State v. Elam

2004 Ohio 7328, 821 N.E.2d 622, 129 Ohio Misc. 2d 26
CourtClermont County Court of Common Pleas
DecidedSeptember 8, 2004
DocketNo. 2003-CR-515
StatusPublished
Cited by1 cases

This text of 2004 Ohio 7328 (State v. Elam) is published on Counsel Stack Legal Research, covering Clermont County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Elam, 2004 Ohio 7328, 821 N.E.2d 622, 129 Ohio Misc. 2d 26 (Ohio Super. Ct. 2004).

Opinion

ROBERT P. RinglaND, Judge.

{¶ 1} This matter came before the court pursuant to two related motions filed by defendant Tony Lee Elam on August 24, 2004. In the first motion Elam asks that Count Three, involuntary manslaughter, of his three-count indictment be dismissed. The other motion seeks disclosure of the grand jury testimony that led to his indictment. Oral argument for both motions was heard on August 31, 2004. The court has taken the matter under advisement and now renders the following decision.

{¶ 2} This case stems from an incident occurring in the early morning hours of June 20, 2003. The defendant is alleged to have stolen tools from the van of Russell Ruehlman. The state further alleges that Elam, while fleeing from the scene in his van, ran a red light and collided with a truck proceeding through the green light. The driver of the truck was killed in the collision.

{¶ 3} Defendant was indicted for grand theft, breaking and entering, and involuntary manslaughter on July 16, 2003. As to Count Three, the indictment charges that defendant “caused the death of another * * * as a proximate result [29]*29of [his] committing or attempting to commit a felony” in violation of R.C. 2903.04(A). In the bill of particulars filed on August 7, 2003, the assistant prosecutor stated that Elam, along with two others, removed tools valued in excess of $5,000 from the work van of Russell Ruehlman while trespassing on Ruehlman’s property. With regard to Count Three it states that the defendant caused the death of Brian Piatt “as a proximate result of his commission of the aforementioned theft offense.” Thus, at that time, the prosecution alleged that Elam’s commission of grand theft was the predicate offense on which the involuntary manslaughter charge was based.

{¶ 4} On June 23, 2004, the state filed an amended bill of particulars. In it the state alleged that the defendant caused the death of Piatt as a result of his commission of receiving stolen property in addition to the original charges of theft and breaking and entering. The amended bill of particulars thus alleges an alternative theory giving rise to criminal liability under R.C. 2903.04(A). Elam has not been indicted for receiving stolen property, and apparently the state has no intention of indicting him on that charge.

{¶ 5} The defendant’s first motion argues that allowing the state to proceed under the third count will violate his constitutional right to presentment or indictment by a grand jury under Section 10, Article 1 of the Ohio Constitution. He maintains that the grand jury likely was not presented with evidence of the defendant’s receiving stolen property, since that allegation was not made until the amended bill of particulars was filed some 11 months after the indictment was returned. The defendant’s second motion requests that the grand jury testimony be unsealed so that the defendant can review the testimony in order to determine whether the grand jury was presented with evidence supporting the charge of receiving stolen property. Elam thus depends on the court granting his motion for disclosure in order to support his motion for dismissal. The court will address the defendant’s related motions together.

{¶ 6} Before a judge may permit an accused to examine and inspect grand jury transcripts, he or she must weigh competing interests. A defendant has to demonstrate that a particularized need for disclosure exists that outweighs the need for secrecy. State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, at paragraph two of the syllabus. 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 that outweighs the need for secrecy. See id. at 148, 20 O.O.3d 157, 420 N.E.2d 982, citing State v. Laskey (1970), 21 Ohio St.2d 187, 191, 50 O.O.2d 432, 257 N.E.2d 65. The existence of particularized need is a fact question to be determined by the trial [30]*30judge, and the ultimate decision rests within the sound discretion of the court. State v. Tenbrook (1987), 34 Ohio Misc.2d 14, 517 N.E.2d 1046.

{¶ 7} Here, the defendant contends that there exists the danger that the grand jury did not consider whether the defendant received stolen property because that allegation did not appear in the indictment or the original bill of particulars. Thus, the threshold issue is whether this danger constitutes a particularized need warranting disclosure of the grand jury transcript.

{¶ 8} R.C. 2941.14(A) states, “In an indictment for aggravated murder, murder, or voluntary or involuntary manslaughter, the manner in which, or the means by which the death was caused need not be set forth.” Under this provision, an indictment for involuntary manslaughter need not set forth the underlying felony on which the charge is based. See State v. Jones, Cuyahoga App. No. 80737, 2002-Ohio-6045, 2002 WL 31478933. In fact, an indictment “ ‘may be in the words of the applicable section of the statute so long as the words of that statute charge an offense.’ ” State v. O’Brien (1987), 30 Ohio St.3d 122, 124, 30 OBR 436, 508 N.E.2d 144, quoting Crim.R. 7(B). Consequently, the indictment in this case is facially valid and raises no suspicion that the grand jury did not find probable cause to believe that the defendant “cause[d] the death of another * * * as a proximate result of the offender’s committing or attempting to commit a felony.” R.C. 2903.04(A).

{¶ 9} In contrast, a bill of particulars “is designed to provide the accused, upon proper demand, with greater detail concerning the nature of the offense charged and of the criminal conduct alleged to constitute the offense, and is appropriately supplied where the indictment, although legally sufficient in describing the elements of the charged offense, is so general in nature that the accused is not given a fair and reasonable opportunity to prepare his defense.” State v. Gingell (1982), 7 Ohio App.3d at 367, 7 OBR 464, 455 N.E.2d 1066.

{¶ 10} Thus it is the bill of particulars, and not the indictment, on which a criminal defendant should rely in preparing his defense. This is especially true in prosecutions under R.C. 2941.14, in which the underlying felony need not be pled. The court concludes that the state has used the bill of particulars as it is envisioned by the Rules of Criminal Procedure, to more fully apprise the defendant of the state’s theory of criminal liability. Elam does not claim that the state’s amendment has prejudiced his defense or that it was filed in violation of the Rules of Criminal Procedure.1

[31]*31{¶ 11} Elam contends that by allowing the state to change the underlying felony, the “name or identity of the crime” he is charged with has been changed. He cites State v. Vitale (1994), 96 Ohio App.3d 695, 645 N.E.2d 1277

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Bluebook (online)
2004 Ohio 7328, 821 N.E.2d 622, 129 Ohio Misc. 2d 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elam-ohctcomplclermo-2004.