State v. Flannery

2026 Ohio 1076

• Court: Ohio Court of Appeals
• Decided: March 27, 2026
• Docket: C-250230
• Status: Published

Opinion

[Cite as State v. Flannery, 2026-Ohio-1076.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250230 TRIAL NO. B-2305420 Plaintiff-Appellant, :

vs. : JUDGMENT ENTRY NICHOLAS FLANNERY, :

Defendant-Appellee. :

This cause was heard upon the appeal, the record, the briefs, and arguments. For the reasons set forth in the Opinion filed this date, the judgment of the trial court is reversed and the cause is remanded. Further, the court holds that there were reasonable grounds for this appeal, allows no penalty, and orders that costs be taxed under App.R. 24. The court further orders that (1) a copy of this Judgment with a copy of the Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial court for execution under App.R. 27.

To the clerk: Enter upon the journal of the court on 3/27/2026 per order of the court.

By:_______________________ Administrative Judge [Cite as State v. Flannery, 2026-Ohio-1076.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250230 TRIAL NO. B-2305420 Plaintiff-Appellant, :

vs. : OPINION NICHOLAS FLANNERY, :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: March 27, 2026

Connie Pillich, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Rittgers Rittgers & Nakajima and C. Stephen Kilburn, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} In this interlocutory appeal, plaintiff-appellant the State of Ohio

challenges the trial court’s order that it disclose an excerpt of grand jury testimony to

counsel for defendant-appellee Nicholas Flannery. This is the State’s second

interlocutory appeal from an order to disclose grand jury testimony in this case. See

State v. Flannery, 2025-Ohio-1074 (1st Dist.) (“Flannery I”).

{¶2} In contrast to Flannery I, in which the trial court ordered the State to

disclose the entire grand jury transcript, the trial court has now ordered the State to

disclose only a short excerpt of testimony from the transcript. Despite the court’s more

tailored order of disclosure, for the reasons set forth in this opinion we again hold that

the trial court abused its discretion in ordering the State to disclose the excerpt from

the transcript to defense counsel. We accordingly reverse the trial court’s judgment

and remand this cause for further proceedings.

I. Factual and Procedural History

{¶3} Flannery’s infant son, M.F., suffered a medical incident while in

Flannery’s care in September 2023. As a result of that incident, both a civil complaint

and criminal charges were filed against Flannery.

{¶4} A civil complaint was filed against Flannery in the Hamilton County

Juvenile Court on October 6, 2023, by the Hamilton County Department of Job and

Family Services (“HCJFS”) seeking temporary custody of M.F. and his older sibling

R.F. A hearing was held on October 10, 2023, on HCJFS’s motion for interim custody.

Flannery alleges that he presented a copious amount of exculpatory evidence at that

hearing. We summarized this evidence in Flannery I, stating,

That evidence, as described by Flannery, included medical records

indicating that M.F. was stuck in the birth canal for over 24 hours; that

3 OHIO FIRST DISTRICT COURT OF APPEALS

M.F.’s head was malformed and grew abnormally from birth; that M.F.

underwent surgery to remove excessive fluid buildup caused by his

traumatic birth, which ultimately caused him to experience a seizure;

that M.F. lacked physical injuries at the time of the September 7, 2023

medical incident; and that a defense medical expert, Dr. Scheller, found

that M.F.’s seizure was the product of a chronic medical condition rather

than child abuse. Flannery also suggests that the State’s expert in the

custody proceeding, Dr. Pham, lied on the witness stand regarding his

review of M.F.’s pediatric records.

Flannery I, 2025-Ohio-1074, at ¶ 5 (1st Dist.). Following the hearing, a juvenile court

magistrate determined that neither M.F. nor R.F. were at imminent risk and denied

the motion for interim custody. In November 2023, the Juvenile Court denied a

motion filed by HCJFS to set aside the magistrate’s decision.

{¶5} Then, on December 29, 2023, Flannery was indicted on charges of

felonious assault and endangering children, both second-degree felonies.

{¶6} On February 6, 2024, Flannery filed a motion for disclosure of grand

jury testimony. The motion argued that the State had been aware of the exculpatory

evidence presented in the juvenile court proceeding but had failed to introduce that

evidence to the grand jury in violation of Flannery’s due-process right to an informed

and unbiased grand jury. Flannery asked the trial court to either provide him with the

grand jury testimony or, in the alternative, to review the grand jury testimony and

determine whether the State violated his due-process rights. He suggested that the

trial court should dismiss the indictment if it found that his due-process rights had

been violated.

{¶7} Flannery subsequently filed a motion to dismiss the indictment, arguing

4 OHIO FIRST DISTRICT COURT OF APPEALS

that dismissal was warranted “based upon due process violations to a fair and

unbiased grand jury resulting from the state’s failure to introduce to the grand jury

substantial exculpatory evidence about which it had actual knowledge.”

{¶8} The trial court held a hearing on Flannery’s motion to disclose. It found

that Flannery had shown a particularized need for the court to review the grand jury

testimony in camera, and it ordered the State to provide the court with the grand jury

transcript. After reviewing the transcript, the trial court granted Flannery’s motion for

disclosure and ordered that the grand jury transcript be disclosed to defense counsel.

The trial court stated that the testimony presented to the grand jury “tends to support

Defendant’s argument to dismiss the case.” It held Flannery’s motion to dismiss in

abeyance. We granted the State’s motion for leave to appeal and stayed the trial court’s

disclosure order pending appeal.

{¶9} In Flannery I, we reversed the trial court’s disclosure order. Flannery I,

2025-Ohio-1074, at ¶ 2 and 31 (1st Dist.). We first explained that, by stating that the

grand jury transcript “tends to support Defendant’s argument to dismiss the case,” the

trial court had implied that the State had not presented the evidence that Flannery

alleged to be “substantial” and “exculpatory” to the grand jury. Id. at ¶ 17. We then

recognized that “[t]his finding was in effect all that Flannery had sought in his

disclosure motion: to establish the absence of the evidence from the grand jury

proceeding.” Id.

{¶10} We held that “[w]e agree with the trial court that Flannery established

an articulable need to access the grand jury proceedings to facilitate his due process

motion,” but that “the breadth of the trial court’s disclosure order constituted an abuse

of discretion, because full disclosure of the entire grand jury transcript was not

particularized to the limited need Flannery established.” Id. at ¶ 22 and 24. We further

5 OHIO FIRST DISTRICT COURT OF APPEALS

held that the trial court should have “balanc[ed] Flannery’s need to establish the

absence of evidence against the sacrosanct protection for grand jury secrecy.” Id. at

¶ 27. And we explained that the trial court could have balanced both parties’ needs

with a lesser remedy, including “a factual finding by the trial court that the evidence

was not presented to the grand jury or a stipulation by the State to that effect.” Id.

Holding that “[i]t was unreasonable for the trial court to order full disclosure of the

grand jury transcript when Flannery established only a limited need,” we reversed the

trial court’s order of disclosure and remanded for further proceedings. Id.

{¶11} On remand, in accordance with our suggestion in Flannery I, the State

stipulated that no exculpatory evidence was presented to the grand jury. In response,

defense counsel requested that the trial court disclose “the portions of the Grand Jury

transcript regarding what was presented, specifically with respect to the reasons this

child was hospitalized.” The trial court informed the parties that it would review the

grand jury transcript to see if there was any additional testimony in the transcript that

should be turned over to defense counsel.

{¶12} The court subsequently issued an order requiring the State to disclose

an excerpt from the grand jury testimony to defense counsel. It found that the State’s

stipulation that no exculpatory evidence was submitted to the grand jury was

incomplete, and that “[t]he State went further and submitted evidence [to the grand

jury] that excluded any other possible cause, including affirmatively ruling out an

organic cause, for the child’s brain injury.” In addition to the information on the first

page of the grand jury transcript identifying the case and the persons present for the

proceedings, the court ordered the State to disclose one question asked of a witness—

6 OHIO FIRST DISTRICT COURT OF APPEALS

an officer from the Blue Ash Police Department1—and the corresponding answer.

{¶13} The State appealed and moved for a stay of the trial court’s order. The

trial court granted the motion for a stay in part and stayed the deadline for the State

to provide defense counsel with a redacted transcript containing only the excerpts

ordered to be disclosed. But it ordered the State to provide the court with a copy of the

redacted transcript to be filed under seal as an exhibit.

{¶14} We granted the State’s motion for leave to appeal, and we extended the

stay of the trial court’s order pending resolution of the appeal.

II. Propriety of the Disclosure Order

{¶15} In a single assignment of error, the State argues that the trial court

abused its discretion in granting Flannery’s motion to disclose grand jury testimony

to defense counsel.

{¶16} A trial court’s order for the disclosure of grand jury testimony is

reviewed for an abuse of discretion. Flannery I, 2025-Ohio-1074, at ¶ 11 (1st Dist.). An

abuse of discretion occurs when “a court exercise[es] its judgment, in an unwarranted

way, in regard to a matter over which it has discretionary authority.” Johnson v.

Abdullah, 2021-Ohio-3304, ¶ 35. It implies that the trial court’s attitude is arbitrary,

unreasonable, or unconscionable. Gipson v. Mercy Health Sys. of S.W. Ohio, 2025-

Ohio-2208, ¶ 12 (1st Dist.). Under this deferential standard of review, an appellate

court may not substitute its judgment for that of the trial court. Id.

{¶17} As we explained in Flannery I, “[t]he secrecy enshrouding grand jury

proceedings is a time-honored facet of our country’s criminal legal system.” Flannery I

at ¶ 12. This principle is codified in Crim.R. 6(E), which provides in relevant part that

1 We include this information solely because the record establishes that this information was

conveyed to Flannery by the State during the proceedings before the trial court.

7 OHIO FIRST DISTRICT COURT OF APPEALS

“[d]eliberations of the grand jury and the vote of any grand juror shall not be

disclosed.” Because of the heavy protection accorded to the secrecy of the grand jury,

transcripts from that body may be disclosed only under very limited circumstances.

Flannery I at ¶ 13. “To require disclosure, the accused must show that ‘the ends of

justice require it’ and ‘a particularized need for disclosure exists which outweighs the

need for secrecy.’” Id., quoting State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two

of the syllabus.

{¶18} In Flannery I, we held that Flannery had shown a particularized need

to establish that exculpatory evidence was not presented to the grand jury. Id. at ¶ 22.

We further held that it was not necessary for the entire grand jury transcript to be

disclosed to meet this need, and suggested that Flannery’s need could be met while the

secrecy of the grand jury remained protected if either the State stipulated that no

exculpatory evidence had been presented to the grand jury or the trial court made a

factual finding of that nature. Id. at ¶ 27.

{¶19} On remand, the State made the suggested stipulation. At that point,

Flannery’s particularized need was met. He was able to use the State’s concession that

no exculpatory evidence had been presented to the grand jury in support of his motion

to dismiss. The trial court, however, determined that the State’s stipulation was

incomplete because it believed that the transcript established that “[t]he State went

further and submitted evidence that excluded any other possible cause, including

affirmatively ruling out an organic cause, for the child’s brain injury.” The trial court

then ordered the State to disclose an excerpt from the transcript.

{¶20} Following our review of the grand jury transcript, we disagree with the

trial court’s interpretation of the testimony contained within that transcript excerpt.

The trial court’s finding that the testimony “excluded any other possible cause,

8 OHIO FIRST DISTRICT COURT OF APPEALS

including affirmatively ruling out an organic cause, for the child’s brain injury” is

inaccurate.2 As is to be expected in a grand jury proceeding, the State presented

evidence that furthered and supported its belief that Flannery committed the charged

offenses. The testifying witness, a police officer, conveyed information that he had

received that established that the injuries to M.F. were intentional, rather than

accidental or organic. The testimony did not “exclude[] any other possible cause” of

M.F.’s injury. It simply set forth the State’s case and failed to reference any of

Flannery’s exculpatory information.

{¶21} Flannery contends that he is entitled to know whether the State

presented false information to the grand jury. He asserts that the fact that the State

had knowledge that the juvenile court proceedings did not result in a finding of

probable cause that he had abused M.F. necessarily means that the State called a

witness to testify before the grand jury who intentionally provided false information.

We cannot agree with this assertion. The testimony set forth inculpatory information

that the witness had received during his investigation regarding the cause of injury to

the child. We cannot say that this information was demonstrably false solely because

it had been contested in the juvenile court proceedings and resulted in a finding by the

juvenile court of no probable cause.

{¶22} Flannery’s particularized need was met when the State stipulated that it

had not presented exculpatory evidence to the grand jury. In ordering disclosure of the

excerpt from the grand jury testimony, the trial court provided Flannery with

information that was not limited to his particularized need. The testimony ordered to

2 As we explain our reasoning and discuss the contents of the transcript, we are cognizant of the

need to protect the secrecy of the grand jury proceedings and the testimony contained within the grand jury transcript.

9 OHIO FIRST DISTRICT COURT OF APPEALS

be disclosed went beyond establishing that exculpatory evidence had not been

presented and provided Flannery with the inculpatory evidence that the State had

introduced.

{¶23} We accordingly hold that the trial court abused its discretion in ordering

the State to disclose an excerpt from the grand jury testimony and sustain the State’s

assignment of error.

III. Conclusion

{¶24} The trial court’s judgment ordering disclosure is reversed, and this

cause is remanded for further proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

NESTOR and MOORE, JJ., concur.