[Cite as State v. Hedges, 2013-Ohio-1645.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 11-CA-39
ROBERT T. HEDGES, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Court of
                                               Common Pleas, Case No. 10CR382


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        April 22, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


GREGG MARX                                     JAMES L. DYE
Prosecuting Attorney                           P.O. Box 161
Fairfield County, Ohio                         Pickerington, Ohio 43147
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 11-CA-39                                                  2

Hoffman, P.J.


      {¶1}   Defendant-appellant Robert T. Hedges, Jr. appeals his convictions

entered by the Fairfield County Court of Common Pleas. Plaintiff-appellee is the state

of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   On June 1, 2010, A.H., a five year-old girl, told her babysitter she was

experiencing pain while urinating. Subsequently, A.H. was taken to Fairfield Medical

Center for examination, treatment and analysis. A.H. was also interviewed at Fairfield

County Child Advocacy Center, during which she indicated she was touched by her

grandmother's friend.   She stated that person touched her under her clothes and

underwear with his fingers. She then pointed to the circled vagina on an anatomical

drawing. A.H. stated the room had "a lot of bunnies" and was "pink, pink, pink." She

indicated the person had no hair on his head.

      {¶3}   Detective Eric Duemmel of the Lancaster City Police Department

investigated the home of A.H's grandmother where Appellant also resided. Evidence at

trial established Appellant has no hair on his head, and occupied a room in the

residence with pinkish color wall paper and rabbits in the room.

      {¶4}   An employee of the Ohio Bureau of Criminal Investigation, Cindy Erwin,

conducted a polygraph examination of Appellant. Following the polygraph, Appellant

told Erwin he had been drinking, came home and went directly to his room. The next

thing he realized was somebody standing beside him. He put his hand against her

vagina or on her vagina. Appellant told Erwin he put his hands in A.H.'s pants. He then
Fairfield County, Case No. 11-CA-39                                                      3


dropped his head, got quiet and nodded yes when asked if he would prefer to talk to

Detective Duemmel.

      {¶5}      Appellant told Detective Duemmel he touched A.H.'s vagina. He had been

out drinking, and went to lie down on his bed. He stated A.H. came into his room,

walked up beside his bed, and stood beside the bed. He lifted her nightgown and

touched her vagina. He indicated he pulled down her underwear, and used his other

hand to touch her vagina. Appellant indicated there was penetration.

      {¶6}      On September 17, 2010, Appellant was indicted by the Fairfield County

Grand Jury on one count of rape, in violation of R.C. 2907.02(A), and one count of

gross sexual imposition, in violation of R.C. 2907.05(A).

      {¶7}      Appellant filed a motion to suppress the statements made immediately

following the polygraph examination. The trial court conducted a hearing on the motion

to suppress on April 27, 2011. The trial court overruled the motion to suppress via

Judgment Entry of May 12, 2011.

       {¶8}     The matter proceeded to jury trial. Appellant made a Criminal Rule 29

motion for acquittal following the presentation of the state's case.       The trial court

overruled the motion. Appellant did not call any witnesses, nor present a defense to the

state's case.    The jury found Appellant guilty on both counts.     The trial court then

sentenced Appellant on the rape charge to a term of fifteen years to life, finding the rape

count and GSI count allied offenses of similar import and merged for the purposes of

sentencing.

       {¶9}     Appellant now appeals, assigning as error:
Fairfield County, Case No. 11-CA-39                                                        4


       {¶10} “I. THE TRIAL COURT ERRED AND THEREBY DEPRIVED APPELLANT

OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE

PROVISIONS OF THE OHIO CONSTITUTION BY DENYING APPELLANT’S MOTION

TO SUPPRESS.

       {¶11} “II. THE DEFENDANT’S STATEMENTS MUST BE SUPPRESSED AS

THE STATE OF OHIO FAILED TO RECORD THE FOLLOW UP INTERROGATION,

OR FAILED TO MAINTAIN THOSE RECORDINGS.

       {¶12} “III. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

SECOND MOTION FOR A BILL OF PARTICULARS REQUESTING A MORE

SPECIFIC DATE OF THE ALLEGED INCIDENT.”

                                            I & II

       {¶13} Appellant's first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶14} Appellant maintains the trial court erred in denying his motion to suppress.

       {¶15} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio

St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,

86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court

failed to apply the appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the trial court for committing an error of law. State v.
Fairfield County, Case No. 11-CA-39                                                     5

Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings

of fact are not against the manifest weight of the evidence and it has properly identified

the law to be applied, an appellant may argue the trial court has incorrectly decided the

ultimate or final issue raised in the motion to suppress. When reviewing this type of

claim, an appellate court must independently determine, without deference to the trial

court's conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio

App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in

Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal.”

         {¶16} Specifically, Appellant asserts he was in custody at the time he made his

incriminating statements; therefore, he should have been afforded his Miranda warnings

prior to the statements.      Appellant maintains a reasonable person would have

understood he was not free to leave the scene, and would have felt his freedom of

movement restrained. United States v. Bengivena (1988), 845 F.2d 593.

         {¶17} Appellant states the interview lasted approximately five hours. He was

driven to the interview by a detective, over an hour from home, and had no way to

leave.    Appellant concludes a reasonable person would have believed himself in

custody under the circumstances. Berkemer v. McCarty (1984), 468 U.S. 420.

         {¶18} In addition, Appellant maintains the trial court erred in overruling the

motion to suppress because the State failed to record the interrogation which occurred

subsequent to the polygraph examination, or failed to retain the recordings if made. We
Fairfield County, Case No. 11-CA-39                                                    6


find Appellant has not affirmatively demonstrated prejudice as a result of the alleged

failure of the State as the outcome of the trial would not have been otherwise if the

recordings would have been made and/or available.

      {¶19} Appellant demanded the polygraph examination and was informed there

would be a post-examination interview before he began the test.           Appellant was

informed of his rights prior to the commencement of the examination, including his right

to remain silent and his right to counsel. He was informed he was free to terminate the

interview, as he had done on a prior occasion. Further, Appellant was promised a ride

home without regard to the results of the examination or the interview. We find a

reasonable person would have understood they were not in custody, and Appellant’s

freedom of movement was not restrained. Accordingly, we find the trial court did not err

denying Appellant's motion to suppress.

      {¶20} Again, Appellant has not demonstrated prejudice as a result of the State’s

failure to provide a transcript of the interview.   The record demonstrates Appellant

requested the polygraph examination, was informed of the post-interview, and orally

and in a signed writing made a statement admitting to the conduct at issue.

      {¶21} The first and second assignments of error are overruled.

                                              III

      {¶22} In the third assignment of error, Appellant argues the trial court erred in

overruling his motion for a second bill of particulars requesting a more specific date of

the alleged incident.   Appellant cites the Ohio Supreme Court's holding in State v.

Sellards (1985), 17 Ohio St.3d 169, in support,
Fairfield County, Case No. 11-CA-39                                                         7


       {¶23} "Ordinarily, precise times and dates are not essential elements of

offenses. Thus, the failure to provide dates and times in an indictment will not alone

provide a basis for dismissal of the charges. A certain degree of inexactitude of

averments, where they relate to matters other than elements of the offense, is not per

se impermissible or necessarily fatal to a prosecution.

       {¶24} "An accused is not foreclosed from securing specificity of detail, however,

for R.C. 2941.07 provides that upon a request for a bill of particulars, ' * * * the

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

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

offense.' 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 (1970), 24 Ohio App.2d 74, 263 N.E.2d 917 [53 O.O.2d 195]; State v. Dinsio

(1964), 4 Ohio App.2d 309, 212 N.E.2d 606 [33 O.O.2d 353]. A bill of particulars is not

designed to provide the accused with specifications of evidence or to serve as a

substitute for discovery. State v. Wilson (1972), 29 Ohio St.2d 203, 280 N.E.2d 915 [58

O.O.2d 409]. Thus, ' * * * [o]rdinarily, specifications as to date and time would not be

required in a bill of particulars since such information does not describe particular

conduct, but [instead describes] only when that conduct is alleged to have occurred,

knowledge of which * * * is generally irrelevant to the preparation of a defense.'

(Emphasis sic.) State v. Gingell (1982), 7 Ohio App.3d 364, 367, 455 N.E.2d 1066.

       {¶25} "While temporal information is generally irrelevant in preparing a defense,

this court agrees with the court in Gingell, supra, that the state must, in response to a

bill of particulars or demand for discovery, supply specific dates and times with regard to
Fairfield County, Case No. 11-CA-39                                                    8

an alleged offense where it possesses such information. As was stressed in Gingell at

368, 455 N.E.2d 1066: ' * * * No door, however remote and uncertain, ought to be

closed to an accused engaged in the task of preparing a defense to a criminal charge.

Clearly it is wisest to err on the side of openness and disclosure.'

       {¶26} "The exercise of good faith on the part of the prosecution is essential in

maintaining public trust and confidence in the integrity of our criminal justice system.

Adherence to the above-stated rule will insure that no constitutional right of an accused

to due process or a fair trial will be transgressed.

       {¶27} "This court would hasten to add that inexactitude, even where the state is

simply unable to comply with times and dates more specific than those found in the

indictment, may also prove fatal to prosecution. Such would be the case if the absence

of specifics truly prejudices the accused's ability to fairly defend himself."

       {¶28} The indictment in this matter alleges Appellant "During the time period

between the 1st day of June 2009 and the 1st day of June 2010…" It specifies a one

year time period within which Appellant is alleged to have committed the conduct.

       {¶29} As set forth in Sellards, supra, the State must supply specific dates and

times where the State possesses said information. However, where [as here] the State

acts in good faith, and does not possess the information due to the nature of the

conduct and the age of the victim, a trial court does not err in denying the motion. In a

case such as this involving a sexual crime committed against a minor, we find one year

is not an unreasonable period of time to consider in preparation of a defense where

date and time are not an essential element of the offense and the age of the child is not

an issue. Id.
Fairfield County, Case No. 11-CA-39                                                9


      {¶30} The third assignment of error is overruled.

      {¶31} Appellant's convictions in the Fairfield County Court of Common Pleas are

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE
Fairfield County, Case No. 11-CA-39                                               10


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
ROBERT T. HEDGES, JR.                     :
                                          :
       Defendant-Appellant                :         Case No. 11-CA-39


       For the reasons stated in our accompanying Opinion, Appellant's convictions in

the Fairfield County Court of Common Pleas are affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
