[Cite as State v. Barton, 2024-Ohio-1417.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
STATE OF OHIO, CASE NO. 13-23-22 PLAINTIFF-APPELLEE,
v.
SAMANTHA R. BARTON, OPINION
PLAINTIFF-APPELLANT.
Appeal from Seneca County Common Pleas Court Trial Court No. 22 CR 0185
Judgment Affirmed
Date of Decision: April 15, 2024
APPEARANCES:
Brian A. Smith for Appellant
Stephanie J. Kiser for Appellee Case No. 13-23-22
WALDICK, J.
{¶1} Defendant-appellant, Samantha R. Barton (“Barton”), brings this
appeal from the August 16, 2023, judgment of the Seneca County Common Pleas
Court convicting her of Endangering Children. On appeal, Barton argues that there
was insufficient evidence presented to convict her, that her conviction was against
the manifest weight of the evidence, that the State failed to provide an adequate bill
of particulars, that the trial court abused its discretion by denying Barton’s motion
for a mistrial, and that the trial court abused its discretion by denying Barton’s
motion for a transcript of grand jury testimony. For the reasons that follow, we
affirm the judgment of the trial court.
Background
{¶2} On September 28, 2022, Barton was indicted for Endangering Children
in violation of R.C. 2919.22(A)/(E)(2)(c), a felony of the third degree. The charge
stemmed from a severe sexual assault injury to Barton’s 9-week-old child while the
child was in the care of Barton and the child’s father, Mason Dietrich (“Mason”).
Barton pled not guilty to the charge and proceeded to a jury trial, wherein she was
convicted of the charge as indicted.
{¶3} On August 16, 2023, Barton was sentenced to serve 30 months in
prison. A judgment entry memorializing her conviction and sentence was filed that
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same day. It is from this judgment that Barton appeals, asserting the following
assignments of error for our review.
First Assignment of Error
Because the evidence presented would not allow any rational trier of fact to find the essential elements of the offenses proven beyond a reasonable doubt, Appellant’s conviction for Endangering Children was not supported by sufficient evidence.
Second Assignment of Error
Because the jury lost its way and created a manifest miscarriage of justice in convicting Appellant, Appellant’s conviction for Endangering Children was against the manifest weight of the evidence.
Third Assignment of Error
Because the State failed to provide an adequate Bill of Particulars pursuant to Crim.R. 7(E) and R.C. 2941.07, the trial court abused its discretion in denying Appellant’s Motion to Compel Bill of Particulars, in violation of Appellant’s right to Due Process and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
Fourth Assignment of Error
Because the trial court committed error prejudicial to Appellant in allowing Mason Deitrich to testify while selectively invoking his Fifth Amendment privilege against self-incrimination, the trial court abused its discretion in denying Appellant’s motion for a mistrial, in violation of Appellant’s right to confrontation of witnesses under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
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Fifth Assignment of Error
Because the trial court acted in an unconscionable, arbitrary, and unreasonable manner in denying Appellant’s motion requesting a transcript of the grand jury testimony, the trial court abused its discretion in denying Appellant’s Motion for Grand Jury Testimony, in violation of Appellant’s right to confrontation of witnesses under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
{¶4} In her first assignment of error, Barton argues that there was insufficient
evidence to convict her of endangering children.
Standard of Review
{¶5} “Whether the evidence is legally sufficient to sustain a verdict is a
question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Groce,
163 Ohio St.3d 387, 2020-Ohio-6671, ¶ 6. Therefore, our review is de novo. In re
J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 3. In a sufficiency-of-the-evidence
inquiry, the question is whether the evidence presented, when viewed in a light most
favorable to the prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus (superseded by constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102,
(1997), fn. 4) following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
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Controlling Statute
{¶6} Barton was convicted of Endangering Children in violation of R.C.
2919.22(A)/(E)(2)(c), which reads:
(A) No person, who is the parent * * * of a child under eighteen years of age * * * shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. * * *
***
(c) If the violation is a violation of division (A) of this section and results in serious physical harm to the child involved, [it is] a felony of the third degree[.]
Evidence Presented by the State
{¶7} A.D. was born 11 weeks premature in December of 2021. She spent 34
days in the NICU, then went home with her mother, Barton, and her father, Mason,
to a residence in Seneca County.
{¶8} In the early morning hours of March 3, 2022, A.D. was taken to Tiffin
Mercy Hospital by Barton and Mason due to injuries to A.D.’s rectum. A.D.’s
parents claimed that they discovered the injuries during an 11:30 p.m. diaper change
on March 2, 2022. They claimed that they had no idea how the injury occurred, but
that they were the only people alone with A.D. that day. Barton speculated that the
injuries were from trouble that A.D. had been having with straining during bowel
movements. Due to the severity of A.D.’s injuries, A.D. was promptly transported
by ambulance to ProMedica Toledo Hospital.
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{¶9} Numerous medical professionals testified at trial regarding A.D.’s
injuries. One doctor described A.D.’s injuries as follows:
Well, there was a huge tear from the anal opening extending towards the vagina and posterior directly away from the vagina that is not explained by anything other than something being shoved in that area.
(Tr. at 155). The same doctor testified that it was the “most severe anal rectal trauma
I’ve taken care of.” (Id. at 156).
{¶10} A separate pediatrician reviewed the injuries to A.D. and explained
that constipation or straining would not cause the injuries; rather, the injury had to
“be some foreign object forcefully inserted into her rectum.” (Tr. at 170). The
pediatrician testified to a reasonable degree of medical certainty that A.D. “had at
least two severe perianal lacerations and that was due to forceable [sic] trauma,
penetration and sexual abuse.” (Id. at 171). The pediatric nurse practitioner who
evaluated A.D. indicated that the injury was consistent with sexual assault,
specifically an insertion injury from something larger than a finger. (Tr. at 144).
Medical professionals were consistent in testifying that the injury was caused from
something being inserted into A.D. causing injuries that required surgery.
{¶11} Law enforcement officers spoke with Barton and Mason, getting the
details of everything that had occurred in the day prior to A.D. coming to the
hospital. The time when the injuries occurred could be narrowed slightly because at
approximately 1 p.m. on March 2, 2022, A.D. had her two-month “well care child
exam.” A.D. was evaluated by a pediatrician and the pediatrician had no concerns
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for A.D.’s health or well-being at that time. During the exam, A.D. weighed 6
pounds and 13 and ½ ounces.
{¶12} According to Barton, after the exam, Barton and Mason returned home
with A.D. At approximately 7:30 p.m., A.D.’s diaper was changed with no issues.
Two friends of Barton, Emily and Abby, stopped by the residence from
approximately 9 p.m. until 10:15 p.m. Emily and Abby needed someone to foster
their dog and Barton indicated she was willing. Although both Emily and Abby held
A.D., neither woman was alone with A.D.
{¶13} At 11:30 p.m., Barton and Mason went to change A.D.’s diaper. At
that time, they claimed they first noticed that A.D.’s rectum was “gashed.” Because
of the blood and seeming severity of the injury, Barton and Mason immediately
drove A.D. to Tiffin Mercy Hospital.
{¶14} Barton told police that she did not cause A.D.’s injuries and she did
not believe Mason caused A.D.’s injuries. Barton was adamant that she did not hurt
A.D. She stated there was “no chance” anything happened at the house on March
2nd.
{¶15} The officer interviewing Barton testified that Barton was defensive of
causing A.D.’s injuries and Barton seemed to distance herself from A.D. by not
referring to her by name. During the interview, Barton also vouched for Mason “100
percent,” claiming that he would not hurt “that little one.”
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{¶16} Barton told one officer that A.D. was never out of her sight during the
afternoon/evening prior to the injuries, including when Barton went to the bathroom.
Barton also stated that while she was preparing things in the kitchen at night, Mason
walked “loops” around the residence while carrying A.D. to stop her from fussing.
{¶17} Barton agreed to take a stipulated polygraph examination, which was
conducted on April 18, 2023, by an expert in polygraph examination. During the
examination, Barton denied physically injuring A.D., and she denied seeing anyone
injuring A.D. The polygraph examiner explained scoring of the examination,
indicating that a “score” of “minus four or larger is deceptive.” (Tr. at 234). Barton
scored at a “minus 14.” According to the polygraph examiner, Barton’s “specific
reactions [were] indicative of deception, and they appeared on the subject charges
and relevant questions[.] * * * [I]t is to be considered therefore that the person did
not tell the truth during the test.” (Id. at 233).
{¶18} The polygraph examiner’s results were independently evaluated by
another polygraphist with BCI. The reviewer scored Barton’s examination as “a
negative 20.” (Tr. at 246). The reviewer indicated that in his opinion the charts were
indicative of deception.
{¶19} A search warrant was executed on Barton and Mason’s residence.
During the search, officers located “[a] blanket that appears to have some kind of
blood on it.” (Tr. at 257). In addition, there was “a bottle of lubricant on the
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nightstand of what appeared to be the child’s room.”1 (Id.) The lubricant was called
“Booty Eaze.” (Id. at 258).
Analysis
{¶20} Barton argues the State failed to prove either that Barton created a
substantial risk to the health or safety of A.D. or that Barton violated a duty of care,
protection or support. In addition, Barton contends there was no evidence that she
acted recklessly, which is the mental culpability element required for a conviction
of Endangering Children under R.C. 2919.22(A). State v. McGee, 79 Ohio St.3d
193 (1997), at syllabus.
{¶21} Recklessly is defined in R.C. 2901.22(C) as follows:
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
{¶22} Here, Barton claimed that she was with A.D. the entire day following
the appointment with A.D.’s pediatrician. At some point between roughly 1 p.m.
March 2, 2022, and approximately 11:30 p.m. 2022, A.D. suffered a “severe” anal
injury due to being sexually assaulted by something “larger than a finger.”
1 We note that the photographs show that A.D.’s bed was in the same bedroom as Barton and Mason’s bed. However, in the room described by the officer as “the child’s room” there was a rocking chair, and some children’s toys and a swing.
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{¶23} We find that the duty of care, protection, and support required of a
parent is a dynamic duty based in significant part on the age of the child. At the
time, A.D. was two months old, less than seven pounds and had been out of the
hospital for less than two weeks. Accordingly, the level of the duty of care,
protection, and support required was at its highest point. A.D. was entirely helpless
and completely dependent upon her parents for everything and, therefore, a
reasonable factfinder could conclude, based on the evidence presented, that Barton
violated her duty of care, protection, and support by either causing the injury to A.D.
or failing to intervene to stop the injury given that Barton claimed she was with A.D.
the entire day.
{¶24} Moreover, the polygraph examination produced by the State indicated
that Barton was being deceptive on the relevant questions. Thus when Barton denied
causing the injuries or knowing who caused the injuries to A.D., a reasonable
factfinder could determine she was lying.
{¶25} Importantly, in a sufficiency of the evidence inquiry, we are required
to look at the evidence in a light most favorable to the State. When conducting such
an analysis, we find that a reasonable factfinder could determine beyond a
reasonable doubt that Barton recklessly created a substantial risk to the health and
safety to A.D. by violating a duty of care, protection or support. Therefore, Barton’s
first assignment of error is overruled.
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{¶26} In her second assignment of error, Barton argues that even if there was
sufficient evidence presented to convict her, her conviction was against the manifest
weight of the evidence.
{¶27} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing so,
this court must review the entire record, weigh the evidence and all of the reasonable
inferences, consider the credibility of witnesses and determine whether in resolving
conflicts in the evidence, the factfinder “clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Id.
{¶28} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State v.
DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
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Evidence Presented by the Defense
{¶29} Barton presented the testimony of an expert in polygraph examination
who separately conducted an examination of Barton. The examiner testified that in
his review, he found Barton to be truthful when she denied injuring A.D. and denied
knowing how A.D. was injured. However, the expert testified that due to a computer
crash, he lost his polygraph charts and thus the examination could not be reviewed
by anyone.
{¶30} Barton also testified at trial. She claimed that Mason’s testimony was
“awful” and that she had previously believed him when he said he did not hurt A.D.
She testified at trial that Mason must have caused the injury. Further, Barton
testified that at the time of the injury, she felt indebted to Mason because they lived
in a home owned by Mason’s parents and she could not afford to live on her own.
Barton also testified that she had another child with Mason after the injuries to A.D.
{¶31} Barton testified that on the evening in question Mason walked A.D.
around the house for 15-20 minutes out of her eyesight. Barton claimed that when
she told an officer that A.D. was never alone on the night in question, she meant
that there was always someone at home with her. Barton testified that because A.D.
had been dealing with constipation issues, she “didn’t even consider the possibility
of something having happened to [A.D.],” notwithstanding the medical reports. (Tr.
at 336).
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{¶32} While Barton contends that the jury clearly lost its way by convicting
her of endangering children, the jury was able to see and hear the testimony of the
polygraph examiners and the jury was able to evaluate Barton’s denials directly.
The jury was thus able to observe the demeanor of both Barton and Mason and
determine whether they were being truthful, regardless of whether the jury factored
in the information received from the “conflicting” polygraph examinations.
{¶33} Simply put, there was a “severe” sexual assault that was perpetrated
on A.D. while A.D. was in the care of Barton and Mason. Despite the injury being
an “insertion” injury, Barton initially claimed that she had no idea how the injury
occurred and that she believed 100 percent that Mason did not cause the injury. She
changed her story at trial, accusing Mason for the first time.
{¶34} Ultimately, the jury did not believe Barton’s attempts to minimize her
conduct, and the jury’s determination is supported by the State’s peer-reviewed
polygraph examiner, and the testimony of Barton’s own mother, who opined that
Barton was capable of causing A.D.’s injuries.
{¶35} In sum, this is not the exceptional case where the jury clearly lost its
way or created a manifest miscarriage of justice. Therefore, Barton’s second
assignment of error is overruled.
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{¶36} In her third assignment of error, Barton argues that the State failed to
provide an “adequate” bill of particulars.
Relevant Authority
{¶37} “The Ohio Constitution explicitly provides that a defendant has the
right to know the nature of the accusation being made by the state: ‘In any trial, in
any court, the party accused shall be allowed to appear and defend in person and
with counsel; to demand the nature and cause of the accusation against him, and to
have a copy thereof * * *.’” State v. Haynes, 171 Ohio St.3d 508, 2022-Ohio-4473,
218 N.E.3d 878, ¶ 18, quoting Ohio Constitution, Article I, Section 10.
“Historically, this right was satisfied by detailed indictments. But with the advent
of short-form indictments, bills of particulars became necessary in some cases to
give the accused specifics as to what conduct the state was alleging constituted the
offense, so that the accused could mount a defense.” Id. “[T]he exact contours of
that right are procedurally specified by Crim.R. 7(E),” id. at ¶ 19, which states:
When the defendant makes a written request within twenty-one days after arraignment but not later than seven days before trial, or upon court order, the prosecuting attorney shall furnish the defendant with a bill of particulars setting up specifically the nature of the offense charge[d] and of the conduct of the defendant alleged to constitute the offense.
{¶38} “There are no exceptions to the requirement; the state must provide a
bill of particulars on a defendant’s request, even when the prosecutor believes that
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the defendant is able to glean the nature and cause of the accusation against him
from the discovery the state provided or from some other source.”
Haynes at ¶ 26. “The defendant, after all—not the prosecutor—is best situated to
know whether or not he understands the accusation against him.” Id.
{¶39} In this case, Barton filed multiple requests for a bill of particulars. The
State provided a bill of particulars, then provided a second bill of particulars. Several
months later, Barton filed a motion to compel a more specific bill of particulars,
arguing that the bill of particulars provided simply restated the indictment. Barton
argued that it was not clear whether it was being alleged that Barton harmed A.D.
herself or recklessly endangered A.D. by leaving her in Mason’s care.
{¶40} The trial court filed an entry denying Barton’s motion to compel,
indicating that the bill of particulars that had been provided was in compliance with
the Criminal Rules. Barton claims that the trial court erred, and that the bill of
particulars was not compliant with the Criminal Rules.
{¶41} Here, the bill of particulars stated, in pertinent part, as follows:
The conduct of the Defendant which is alleged to constitute the offense charged in the indictment is as follows: on or about the 2nd day of March, 2022 at 10725 W TR 41 in the Township of Jackson, Seneca County, Ohio, the Defendant, Samantha R. Barton did being a parent, guardian, custodian or person having custody or control or person in loco parentis of a child under eighteen years of age, to wit: Jane Doe being less than one year old, did recklessly create a substantial risk to the health or safety of the said Jane Doe by violating a duty of care, protection or support; namely, the said Defendant failed
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to protect her child, Jane Doe, from physical and/or sexual abuse that resulted in serious physical harm to the said Jane Doe.
(Doc. No. 27).
{¶42} Barton argues that the bill of particulars was deficient because it did
not specifically describe how she recklessly created a substantial risk to the health
and safety of the child. She seemed to be requesting a definition of what acts
specifically constituted her recklessness. However, we emphasize that the purpose
of a bill of particulars is not to provide the accused with specifications of evidence
or to serve as a substitute for discovery. State v. Avery, 126 Ohio App.3d 36, 709
N.E.2d 875 (3d Dist.1998). Here, the bill of particulars identified the perpetrator,
the victim, the date, and the elements of the offense. We find no error with the trial
court’s determination that the bill of particulars was adequate.
{¶43} Moreover, even if we did agree that the bill of particulars was not
detailed as it could have been, Barton does not demonstrate any prejudice that would
warrant reversal. The prosecutor in her opening statement reiterated the State’s
theory of the case when she indicated: “While we cannot prove that [Barton] caused
the injury to [A.D.], she either caused it or she saw it happen and failed to protect
[A.D.].” (July 5, 2023 Tr. at 108) In response, Barton argued at every opportunity
that the State’s inability to prove one act or the other should lead the jury to find
that the State failed to prove the offense beyond a reasonable doubt and that Mason
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was the one who actually harmed A.D., thus absolving her of any criminal
responsibility.
{¶44} In sum, we do not find that the bill of particulars provided was
deficient, but even if it was, Barton has not demonstrated any prejudice. Therefore,
her third assignment of error is overruled.
{¶45} In her fourth assignment of error, Barton argues that the trial court
abused its discretion by denying her motion for a mistrial. More specifically, Barton
argues that the trial court erred by permitting Mason to selectively invoke his fifth-
amendment privilege against self-incrimination, and that the trial court should have
granted a mistrial on this basis.
{¶46} We review the denial of a motion for a mistrial under an abuse of
discretion standard. State v. Shoaf, 3d Dist. Hancock Nos. 5-21-21, 5-21-22, 2022-
Ohio-3605, 199 N.E.3d 43, ¶ 46. Mistrials should only be granted in situations
where a fair trial becomes impossible. Id.
{¶47} “The Ohio Supreme Court has held that when a witness asserts a
privilege against self-incrimination, a court may not rely upon the witness’s claim
alone, but has a duty to determine whether the witness’s refusal to answer is
justified.” State v. Spangler, 5th Dist. Fairfield No. 16–CA–12, 2017–Ohio–268, ¶
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30, citing State v. Arnold, 147 Ohio St.3d 138, 2016–Ohio–1595 at ¶ 45, citing
Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814 (1951). A valid assertion
exists where a witness has “reasonable cause” to apprehend a real danger of
incrimination. United States v. Apfelbaum, 445 U.S. 115, 127, 100 S.Ct. 948 (1980).
Therefore, to sustain the privilege, it need only be evident from the implications of
the question, in the setting in which it is asked, that a responsive answer “might be
dangerous because injurious disclosure could result.” Hoffman, 341 U.S. at 486–
487. The privilege extends to answers which would furnish a link in the chain of
evidence, exposing the witness to criminal liability. Id. at 486.
{¶48} “In general, a witness may not make a blanket assertion of his or her
Fifth Amendment privilege, and may not invoke the Fifth Amendment prior to
questioning.” Sojic v. Karp, 2d Dist. Montgomery No. 26664, 2015–Ohio–3692, ¶
31. In other words, “a blanket assertion of the Fifth Amendment privilege by a
witness is not sufficient as the privilege must be asserted by a witness with respect
to a particular question, and, in each instance, the court must determine the propriety
of the refusal to testify.” Vega v. Tivurcio, 10th Dist. Franklin No. 14AP–327, 2014–
Ohio–4588, ¶ 12; State v. Stafford, 12th Dist. Butler No. CA2016-11-219, 2017-
Ohio-7118, ¶ 21. “This presumption against blanket assertions of Fifth Amendment
privilege is premised on the common sense notion that a judge must know what the
witness believes is incriminating in order to evaluate whether the witness invokes
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the privilege with ‘reasonable cause.’” United States v. Bates, 552 F.3d 472, 475–
76 (6th Cir. 2009).
{¶49} Barton argues that the trial court erred by permitting Mason to “pick
and choose” which questions he wished to answer when he testified at trial. (Appt.’s
Br. at 21). For context, Mason provided preliminary testimony then invoked his
privilege against self-incrimination when asked certain questions about harming
A.D. Barton contends that this selective application of the Fifth Amendment
Privilege was inappropriate and prejudiced her.
{¶50} First, the “selective application” of the Fifth Amendment Privilege is
not inappropriate. As stated previously, “a blanket assertion of the Fifth Amendment
privilege by a witness is not sufficient as the privilege must be asserted by a witness
with respect to a particular question, and, in each instance, the court must determine
the propriety of the refusal to testify.” Vega v. Tivurcio, 10th Dist. Franklin No.
14AP–327, 2014–Ohio–4588, ¶ 12. Thus, we reject Barton’s assertion that there
was some issue with Mason answering some questions and invoking his Fifth
Amendment Privilege to others, because that is precisely how the privilege is
supposed to work.
{¶51} Second, Barton is unable to establish any prejudice here as Mason
ultimately testified that he had A.D. alone sometimes, that he and Barton
“discovered” the injury at the same time, and that he did not believe Barton created
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a substantial risk to the health and safety of A.D. Thus in some ways, Mason’s
testimony could have aided Barton’s defense if the jury believed Mason and Barton.
{¶52} Given that there was no error here and no prejudice, we find that the
trial court did not abuse its discretion by denying Barton’s motion for a mistrial.
Therefore, Barton’s fourth assignment of error is overruled.
{¶53} In her fifth assignment of error, Barton argues that the trial court
abused its discretion by denying her request for a transcript of grand jury testimony.
{¶54} We review a trial court’s decision on whether to release a transcript of
grand jury testimony under an abuse of discretion standard. State v. Hinkle, 3d Dist.
Hardin No. 2020-Ohio-5571, ¶ 51.
{¶55} The Supreme Court of Ohio addressed the potential disclosure of
grand jury testimony in State v. Greer, 66 Ohio St.2d 139 (1981), holding, “Grand
jury proceedings are secret, and an accused is not entitled to inspect grand jury
transcripts either before or during trial unless the ends of justice require it and there
is a showing by the defense that a particularized need for disclosure exists which
outweighs the need for secrecy.” Greer at paragraph two of the syllabus. A
particularized need is established “when the circumstances reveal a probability that
the failure to provide the grand jury testimony will deny the defendant a fair
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trial.” State v. Sellards, 17 Ohio St.3d 169, 173 (1985). Determining whether a
particularized need exists is a matter within the trial court's discretion. State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 141.
{¶56} In this case, Barton argues that she needed the grand jury testimony in
order to determine the conduct she was alleged to have committed that constituted
the offense. Similar to her argument regarding her request for a more specific bill
of particulars, Barton contends that she was not aware of the exact nature of the
charge against her.
{¶57} In reviewing her arguments, we have already determined that the bill
of particulars in this case was sufficient, thus Barton had proper notice of the charge.
As the grand jury proceedings are secret, Barton had to show a particularized need
for the testimony, and she has not done so. In fact, she has not established any need
whatsoever. Therefore, her fifth assignment of error is overruled.
Conclusion
{¶58} Having found no error prejudicial to Barton in the particulars assigned
and argued, her assignments of error are overruled and the judgment of the Seneca
County Common Pleas Court is affirmed.
WILLAMOWSKI, P.J. and MILLER, J., concur.
/hls
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