson, 3d Dist. Henry

No. 7-16-10, 2017-Ohio-792, 85 N.E.3d 1108,          18. “An abuse of discretion is

more than an error of judgment; rather, it implies that the trial court's decision was

unreasonable, arbitrary, or capricious.” Id. Glass argues that the trial court’s

decision to exclude portions of a video were contradictory to the Rules of Evidence.

In the second assignment of error, Glass argues that he should have been permitted

to show the video because Evidence Rule 806 allows one to impeach a witness with

prior inconsistent statements. There is no dispute that the Rules of Evidence allow

for impeachment of a witness through the use of inconsistent statements. However,

a review of the transcript shows that Glass was playing the video for more than three

minutes without asking any questions. Tr. 115. When the State objected, Glass’s

attorney asked the witness “Do you recall saying in the interview that you didn’t

know who, who Jim Glass was? At the time of the signing of these documents on

July 6th?” Tr. 116. After that question, the following dialogue occurred.

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      [Witness]: As I explained earlier in my testimony, the individual
      that represented himself to me to be James Glass is the same
      individual that’s sitting here. I don’t know that that is indeed
      James Glass, unless someone says yes, this conclusively is him; I
      didn’t know it at the time in the divorce proceeding either. I still,
      unless someone tells me that’s James Glass I don’t know. But I
      know that the individual that signed the mortgage, signed the
      other documents was James Glass that’s sitting here if that’s who
      you’re identifying it is.

      [Attorney]: Sir do you realize under 147.53 of the Ohio Revised
      Code that a person acknowledge ah, acknowledging ah, a
      signature ah has to be known to that person or there has to be
      satisfactory evidence that that person acknowledging that is the
      person described in and who executed the instrument. At that
      point you’re saying you didn’t know for certain who James Glass
      was and did not ask for a driver’s license.

      [Witness]: No, that’s incorrect.

      [Attorney]: Ok

      [Witness]: I based it on Jim, this individual coming to my office
      and presenting a check and providing the information for BP that
      he was indeed James Glass, he introduced himself to me as James
      Glass. This same individual then met with me outside the
      courtroom during his divorce proceedings and again the case was
      called as James Glass. Mr. Troth was there and so was his wife,
      based on all of those things I believe that this indeed was James
      Glass. That’s why I took his signature and notarized it.

Tr. 116-17. At no time during the questioning did Glass attempt to use the video to

impeach the witness with an inconsistent statement. Glass does not indicate any

specific statement that he wished to use to impeach the witness. Given that Glass

does not point to any specific error and apparently was able to question the witness




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about the believed inconsistency, this court does not find any error. The second

assignment of error is overruled.

       {¶6} Glass argues in the third assignment of error that the trial court erred by

excluding Ex. D, which was a check in which Glass’ ex-wife signed his name. The

check was excluded because there was no expert to compare the signature on the

check with the signature on the mortgage. Glass argues that pursuant to the holding

in Bell v. Brewster, 44 Ohio St.690, 10 N.E. 679 (1887), the check should have been

admitted even without an expert’s analysis of the signatures. However, the holding

of Bell does not leave the issue of comparing handwriting to just any non-expert.

Instead it held that a non-expert is permitted to compare a genuine sample of one’s

handwriting with a handwriting in question if the non-expert has first-hand

knowledge of the alleged author’s handwriting. Id. There is no question that Glass’

ex-wife signed the check shown in Ex. D as she testified to such. However, the jury

was not familiar with either her handwriting or Glass’ handwriting. Thus, the

holding of Bell does not require the admission of the exhibit. The record does not

persuade this Court that the trial court’s determination to exclude the admission of

the exhibit was an abuse of discretion. The third assignment of error is overruled.

                                    Cumulative Error

       {¶7} Finally, Glass argues that the cumulative errors of the trial court denied

him a fair trial. Under the doctrine of cumulative error “a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair

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trial even though each of the numerous instances of trial-court error does not

individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233,

2012-Ohio-2577, 971 N.E.2d 865,        223. This doctrine does not apply absent

multiple instances of harmless error. State v. Wesson, 137 Ohio St.3d 309, 2013-

Ohio-4575, 999 N.E.2d 557,     88. Having found no errors in the prior assignments,

this Court does not find that multiple instances of harmless error occurred in this

case.   Thus, the doctrine of cumulative error does not apply and the fourth

assignment of error is overruled.

        {¶8} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Paulding County Court is affirmed.

                                                              Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls




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