[Cite as State v. Carr, 2019-Ohio-3802.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 28193
                                                 :
 v.                                              :   Trial Court Case No. 2016-CR-745/2
                                                 :
 BRANDON CHARLES CARR                            :   (Criminal Appeal from
                                                 :    Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 20th day of September, 2019.

                                            ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

BRANDON CHARLES CARR, #A742-713, P.O. Box 120, Lebanon, Ohio 45036
    Defendant-Appellant, Pro Se

                                           .............

FROELICH, J.
                                                                                         -2-


       {¶ 1} Following a jury trial, Brandon Charles Carr was convicted of 13 offenses,

together with gun specifications as to six of those offenses. Carr filed separate appeals

from his March 13, 2018 judgment of conviction and from a July 12, 2018 post-judgment

decision of the trial court, which appeals have been consolidated and remain pending

before this court. See State v. Carr, 2d Dist. Montgomery C.A. Nos. 27960 and 28080.

Carr’s current appeal challenges an additional post-judgment order issued by the trial

court on October 11, 2018. The October 11, 2018 judgment of the trial court will be

affirmed.

                         Factual and Procedural Background

       {¶ 2} In February 2016, Brittany Russell was discovered inside her car in the

parking lot of a Dayton apartment complex, dead from bullet wounds to the head.

Russell’s infant daughter was found unharmed in the back seat.

       {¶ 3} On March 23, 2017, a Montgomery County grand jury indicted Carr on 12

counts related to Russell’s death: Count One, aggravated murder (while committing

felony murder) in violation of R.C. 2903.01(B), an unclassified felony; Count Two, murder

(purposeful) in violation of R.C. 2903.02(A), an unclassified felony; Counts Three and

Four, murder (proximate result) in violation of R.C. 2903.02(B), both unclassified felonies;

Count Five, kidnapping (felony or flight) in violation of R.C. 2905.01(A)(2), a first-degree

felony; Count Six, kidnapping (terrorize/physical harm) in violation of R.C. 2905.01(A)(3),

a first-degree felony; Count Seven, felonious assault (deadly weapon) in violation of R.C.

2903.11(A)(2), a second-degree felony; Count Eight, felonious assault (serious physical

harm) in violation of R.C. 2903.11(A)(1), a second-degree felony; Counts Nine and Ten,

tampering with evidence (alter/destroy) in violation of R.C. 2921.12(A)(1), both third-
                                                                                          -3-


degree felonies; Count Eleven, endangering children (abuse) in violation of R.C.

2919.22(B)(1), a first-degree misdemeanor; and Count Twelve, having weapons under

disability (prior drug conviction) in violation of R.C. 2923.13(A)(3), a third-degree felony.

The indictment also charged Carr with firearm specifications as to Counts One through

Eight. On April 11, 2017, another indictment under the same case number charged Carr

with a single count of possession of heroin (50 grams but less than 250 grams) in violation

of R.C. 2925.11(A), a first-degree felony. Carr pled not guilty to all charges under both

indictments.

       {¶ 4} On January 16, 2018, Carr moved to dismiss the charges against him, based

in part on the pre-indictment destruction of Russell’s car and any evidence it may have

contained. The trial court orally denied that motion after a hearing. (See Montgomery C.A.

No. 28193, Doc. #321.)1 On January 27, 2018, Carr moved for reconsideration of the

decision denying his motion to dismiss (“first motion to reconsider”). The court did not

address that motion for reconsideration before the case proceeded to a jury trial beginning

on January 29, 2018.

       {¶ 5} Prior to trial, Carr waived a jury as to the Count Twelve charge of having

weapons under disability, opting to allow the trial court to decide that count. (See Case

No. 28193, Doc. #324.) The drug charge contained in the second indictment therefore

became Count Twelve as submitted to the jury. On the final day of trial, after discussing



1
 In his Motion to Reconsider Motion to Dismiss, Carr avers that the trial court overruled
his motion to dismiss “at the conclusion of a non-evidentiary hearing held on January 22,
2018.” (See Doc. #321.) Similarly, the trial court later acknowledged that it “did not issue
a written decision” regarding Carr’s original motion to dismiss. (See 7/12/18 Nunc Pro
Tunc Order).
                                                                                           -4-


Carr’s motion for reconsideration and considering certain testimony presented, the court

issued a written order phrased as a denial of Carr’s motion to dismiss. (See 2/6/18 Order

Denying Motion to Dismiss.)

       {¶ 6} The jury found Carr guilty of Counts One through Twelve (the drug count

under indictment B) and of the firearm specifications to Counts One through Five and

Eight; the jury found Carr not guilty of the firearm specifications to Counts Six and Seven.

The trial court also found Carr guilty of having weapons under disability. On March 13,

2018, the court merged certain counts and sentenced Carr to an aggregate prison term

of life without parole, plus an additional 34 years. The same judgment entry ordered Carr

to pay restitution in the amount of $4,028 to Vivian Mills.2 Carr filed a timely notice of

appeal from that judgment of conviction. See Case No. 27960.

       {¶ 7} On July 7, 2018, with his direct appeal pending, Carr filed a pro se motion in

the trial court, asking the court to “journalize” a decision on his January 27, 2018 motion

for reconsideration of the denial of his motion to dismiss. On July 12, 2018, the trial court

granted that motion in part and entered a nunc pro tunc order amending the February 6,

2018 Order Denying Motion to Dismiss to reflect that such order denied both Carr’s motion

to dismiss and his later motion for reconsideration of the motion to dismiss.

       {¶ 8} On July 27, 2018, Carr filed a motion for reconsideration of the trial court’s

July 12, 2018 nunc pro tunc order (“second motion to reconsider”). Shortly thereafter, he

filed a notice of appeal from the same decision. See Case No. 28080.

       {¶ 9} Carr subsequently filed a series of pro se motions in the trial court. Pertinent



2
 The trial court’s October 11, 2018 order on Carr’s later motions identifies Mills as Brittany
Russell’s sister.
                                                                                            -5-


to the instant appeal, on August 6, 2018, he filed a motion to stay the restitution award

included in his judgment of conviction; on August 20, 2018, he filed a motion pursuant to

R.C. 149.43(B)(8) for copies of the jury verdict forms; and on August 29, 2018, he filed a

motion for grand jury testimony from his case, purportedly to support a petition for

postconviction relief.

       {¶ 10} On October 11, 2018, the trial court issued a decision ruling on those and

other post-judgment pro se motions filed by Carr. The court denied Carr’s motion to

reconsider the July 12, 2018 nunc pro tunc order, finding that such order properly

corrected a clerical mistake, and further finding that the court lacked jurisdiction to

reconsider that order given Carr’s pending appeal in Case No. 28080. As to the restitution

order, the court found that it lacked statutory authority to stay the payment of restitution

and further indicated that “it would decline to exercise” such authority in Carr’s case, even

if such authority existed. With regard to Carr’s request for copies of the jury verdict forms,

the court determined that verdict forms bearing the names of jurors “are not public

records” subject to production under R.C. 149.43(B)(8), and that Carr also “ha[d] not

shown that the information sought in the jury verdict forms is necessary to support a

justiciable claim.” Finally, with respect to Carr’s motion for grand jury testimony, the court

held that it lacked jurisdiction to consider that request because Carr had not filed a petition

for postconviction relief and no other pending criminal matters in his case required

additional discovery. The court further invoked its discretion to deny that request due to

Carr’s failure “to show a particularized need for the grand jury testimony.”

       {¶ 11} Carr appeals from the October 11, 2018 judgment, asserting these four

assignments of error:
                                                                                            -6-


       1) [The] Trial Court erred and violated Mr. Carr’s U.S. Constitutional Right

       to Substantive and Procedural Due Process when it denied Mr. Carr’s

       Motion for Reconsideration pertaining to the unlawful NUNC PRO TUNC

       entry while also holding the Trial Court does not have Jurisdiction to

       Reconsider.

       2) [The] Trial Court abused its Discretion when it denied Mr. Carr’s Motion

       to Stay Restitution.

       3) [The] Trial Court violated Mr. Carr’s U.S. [C]onstitutional right to

       Substantive and Procedural Due Process when the Trial Court denied Mr.

       Carr’s request for Jury Verdict Form.

       4) Mr. Carr’s Constitutional Right to Substantive and Procedural Due

       Process was violated when the Trial Court denied Carr’s request for Grand

       Jury Transcript’s Testimony [sic] when M[r]. Carr showed a Particularized

       Need.

       {¶ 12} We will address these assignments of error in the order most conducive to

our review.

                 Assignment of Error #2 – Motion to Stay Restitution

       {¶ 13} Carr contends that the trial court erred by denying his motion to stay the

payment of restitution. Carr claims to have established his indigent status in the trial court.

He further argues that deducting restitution payments from his prison account is “pre-

mature” because his direct appeal remains pending and the judgment against him could

be reversed.

       {¶ 14} Trial court decisions regarding restitution are subject to review under an
                                                                                          -7-

abuse of discretion standard. State v. Jacobs, 2018-Ohio-671, 106 N.E.3d 897, ¶ 10 (2d

Dist.), citing State v. Amburgey, 2d Dist. Greene No. 2010 CA 14, 2011-Ohio-748, ¶ 130;

State v. Moore, 2d Dist. Clark No. 2010 CA 55, 2010-Ohio-6226, ¶ 13. A court abuses its

discretion if its decision as to restitution is “grossly unsound, unreasonable, illegal, or

unsupported by the evidence.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 45 (2d

Dist.), quoting State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345,

¶ 18 (2d Dist.).

       {¶ 15} Although R.C. 2929.18(A)(1) authorizes a trial court to modify “the payment

terms of any restitution ordered,” we on at least one occasion have declined to address

whether a trial court has discretion to stay a restitution order. See State v. Dunson, 2d

Dist. Montgomery No. 26990, 2016-Ohio-8365, ¶ 15, rev’d on other grounds, 156 Ohio

St.3d 180, 2018-Ohio-5213, 124 N.E.3d 787 (“Assuming, without deciding, that a trial

court has discretion to stay the enforcement of restitution, * * *”). Elsewhere, however,

this court has stated that “[a] court lacks the power to grant [a stay of restitution] absent

statutory authority[,] * * * and we are aware of none.” State v. Wilson, 2d Dist. Montgomery

Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 24; see also Dunson at ¶ 24 (Hall, J.,

concurring) (“The trial court is without authority to vacate, waive, suspend, stay, or modify

the restitution owed” where no payment terms have been specified).

       {¶ 16} Other appellate courts also have concluded that trial courts have very

limited authority to implement changes to an earlier restitution order. See, e.g., State v.

Downey, 12th Dist. Clermont No. CA2016-02-006, 2016-Ohio-5778, ¶ 15-18; State v.

Getz, 12th Dist. Butler No. CA2015-08-159, 2016-Ohio-3397, ¶ 13; State v. Corbitt. 5th

Dist. Richland No. 2011-CA-107, 2012-Ohio-3795, ¶ 15; State v. Sekic, 8th Dist.
                                                                                          -8-

Cuyahoga No. 95679, 2011-Ohio-4809, ¶ 47; State v. Purnell, 171 Ohio App.3d 466,

2006-Ohio-6160, 871 N.E.2d 613, ¶ 9 (1st Dist.).

       {¶ 17} The trial court did not abuse its discretion in denying Carr’s motion to stay

restitution. As noted in Wilson at ¶ 24, we are unaware of any statutory authority that

would permit the trial court to revise its restitution order for any purpose other than a

modification of specific payment terms. See R.C. 2929.18(A)(1). Here, no payment terms

had been stated, and Carr did not seek to revise payment terms, but rather to stay

payment. Further, the trial court acted within its discretion in declining to stay Carr’s

restitution obligation based on its conclusion that “the interests of the victim’s sister in

receiving restitution outweigh[ed]” Carr’s cited interest in maintaining a balance in his

prison account in order to cover the cost of mailing legal documents. Moreover, Ohio

Adm. Code 5120-5-03(D) provides that deductions may be made from an inmate account

only if the account retains a $25 balance “for inmate expenditures.” That provision helps

to protect Carr’s ability to maintain funds for mailing expenses and access to the courts.

       {¶ 18} Carr’s second assignment of error is overruled.

               Assignment of Error #3 – Motion for Jury Verdict Forms

       {¶ 19} In his third assignment of error, Carr argues that the trial court violated his

constitutional right to substantive and procedural due process by denying his request for

copies of the jury verdict forms. Carr maintains that the jury verdict forms are public

records subject to production under R.C. 149.43(B)(8) and are necessary to support a

justiciable claim.

       {¶ 20} The statute on which Carr relies provides in pertinent part as follows:

       A public office or person responsible for public records is not required to
                                                                                             -9-


       permit a person who is incarcerated pursuant to a criminal conviction or a

       juvenile adjudication to inspect or to obtain a copy of any public record

       concerning a criminal investigation or prosecution * * *, unless the request

       to inspect or to obtain a copy of the record is for the purpose of acquiring

       information that is subject to release as a public record under this section

       and the judge who imposed the sentence or made the adjudication with

       respect to the person, or the judge’s successor in office, finds that the

       information sought in the public record is necessary to support what

       appears to be a justiciable claim of the person.

R.C. 149.43(B)(8).

       {¶ 21} Although Carr attempts to frame this argument as a constitutional challenge,

he has not articulated facts that support the existence of a due process violation. Absent

a viable constitutional claim, we review a trial court’s ruling under R.C. 149.43(B)(8) for

an abuse of discretion. State v. Stinson, 2019-Ohio-401, ___ N.E.3d ___, ¶ 8 (2d Dist.).

A trial court does not abuse its discretion when it denies a motion under R.C. 149.43(B)(8)

made by a person who has not demonstrated that he has a justiciable claim or that the

public records he seeks are necessary to support such a claim. State v. Reid, 2d Dist.

Montgomery No. 24672, 2012-Ohio-1659, ¶ 13; see also Stinson at ¶ 10.

       {¶ 22} The Supreme Court of Ohio has determined that “[j]uror names, addresses,

and questionnaire responses are not ‘public records’ as contemplated by R.C. 149.43.”

State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117,

781 N.E.2d 180, paragraph one of the syllabus. The jury verdict forms Carr seeks contain

the names of the jurors at Carr’s trial. Accordingly, the trial court did not err in determining
                                                                                         -10-


that those forms are not public records subject to a request under R.C. 149.43(B)(8).

        {¶ 23} Further, the trial court did not abuse its discretion in concluding that Carr

had not demonstrated the existence of a justiciable claim. Establishing a justiciable claim

“ordinarily involves identifying a ‘pending proceeding with respect to which the requested

documents would be material.’ ” State v. Morris, 2d Dist. Montgomery Nos. 26949, 26960,

2017-Ohio-1196, ¶ 30, quoting State v. Wilson, 2d Dist. Montgomery No. 23247, 2009-

Ohio-7035, ¶ 5, quoting State v. Gibson, 2d Dist. Champaign No. 06-CA-37, 2007-Ohio-

7161, ¶ 14. See also State v. Dowell, 8th Dist. Cuyahoga No. 102408, 2015-Ohio-3237,

¶ 7 (“[a] ‘justiciable’ claim is one that is capable of affording appropriate relief and

ordinarily involves identifying a pending proceeding to which the requested documents

would be material.”). (Citation omitted.) In moving for copies of the jury verdict forms,

Carr stated that he was making the request “for all postconviction relief purposes to

present justiciable claims.” He did not identify any pending proceeding, nor did he

articulate how the jury verdict forms would be material to any justiciable claim he may

have.

        {¶ 24} A trial court does not abuse its discretion by denying an R.C. 149.43(B)(8)

motion in which the movant references without elaboration the existence of justiciable

claims. See Stinson, 2019-Ohio-401, ___ N.E.3d ___, at ¶ 10 (finding that defendant’s

“vague reference to ‘any justiciable [c]laims’ failed to show that [he] had any particular

claim to pursue”); State v. Wofford, 12th Dist. Butler No. CA2016-03-057, 2016-Ohio-

7188, ¶ 15 (defendant “cannot sufficiently carry his burden of showing a justiciable claim

by merely alluding to possible future proceedings that could result from access to the

records” requested). (Emphasis sic.) Carr provided no information to substantiate the
                                                                                           -11-


existence of a justiciable claim for postconviction purposes.

       {¶ 25} Carr’s third assignment of error is overruled.

                 Assignment of Error #4 – Motion for Grand Jury Testimony

       {¶ 26} In his fourth assignment of error, Carr again argues that the trial court

violated his constitutional right to substantive and procedural due process – in this

instance, by denying Carr’s motion for a transcript of the grand jury testimony. Carr claims

to have demonstrated a “particularized need” for that evidence through his assertions that

the grand jury testimony of “unidentified witnesses” differed from their trial testimony, that

his second indictment (for heroin possession) resulted from “[p]rosecutorial [m]isconduct,”

and that the prosecution “coach[ed]” certain “unidentified witnesses.” (Appellant’s Merit

Brief, p. 16.)

       {¶ 27} The question of whether a particularized need exists for the disclosure of

grand jury transcripts “rests within the sound discretion of the trial court.” State v. McGill,

2d Dist. Greene No. 99CA25, 2000 WL 1803650, *18 (Dec. 8, 2000), citing State v.

Lawson, 64 Ohio St.3d 336, 345, 595 N.E.2d 902 (1992). “A court’s discretionary decision

will not be overruled on appeal absent an abuse of discretion.” Id. Once again, Carr’s

attempt to frame the issue as a constitutional claim does not alter our standard of review.

       {¶ 28} “Ohio law regards grand jury proceedings as secret, permitting the

disclosure of testimony and other evidence that has been presented to a grand jury only

when ‘the ends of justice require it.’ ” In re January 27, 2017 Order, 2018-Ohio-988, 108

N.E.3d 1170, ¶ 7 (2d Dist.), quoting State v. Coley, 93 Ohio St.3d 253, 261, 754 N.E.2d

1129 (2001) and State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph

two of the syllabus. Despite the long history of secrecy attendant to grand jury
                                                                                         -12-


proceedings, in certain circumstances the court which supervised a grand jury may order

that evidence presented to the grand jury be disclosed. State v. Webb, 2d Dist. Greene

No. 2005 CA 52, 2006-Ohio-1113, ¶ 12, citing Petition for Disclosure of Evidence, 63

Ohio St.2d 212, 218, 407 N.E.2d 513 (1980). Such disclosure may be ordered “only after

the court carefully weighs the need to maintain the secrecy of the grand jury proceedings

against [the] petitioner’s need for the information and determines that justice can only be

done if disclosure is made.” Petition for Disclosure of Evidence at 218.

       {¶ 29} When the request for disclosure is made after trial, the factors to be

considered regarding the need to preserve grand jury secrecy are:

       (1) [t]o 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;

       [and] (5) to protect [an] innocent 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.

Id. at 219, quoting United States v. Rose, 2015 F.2d 617, 628-629 (3d Cir.1954). The

court also must take into account “its ability to place protective limitations on any

disclosure needed.” Id.

       {¶ 30} “The petitioner’s burden to demonstrate ‘ “a particularized need for
                                                                                         -13-


disclosure [that] outweighs the need for secrecy” ’ is, however, ‘a threshold

requirement.’ ” In re January 27, 2017 Order at ¶ 7, quoting State v. Curran, 166 Ohio

App.3d 206, 2006-Ohio-773, 850 N.E.2d 81, ¶ 16 (2d Dist.) and Greer at syllabus. If the

supervising court is able “to effectively decide the extent of petitioner’s need for [grand

jury] information, * * * it should decide whether justice requires that disclosure be made.”

Petition for Disclosure of Evidence at 220. “A trial court does not abuse its discretion by

finding no particularized need when a defendant speculates that grand jury testimony

might have revealed contradictions.” (Citation omitted.) State v. Carr, 2d Dist.

Montgomery No. 22603, 2009-Ohio-1942, ¶ 41. Accord State v. Heisey, 2015-Ohio-4610,

48 N.E.3d 157, ¶ 35 (2d Dist.) (assertions that the grand-jury testimony might reveal

contradictions in witness testimony “do not establish the requisite need”); State v. Mack,

73 Ohio St.3d 502, 508, 653 N.E.2d 329 (1995), quoting State v. Webb, 70 Ohio St.3d

325, 337, 638 N.E.2d 1023 (1994) (trial court does not abuse discretion by finding

defendant has not shown particularized need when defendant “ ‘speculates that the grand

jury testimony might have contained material evidence or might have aided his cross-

examination * * * by revealing contradictions’ ”). “A general assertion for the purpose of

exploring ‘possible inconsistent statements by witnesses’ does not establish a

particularized need.” McGill, 2d Dist. Greene No. 99CA25, 2000 WL 1803650 at *18,

citing State v. Richey, 64 Ohio St.3d 353, 366, 595 N.E.2d 915 (1992).

       {¶ 31} “The same ‘particularized need’ analysis is applied to both trial and post-

conviction proceedings, and a defendant’s claim of need does not automatically entitle

him to the records. Instead, the defendant ‘must first make a colorable claim for post-

conviction relief and then seek the transcripts.’ ” State v. Buelow, 2d Dist. Clark No. 06-
                                                                                          -14-

CA-29, 2007-Ohio-131, ¶ 45, quoting State v. Walker, 4th Dist. Lawrence No. 04CA16,

2005-Ohio-1584, ¶ 7.

       {¶ 32} In this case, the trial court did not err by denying Carr’s request for

transcripts of all testimony presented to the grand jury that indicted him. The trial court

first noted that Carr had no pending petition for postconviction relief. We have recognized,

and other Ohio appellate courts agree, that a trial court lacks authority to grant a motion

for production of grand jury testimony where no postconviction petition or other matter

requiring discovery in the movant’s criminal case is pending before that court. See id. at

¶ 45; see also State v. Harper, 5th Dist. Guernsey No. 13 CA 15, 2013-Ohio-3897, ¶ 19,

citing State v. Russell, 10th Dist. Franklin No. 05AP-1325, 2006-Ohio-5945, ¶ 10; State

v. Short, 8th Dist. Cuyahoga No. 38492, 2004-Ohio-3695, ¶ 7; State v. Herring, 5th Dist.

Stark No. 1996 CA 00385, 1997 WL 219249 (March 17, 1997). The trial court did not

abuse its discretion by concluding that it lacked authority to provide the relief Carr sought.

       {¶ 33} Neither did the trial court abuse its discretion by determining that Carr had

failed to demonstrate a particularized need for the grand jury testimony. “The claim that

a witness’s grand jury testimony may differ from trial testimony is insufficient to show a

particularized need.” Harper at ¶ 22, citing State v. Henness, 79 Ohio St.3d 53, 62, 679

N.E.2d 686 (1997); see also Carr, 2d Dist. Montgomery No. 22603, 2009-Ohio-1942, at

¶ 41; Heisey, 2015-Ohio-4610, 48 N.E.3d 157, at ¶ 35. Carr has presented nothing to

substantiate his suggestion that witnesses may have testified inconsistently, even

declining to name the “unidentified witnesses” whose testimony he deems suspect.

Further, contrary to Carr’s premise, inconsistencies between a witness’s grand jury and

trial testimony would not prove that the witness’s later testimony was “coached.”
                                                                                         -15-


      {¶ 34} Finally, Carr does not advance a credible argument that the grand jury

transcripts would reveal prosecutorial misconduct infecting his second indictment for

heroin possession. We have recognized that a motion for the disclosure of grand jury

testimony may not be used to conduct a “fishing expedition” into speculative bases for

relief. See State v. Boehm, 2d Dist. Montgomery No. 16335, 1997 WL 856285, *2 (Dec.

31, 1997). Many other courts agree. See, e.g., State v. Burroughs, 165 Ohio App.3d 172,

2005-Ohio-6411, 845 N.E.2d 540, ¶ 14 (3d Dist.); State v. Davis, 1st Dist. Hamilton No.

C-940026, 1994 WL 466496, *1 (Aug. 31, 1994); State v. Pierce, 4th Dist. Vinton No. 474,

1992 WL 276556, *3 (Oct. 6, 1992).

      {¶ 35} Having failed to establish the threshold requirement of a particularized

need, Carr was not entitled to disclosure of the grand jury testimony. His fourth

assignment of error is overruled.

       Assignment of Error #1 – Motion to Reconsider Nunc Pro Tunc Order

      {¶ 36} Carr’s remaining assignment of error challenges the trial court’s denial of

his motion for reconsideration of the nunc pro tunc order that denied his motion for

reconsideration of the denial of his motion to dismiss. That assignment is not well taken,

for multiple reasons.

      {¶ 37} The Ohio Constitution limits an appellate court’s jurisdiction to the review of

final judgments or orders of lower courts. State v. Pennington, 187 Ohio App.3d 526,

2010-Ohio-2139, 932 N.E.2d 941, ¶ 15 (2d Dist.), citing Section 3(B)(2), Article IV, Ohio

Constitution; State v. Lewis, 9th Dist. Lorain No. 08 CA 9379, 2009-Ohio-3322, ¶ 4. “We

have no jurisdiction to review an order or judgment that is not final, and an appeal

therefrom must be dismissed.” Barrow v. The Living Word-Dayton, 2d Dist. Montgomery
                                                                                              -16-

No. 27935, 2018-Ohio-4641, ¶ 13, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio

St.3d 17, 20, 540 N.E.2d 266 (1989).

       {¶ 38} Under R.C. 2505.02(B), “[a]n order is a final order that may be reviewed,

affirmed, modified, or reversed, with or without retrial, when it is one of the following”:

       (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

       (2) An order that affects a substantial right made in a special proceeding or

       upon a summary application in an action after judgment;

       (3) An order that vacates or sets aside a judgment or grants a new trial;

       (4) An order that grants or denies a provisional remedy and to which both

       of the following apply:

           (a) The order in effect determines the action with respect to the

           provisional remedy and prevents a judgment in the action in favor

           of the appealing party with respect to the provisional remedy.

           (b) The appealing party would not be afforded a meaningful or

           effective remedy by an appeal following final judgment as to all

           proceedings, issues, claims, and parties in the action.

       {¶ 39} As a general rule, a trial court is divested of jurisdiction once an appeal is

taken, except to take action in aid of the appeal. State ex rel. Special Prosecutors v.

Judges, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). The trial court does retain

jurisdiction over issues not inconsistent with the power and jurisdiction of the appellate

court to review, affirm, modify, or reverse the appealed judgment. Id.; citing In re

Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657 (1942). However, if the decision that is the
                                                                                         -17-


subject of an appeal was an appealable order, then any subsequent trial court ruling on

a motion for reconsideration of that appealable order would be a nullity. See State v.

Morgan, 2d Dist. Clark No. 2012-CA-06, 2012-Ohio-4750, ¶ 10.

       {¶ 40} Already pending before us is Case No. 28080, Carr’s appeal from the trial

court’s July 12, 2018 nunc pro tunc entry. Assuming that the July 12, 2018 entry was a

final appealable order (an issue we reserve for determination in Case No. 28080), Carr’s

appeal from that order divested the trial court of jurisdiction to rule on his motion for

reconsideration of the same order. Alternatively, if the July 12, 2018 entry was not a final

appealable order, the trial court’s decision on Carr’s motion for reconsideration of that

order likewise was not a final appealable order, and we lack jurisdiction to consider Carr’s

appeal from the second motion to reconsider. In either case, Carr’s challenge to the trial

court’s denial of his second motion to reconsider cannot be sustained.

       {¶ 41} Carr’s first assignment of error is overruled.

                                       Conclusion

       {¶ 42} The judgment of the trial court will be affirmed.

                                      .............



DONOVAN, J. and HALL, J., concur.


Copies sent to:

Mathias H. Heck
Michael P. Allen
Brandon Charles Carr
Hon. Steven K. Dankof
