[Cite as State v. Hostetter, 2013-Ohio-2000.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
                                                :
                                                :   Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellant                      :   Hon. William B. Hoffman, J.
                                                :   Hon. Sheila G. Farmer, J.
-vs-                                            :
                                                :   Case No. 12 CAA 08 0059
STEPHEN S. HOSTETTER                            :
                                                :
                                                :
       Defendant-Appellee                       :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Delaware County
                                                    Court of Common Pleas, Case No. 11
                                                    CR I 12 0633



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             May 8, 2013




APPEARANCES:

For Appellant:                                      For Appellee:

CAROL HAMILTON O’BRIEN                              GARTH G. COX
DELAWARE COUNTY PROSECUTOR                          37 West Broad St., Suite 950
ERIC C. PENKAL                                      Columbus, OH 43215
140 N. Sandusky St. 3rd Floor
Delaware, OH 43015
Delaney, P.J.

       {¶1} Appellant State of Ohio appeals from the August 16, 2012 judgment

entry of the Delaware County Court of Common Pleas dismissing one count of

burglary against appellee Stephen S. Hostetter.

                           FACTS AND PROCEDURAL HISTORY

       {¶2} The facts underlying the crime alleged in this appeal are not in the record

before us; however, the facts stated herein are drawn from the parties’ argument

before the trial court on the motion to dismiss.     This criminal case arose from a

domestic relations case.    Appellee and his wife owned a marital residence and

temporary orders pertaining to the residence were issued on September 17, 2009.

Appellant alleges appellee entered the residence and installed surveillance equipment

during a time period which he purportedly had no authority to do so.

       {¶3} On December 9, 2011, appellee was charged by indictment with one

count of burglary [R.C. 2911.12(A)(3)] and two counts of interception of wire, oral or

electronic communications [R.C. 2933.52 (A)(1), 2933.52(A)(3)]. Appellant entered

pleas of not guilty.

       {¶4} On January 25, 2012, appellee filed a Motion for a Bill of Particulars

seeking, e.g., “the specific date(s) and times between the period of September 17,

2009 and January 21, 2010, that [appellee] is alleged to have trespassed in the

identified occupied structure.” On February 9, 2012, the trial court ordered appellant

to comply with appellee’s request for a bill of particulars. On April 6, 2012, appellant

filed a Bill of Particulars stating the following regarding Count One: “The State of

Ohio, alleges that during the period of September 17, 2009 through January 21, 2010,
in Delaware County, Ohio, [appellee] did by force, stealth, or deception, trespass at

2485 South 3 B’s and K Road, an occupied structure and/or in a separately secured or

separately occupied portion of the structure the offense of Interception Of Wire, Oral

Or Electronic Communications, this being in violation of Section 2911.12(A)(3) [sic].”

        {¶5} On April 11, 2012, appellee filed a Motion to Dismiss or in the Alternative

to Compel the State to Comply with the Court’s Entry of February 9, 2012 Ordering the

State to Provide the Defendant with a Bill of Particulars and a supplemental

memorandum on April 30, 2012.          Appellant responded with a memorandum in

opposition on May 11, 2012.

        {¶6} The matter was scheduled for a jury trial on August 23, 2012.

        {¶7} On June 7, 2012, the trial court overruled appellee’s motion to dismiss

but ordered appellant to “identify the specific date(s) between the period of September

17, 2009 and January 21, 2010, that [appellee] is alleged to have trespassed in the

identified occupied structure within fifteen (15) days of this entry.” On June 26, 2012,

appellee filed a Motion to Dismiss Count One of the Indictment, asserting appellant did

not comply with the trial court’s order within the requisite time period.     Appellant

sought an extension of 30 days to comply with the order, stating the prosecutor had

been unable to meet with the victim. Appellee objected to the request for extension of

time.

        {¶8} The trial court held a motion hearing on August 3, 2012, and on August

16, 2012, granted appellee’s Motion to Dismiss Count One of the Indictment. The trial

court’s order noted appellant’s inability to narrow the time period during which

appellee allegedly committed the burglary offense, concluding “absent a specific date,
this assertion appears to be nothing more than mere speculation,” and that under the

circumstances of this case, a more specific date indicating when appellee trespassed

in his own residence is vital to preparation of his defense.

       {¶9} Appellant now appeals from the decision of the trial court granting

appellee’s motion dismissing Count One of the indictment.

       {¶10} Appellant raises one Assignment of Error:

       {¶11} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING

COUNT ONE BY LOOKING BEYOND THE FACE OF THE INDICTMENT TO

DETERMINE THAT THE STATE FAILED TO PROVIDE SUFFICIENT EVIDENCE

NARROWING THE TIME FRAME TO SPECIFIC DATES DURING WHICH THE

BURGLARY OCCURRED.”

                                             I.


       {¶12} Appellant argues the trial court abused its discretion in dismissing Count

One (burglary) of the indictment. We disagree.

       {¶13} Crim.R. 48(B) addresses dismissal of an indictment by the trial court,

and states in pertinent part: “If the court over objection of the state dismisses an

indictment, information, or complaint, it shall state on the record its findings of fact and

reasons for the dismissal.” A trial court’s decision to dismiss an indictment is reviewed

for an abuse of discretion. State v. Busch, 76 Ohio St.3d 613, 616, 669 N.E.2d 1125

(1996). In order to find an abuse of discretion, we must determine that the trial court’s

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. State v. Daugherty, 5th Dist. No. 05-COA-007, 2005-Ohio-5637, ¶ 11,

citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
       {¶14} The trial court noted appellee was joint owner of the residence where the

burglary was alleged to have occurred during the period stated in the indictment

(September 17, 2009 through January 21, 2010).           The trial court further noted

appellee had installed similar devices in the residence prior to the period stated in the

indictment. Appellant was ordered to identify specific dates within that time frame that

appellee allegedly trespassed within the residence, but failed do so. The trial court

found appellant’s argument that the device(s) may have been placed in December,

2009 to be “nothing more than mere speculation.”

       {¶15} The purpose of a bill of particulars is “to elucidate or particularize the

conduct of the accused alleged to constitute the charged offense.” State v. Sellards,

17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). It also acts to “inform an accused of

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

thereto.” State v. Fowler, 174 Ohio St. 362, 364, 189 N.E.2d 133 (1963). Under the

unique circumstances of this case, to wit, appellee is charged with burglary into his

own residence, we find appellee was entitled to be advised more specifically of the

date of his alleged offense. The burglary offense is predicated upon the existence of

appellant’s evidence that appellee entered the residence when he was without

authority to do so; the procedural history of this case, however, supports the trial

court’s determination that appellant’s evidence thereof was “mere speculation.”

       {¶16} The Second District Court of Appeals has weighed the circumstances in

which a trial court may dismiss an indictment in the interest of justice and we avail

ourselves of its rationale:
             The Ohio Supreme Court has held that Crim.R. 48(B) “does not

             limit the reasons for which a trial judge might dismiss a case, and

             we are convinced that a judge may dismiss a case pursuant to

             Crim.R. 48(B) if a dismissal serves the interests of justice.” []. The

             court also stated that trial courts are on “the front lines of the

             administration of justice in our judicial system, dealing with the

             realities and practicalities of managing a caseload and responding

             to the rights and interests of the prosecution, the accused, and

             victims. A court has the ‘inherent power to regulate the practice

             before it and protect the integrity of its proceedings.’ ” [] “The

             Court also stressed the flexibility a trial court should have to

             devise a solution in a given case, and went on to state that ‘[t]rial

             judges have the discretion to determine when the court has

             ceased to be useful in a given case.’ ” []         (Internal citations

             omitted.)

             State v. Montiel, 185 Ohio App.3d 362, 364, 2009-Ohio-6589, 924

             N.E.2d 375 (2nd Dist. 2009).

      {¶17} In this case, appellant did not comply with the trial court’s order to

provide a more specific date pursuant to its obligation to provide a bill of particulars.

We disagree with appellant’s argument that the trial court erred in looking beyond the

face of the indictment and dismissing Count One. We have previously distinguished

between the purposes of the indictment and the bill of particulars; the purpose of the
latter is to provide a defendant with greater detail of the charges against him. See,

State v. Davis, 5th Dist. No. 10CAA060042, 2011-Ohio-638, ¶ 24.

       {¶18} The Ohio Supreme Court has held that while the failure to provide dates

and times in an indictment is not necessarily fatal to a prosecution, “* * * the state

must, in response to a request for a bill of particulars or demand for discovery, supply

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

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

Further, “[a] trial court must consider two questions when a defendant requests

specific dates, times, or places on a bill of particulars: whether the state possesses the

specific information requested by the accused, and whether this information is material

to the defendant’s ability to prepare and present a defense.” State v. Hensley, 59

Ohio St.3d 136, 141-142, 571 N.E.2d 711 (1991), citing State v. Lawrinson, 49 Ohio

St.3d 238, 239, 551 N.E.2d 1261 (1990).

       {¶19} We are constrained in answering the first question, whether appellant

possess more specific dates as requested by appellee, by the dearth of facts in the

record before us. When it comes to the second question, however, we find that under

the unique circumstances of this case, specific dates as requested by appellee are

material to his ability to prepare and present a defense. Appellee’s criminal culpability

for burglary into his own residence is dependent upon interpretation of a domestic

relations court order and specific dates relating thereto.

       {¶20} We conclude, therefore, that the trial court’s decision to dismiss Count

One of the indictment was not unreasonable, arbitrary or unconscionable, nor was it
an error of law or judgment. We therefore overrule appellant’s sole assignment of

error and affirm the judgment of the Delaware County Court of Common Pleas.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. WILLIAM B. HOFFMAN



                                     HON. SHEILA G. FARMER


PAD:kgb
            IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellant                :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   12 CAA 08 0059
STEPHEN S. HOSTETTER                    :
                                        :
   Defendant - Appellee                 :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. SHEILA G. FARMER
