[Cite as State v. Owens, 2015-Ohio-3017.]

                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        GALLIA COUNTY


State of Ohio,                               :             Case No. 14CA9

        Plaintiff-Appellee,                  :
                                                           ENTRY
        v.                                   :

Anthony Owens,                               :

        Defendant-Appellant.                 :      RELEASED: 7/16/2015

______________________________________________________________________
McFARLAND, A.J.,

        {¶1}    Owens filed a motion requesting access to the transcript of the grand jury

proceedings that has been filed under seal as part of the appellate record. We denied his

motion on the ground that that he must first petition the supervising court, the Common

Pleas Court of Gallia County, under Crim R. 6(E). If that court should decline to address

Owens’ petition because it cannot adequate assess Owens’ need for the material, then we

may address the merits. State v. Owens, 4th Dist. Gallia App. No. 14CA9, 2015-Ohio-

1856, ¶ 11. Owens has now filed a renewed motion for access to the grand jury

transcripts, arguing that his motion is now properly before us because his petition to the

trial court was denied. The trial court determined “that it cannot adequately assess

Defendant’s need for a grand jury transcript in the context of effective appellate advocacy.”

State v. Owens, Gallia C.P. No. 11CR115 (June 10, 2015).

        {¶2}    The state argues that the trial court’s decision is insufficient to permit this

Court to review Owens’s motion because it was not a “written evaluation.” We disagree.

The trial court expressly stated that it could not adequately assess Owens’s need for the

transcript because the case is now at the appellate court level and Owens’s need arises
Gallia App. No. 14CA9                                                           2


within the appellate context. We find this to be a written evaluation sufficient to permit us
                                                                     th
to proceed to address his motion on the merits. See State v. Owens, 4 Dist. Gallia App.

No. 14CA9, 2015-Ohio-1856, ¶ 11.

       {¶3}   Alternatively, the state argues that Owens has already filed his appellate

brief, thus he no longer has a need to review the grand jury transcript. The state claims

that Owens can neither supplement his brief nor can he raise new issues in a reply brief.

The cases the state cites in support of its alternative argument all concern the bar against

raising a new issue in a reply brief. None of the cases support the state’s argument that

this Court could not permit a supplemental filing. Here, Owens has made an argument in

his appellate brief that, based upon the trial court docket, there was an unauthorized

person present before the grand jury in violation of Crim.R. 6(D). We can permit Owens,

upon request, to file a supplemental brief to provide additional information from the grand

jury transcript that would support this argument – no new issue is raised by such a
                                      rd
supplementation. See State v. Grier, 3 Dist. App. No. 3-10-09, 2011-Ohio-902, ¶ 6 (court

granted appellant’s motion to file supplemental brief).

       {¶4}   Owens argues that he has a particularized need for access to the grand jury

transcript because: (1) the grand jury was conducted by an unauthorized person in

violation of Crim.R. 6(D) and R.C. 2939.10 and (2) he believes there may have been

inconsistencies between the victim’s grand jury and trial testimony. Because the case has

been tried, witness testimony given in a public forum, and a jury verdict rendered, Owens

argues that the balance weighs heavily in his favor as the need for secrecy no longer

exists. The state argues that Owens has not shown a particularized need because, even

assuming an unauthorized person was present, he has no need to find out what the

unauthorized person may have said or did. The state does not address whether there
Gallia App. No. 14CA9                                                          3


continues to be a need to maintain the secrecy of the grand jury proceedings at the

appellate stage.

       {¶5}   After reviewing the memoranda and the relevant law, we GRANT IN PART

and DENY IN PART Owens’s motion.

                                                   I.

       {¶6}   Crim.R. 6(E) provides that matters other than the deliberations of a grand

jury or the vote of a grand juror may be disclosed “only when so directed by the court

preliminary to or in connection with a judicial proceeding * * *.”

       {¶7}   Upon a motion from the defendant, the trial court considers “the basis of the

particularized need advanced by the defendant.” State v. Greer, 66 Ohio St.2d 139, 150,

420 N.E.2d 982 (1981). In considering the basis of the particularized need, the trial court

may perform an in camera inspection of the grand jury matters assisted by counsel. Id. In

Greer, the Supreme Court of Ohio explained the process to follow after the defendant has

shown a particularized need:

       [O]nce a particularized need for the grand jury material is shown, the
       necessity of preserving grand jury secrecy is lessened, largely because the
       witness, in testifying at trial, has given up any anonymity he might have had
       and has made public the events which are the subject of the grand jury
       testimony being sought. Under such circumstances, when there is a
       balancing of the often minimal need to preserve secrecy against the need for
       the defendant to review certain portions of the grand jury testimony, we
       conclude that all relevant portions of the transcript should be produced, with
       the trial court deleting extraneous matters, and issuing protective orders
       where necessary. (Emphasis added).

Greer at 150-151. “Determining whether a particularized need exists is a matter within the

trial court's discretion.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d

596, ¶ 41, citing Greer at paragraph one of the syllabus.

       {¶8}   The “particularized need” test as formulated in Laskey, infra, Patterson, infra,
Gallia App. No. 14CA9                                                             4


and Greer, supra, all involve motions made to the trial court before or during trial. See

State v. Laskey, 21 Ohio St.2d 187, 257 N.E.2d 65 (1970)(motion made prior to trial to

assist with preparation); State v. Patterson, 28 Ohio St.2d 181, 277 N.E.2d 201

(1971)(motion made prior to trial as part of discovery). Here, Owens is seeking disclosure

of grand jury proceedings from the appellate court after trial for purposes of more

effectively advocating his appeal. Thus, we must determine if the “particularized need” test

used by trial courts to determine whether to disclosure grand jury matters before or during

trial is the standard applicable to petitions made in other courts for disclosures post-trial.

       {¶9}   In Petition for Disclosure of Evidence Presented to Franklin Cty. Grand

Juries in 1970, 63 Ohio St.2d 212, 218, 407 N.E.2d 513 (1980), the Court held that

disclosures of grand jury matters can be disclosed in both civil and criminal actions. “Such

disclosure can be ordered only after the court carefully weighs the need to maintain the

secrecy of the grand jury proceedings against petitioner’s need for the information and

determines that justice can only be done if disclosure is made.” Id. Thus, the particularized

need test applies both to petitions for grand jury materials made before or during the

criminal trial and to petitions made in other criminal or civil proceedings: “In the case at bar

* * * if a sufficient showing of need was made, some of their [grand jury] testimony could

be disclosed without eroding the grand jury system.” Id. at 220; see also State v. Greer, 66

Ohio St.2d 139, 148, 420 N.E.2d 982 (“In [Petition for Disclosure], this court again referred

to the particularized need test in the allowance of grand jury testimony to be used in a civil

trial, upon a satisfactory showing * * * that the petitioner’s or movant’s need for the

information outweighs the need to maintain the secrecy of the grand jury proceedings.”);
                                                                         th
Wurth v. Emro Marketing Co., 125 Ohio App.3d 494, 499, 708 N.E.2d 1057 (6 Dist.

1998)(“in Petition for Disclosure, supra, the court determined that the particularized need
Gallia App. No. 14CA9                                                            5


test was equally applicable to civil cases in which a movant sought access to a witness's

grand jury testimony in a prior criminal matter”); Craig v. Lima City Schools Bd. of

Edn.,384 F. Supp.2d 1136 (N.D. Ohio 2005)(under Ohio law, “the ‘particularized needs’

test applies regardless of the type of case involved”); contra State v. Webb, 2nd Dist. App.

No. 2005CA52, 2006-Ohio-1113, ¶ 27, 33 (Grady, P.J., dissenting and arguing that

instead of applying a particularized needs test, Petition for Disclosure established a

“broader and more general standard of what ‘justice requires’” where a petition for grand

jury materials is made in a different forum and finding that the court “should have applied

the broader ends of ‘justice’ standard”). Thus, we apply the particularized needs test to

Owens’s request.

                                                  II.

  A. Allegations of Unauthorized Persons in Violation of Crim.R. 6(D) and R.C. 2939.10

       {¶10} Owens argues that he needs access to the grand jury transcript because he

believes persons other than those permitted under Crim.R. 6(D) and R.C. 2939.10 were in

the presence of the grand jury. Specifically, he claims that a representative of the Ohio

Attorney General’s Office called, swore and examined witnesses, advised the grand jurors,

and advocated for the return of an indictment all when she was not authorized to do any of

these things.

       {¶11} Ohio courts give strict interpretation to R.C. 2939.10 and Crim.R. 6(D) and

find error where a trial court permits persons not explicitly authorized by the statute or rule

to be present.

              Ohio courts have applied a strict reading of R.C. 2939.10 and Ohio R.
       Crim. P. 6(D) when addressing challenges to the validity of indictments
       based on the presence of unauthorized persons in the grand jury room
       during grand jury proceedings. In order to protect the “very secretive nature”
       of grand jury proceedings, “[t]he information so given to the grand jury may
Gallia App. No. 14CA9                                                           6


       not be revealed to any person other than the grand jury, and others who by
       law are permitted to listen to grand jury testimony.”In re Klausmeyer, 24 Ohio
       St. 2d 143, 146, 265 N.E.2d 275 (1970) (emphasis added). Ohio courts
       consistently have found that a person not explicitly authorized by rule or
       statute may not be present while the grand jury is in session. E.g., State v.
       Jewell, No. CA448, 1990 Ohio App. LEXIS 3859, at *24 (Vinton County Aug.
       22, 1990) (erroneous for trial court to permit a children's services caseworker
       to be present while minor child testified); State v. Ogletree, No. 9768, 1987
       Ohio App. LEXIS 8303, at *6 (Montgomery County Aug. 14, 1987) (“accused
       does not have the right to appear before or attend grand jury proceedings,
       either personally or by counsel”).

2011 Ohio Atty.Gen.Ops.No. 2011-004, *2. The presence of an unauthorized person

during grand jury proceedings may be sufficient to set aside an indictment where prejudice

to the accused is shown. Id. at *4; State v. Stulls, 78 Ohio App.3d 68, 72, 603 N.E.2d 1123
  th
(6 Dist. 1991). In Stulls, a special investigator for the prosecutor’s office who specialized

in preparing and investigating cases involving alleged sexual offenses against children

was present in the grand jury room while testimony was being taken. The appellate court

reviewed the investigator’s statements and actions and found that her functions were very

limited and she did not assist the prosecutor in the presentation of his case, thus there

was no prejudice to the accused and the trial court should not have dismissed the

indictment:

       The facts before this court indicate only that, in this hearing before the grand
       jury, Linda Connors operated a tape-recording device, kept track of
       witnesses who appeared before the grand jury, and filled out forms to assist
       the prosecutor in responding to discovery. While she was placed in a
       position where she potentially could have responded to questions from
       Meyers, thus assisting him in the presentation of his case, she did not
       respond in a way that was prejudicial to appellee and, thus, in this instance,
       no error occurred. We do not find that the functions she performed, in
       addition to being an operator of a tape-recording device, were in any way
       prejudicial to the appellee.
                                                                th
State v. Stull, 78 Ohio App. 3d 68, 72, 603 N.E.2d 1123, 1126 (6 Dist. 1991).

       {¶12} Here, Owens argues that the trial court judge stated at arraignment that the
Gallia App. No. 14CA9                                                           7


case was presented to the grand jury by a representative of the Ohio Attorney General’s

Office and Owens contends that this representative’s presence was without appointment

or authorization. As a result, he argues that the representative was an unauthorized

person under R.C. 2939.10 and Crim.R. 6(D). Violations of Crim.R. 6(D), while not

requiring the “automatic reversal of a subsequent conviction regardless of the lack of

prejudice,” nevertheless are subject to a review to determine if it affected a substantial

right under Crim.R. 52(A). U.S. v. Mechanik, 475 U.S. 66, 71, 106 S.Ct. 938, 89 L.Ed.2d

50 (1986) (discussing the federal version of Ohio’s Crim.R. 6 and rejecting the appellate

court’s decision that a violation of Fed.R.Crim.P. 6(d) requires an automatic reversal of the
                                                                         th
conviction without determining if prejudice resulted); State v. Jewell, 4 Dist. Vinton App.

No. CA448, 1990 WL 127049 (Aug. 22, 1990) (any error in the presence of unauthorized

caseworker at the grand jury proceedings was harmless under Crim.R. 52(A)). Accordingly

we find that Owens has stated a particularized need for access to portions of the grand

jury transcript that show the presence, statements, and functions of this alleged

unauthorized person. Because we find Owens has shown a particularized need for the

grand jury transcript, we must weigh the need to maintain the secrecy of the grand jury

proceedings against Owen’s need for the information.

       {¶13} We review the factors enumerated in Petition for Disclosure as quoted from

U.S. v. Rose, 215 F.2d 617, 628-629 (3rd Cir. 1954):

       “(1) To prevent the escape of those whose indictment may be
       contemplated; (2) to insure the utmost freedom to the grand jury in its
       deliberations, and to prevent persons subject to indictment or their
       friends from importuning the grand jurors; (3) to prevent subornation of
       perjury or tampering with the witnesses who may testify before grand
       jury and later appear at the trial of those indicted by it; (4) to encourage
       free and untrammeled disclosures by persons who have information
       with respect to the commission of crimes; (5) to protect innocent
Gallia App. No. 14CA9                                                            8


       accused who is exonerated from disclosure of the fact that he has been
       under investigation, and from the expense of standing trial where there
       was no probability of guilt.”

Petition for Disclosure, at 219. Additionally, we recognize that an interest in secrecy still

exists even though the grand jury has ended its activities:

       For in considering the effects of disclosure on grand jury proceedings, the
       courts must consider not only the immediate effects upon a particular grand
       jury, but also the possible effect upon the functioning of future grand juries.
       Persons called upon to testify will consider the likelihood that their testimony
       may one day be disclosed to outside parties. Fear of future retribution or
       social stigma may act as powerful deterrents to those who would come
       forward and aid the grand jury in the performance of its duties. Concern as to
       the future consequences of frank and full testimony is heightened where the
       witness is an employee of a company under investigation. Thus, the interests
       in grand jury secrecy, although reduced, are not eliminated merely because
       the grand jury has ended its activities. (Emphasis added).

Id. at 217, quoting Douglas Oil Co. v. Petro Stops Northwest, 441 U.S. 211, 222-223, 9

S.Ct. 1667, 60 L.E.2d 156 (1979). And, we must account for our ability to place protective

limitations on any disclosure ordered to shield those who volunteered information. Id. at

219.

       {¶14} Based on all of these considerations, we find that the interest in secrecy is

not greater than the need for disclosure. Of the five Rose factors, concerns about escape,

witness tampering or importuning of grand jurors, and protection of the innocent accused

are not present here. However, concerns with freedom in grand jury deliberations and the

encouragement of free and untrammeled disclosures by persons with information are

always present because, as stated in Douglas Oil, supra, “Persons called upon to testify

will consider the likelihood that their testimony may one day be disclosed to outside

parties. Fear of future retribution or social stigma may act as powerful deterrents to those

who would come forward and aid the grand jury in the performance of its duties.”
Gallia App. No. 14CA9                                                             9


Nevertheless, we can eliminate this concern and still address Owens’s needs by providing

only those portions of the grand jury transcript that show the presence, statements, and

functions of persons presenting the case to the grand jury, other than the witnesses under

examination. If the identity and testimony of witnesses are redacted in the portions of the

grand jury transcript disclosed to Owens, he will still be able to determine the identities of

individuals who presented the case before the grand jury, argue whether these individuals

were unauthorized, and argue whether their unauthorized presence was prejudicial to him.

Persons who made open, candid, and untrammeled disclosures in this case will not “fear

future retribution or social stigma that may act as powerful deterrents” because their

testimony will remain secret.

                                B. Grand Jury Testimony of Child Victim

       {¶15} Owens argues that he is entitled to review the grand jury transcript because

he believes that the child victim must have given inconsistent testimony to the grand jury.

He claims that he is entitled to know what testimony was given to the grand jury

concerning count three of the indictment. He argues that count three of the indictment

charged that he forced the child victim to touch his erogenous zone, but that the child

victim’s testimony at trial did not support this charge. Owens argues that his defense at

trial focused on the child victim’s inherent inconsistencies and any additional

inconsistencies that might have occurred in her grand jury testimony are crucial to his

defense. And, he argues that any inconsistencies that might exist would call into question

the trial court’s determination that the victim’s statements corroborate each other.

       {¶16} Owens’s speculation concerning possible inconsistencies in the child victim’s

grand jury testimony does not state a particularized need. State v. Mack, 73 Ohio St.3d

502, 508, 1995-Ohio-273, 65 N.E.2d 329 (1995):
Gallia App. No. 14CA9                                                            10


               When a defendant “speculates that the grand jury testimony might
       have contained material evidence or might have aided his cross-examination
       * * * by revealing contradictions,” the trial court does not abuse its discretion
       by finding the defendant had not shown a particularized need. State v. Webb
       (1994), 70 Ohio St.3d 325, 337, 638 N.E.2d 1023, 1034.

Because we find that Owens does not state a particularized need to review the grand jury

transcript for possible inconsistencies in the child victim’s testimony, we will not order the

disclosure of the grand jury transcripts on this ground.

                                              III.

       {¶17} In view of the trial court’s determination that it cannot adequately assess

Owens’s need for a grand jury transcript in the context of effective appellate advocacy, we

may now properly address the merits of Owens’s motion for disclosure of grand jury

materials. We find that he has shown a particularized need to review the grand jury

transcript as it relates to his argument that there was an unauthorized person in the

presence of the grand jury in violation of Crim. R. 6(E) and R.C. 2939.10. The interest in

grand jury secrecy does not outweigh his need for access as long as we place protective

limitations on the disclosure. We will conduct an in camera review of the grand jury

transcript and provide access to portions of the grand jury transcript that show the

presence, statements, and functions of persons presenting the case to the grand jury,

other than the witnesses under examination. The court will issue a notice to the parties

when the redacted portions of the grand jury transcript are available for review. However,

Owens has failed to show a particularized need for the grand jury transcript as it relates to

his argument concerning possible inconsistencies in the child victim’s testimony and his

access is denied on this ground. Therefore, we GRANT IN PART and DENY IN PART,

Owens’s motion.

       {¶18} The court reporter is ORDERED to send this Court the grand jury transcript
Gallia App. No. 14CA9                                                         11


under seal. We will then review the transcript in camera and redact portions in accordance

with this entry. We then will make arrangements with counsel to review the transcript in

accordance with this entry.

      {¶19} The clerk of courts shall serve a copy of this order on all counsel of record

and upon the court reporter at their last known addresses by ordinary mail.

       MOTION GRANTED IN PART AND DENIED IN PART. IT IS SO ORDERED.

Harsha, J. & Abele, J.: Concur.



                                        FOR THE COURT


                                        ________________________________
                                        Matthew W. McFarland
                                        Administrative Judge
