[Cite as State v. Price,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27651

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MELVIN PRINCE, JR. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 2014 03 0836 (A)

DECISION AND JOURNAL ENTRY

Dated: June 29, 2016

MOORE, Presiding Judge.

{¶1} Defendant-Appellant, Melvin Prince, Jr., appeals from his conviction in the

Summit County Court of Common Pleas. This Court affirms in part and reverses in part.

I.

{¶2} On the evening of March 22, 2014, Mr. Prince and his cousin, Christopher

Crenshaw, attended a private party at the home of Mr. Crenshaw’s friend. Joseph Campbell, an

acquaintance of Mr. Crenshaw’s, also attended the party. Toward the end of the evening, Mr.

Crenshaw asked Mr. Campbell to step outside. The two were joined by Mr. Prince, who stood

off to the side. Shortly thereafter, Mr. Campbell received a gunshot wound to the abdomen, and

Mr. Prince and Mr. Crenshaw fled. Mr. Campbell then managed to use his cell phone to call for

help.

{¶3} Mr. Campbell told the officers who helped him at the scene that Mr. Crenshaw

had shot him. After waking from surgery, however, he told the police that he believed Mr. 2

Prince had shot him. Mr. Campbell clarified that he was looking at Mr. Crenshaw immediately

before being shot and did not see a gun, so Mr. Prince must have been the shooter. He told the

police that he initially identified Mr. Crenshaw as the shooter because he thought he was going

to die and did not know Mr. Prince’s name. Knowing that Mr. Crenshaw would lead the police

to Mr. Prince, he gave them Mr. Crenshaw’s name.

{¶4} The police spoke with Mr. Crenshaw directly after the shooting, and he denied

having any involvement. They then spoke with Mr. Prince, who similarly denied having any

involvement. Based on Mr. Campbell’s statements and the statements of the witnesses they

interviewed after the shooting, the police charged both Mr. Crenshaw and Mr. Prince with

felonious assault and a gun specification. Mr. Crenshaw then met with the police again and told

them that Mr. Prince had shot Mr. Campbell. Mr. Crenshaw stated that, after he and Mr.

Campbell stepped outside, Mr. Campbell sprayed him in the face with pepper spray. He stated

that he started to run away, but heard a gunshot. Mr. Prince then reached him, helped him to

their car, and drove away. According to Mr. Crenshaw, Mr. Prince confessed to having shot Mr.

Campbell.

{¶5} A grand jury indicted Mr. Prince and Mr. Crenshaw on one count of felonious

assault and one attendant firearm specification. Their cases were later severed for purposes of

trial. Although Mr. Prince initially had appointed counsel, he later asked to represent himself.

The court ultimately allowed him to do so and appointed standby counsel. Mr. Prince then filed

several motions, including a demand for a bill of particulars. The State opposed his demand,

however, and the matter went to trial. At trial, the court formally rejected Mr. Prince’s demand

for a bill of particulars. 3

{¶6} At the conclusion of trial, the State asked the court to give the jury a complicity

instruction, and Mr. Prince objected. Following deliberations, the jury found Mr. Prince guilty

of felonious assault, but found that he did not use a firearm to facilitate the commission of the

offense. The court sentenced Mr. Prince to seven years in prison on the felonious assault charge.

{¶7} Mr. Prince now appeals from his conviction and raises three assignments of error

for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED AS A MATTER OF LAW BY REFUSING TO COMPEL THE PROSECUTOR TO FILE A BILL OF PARTICULARS AS IT DENIED [MR. PRINCE] THE RIGHT TO PROCEDURAL DUE PROCESS.

{¶8} In his first assignment of error, Mr. Prince argues that the trial court violated his

due process rights when it refused to order the State to produce a bill of particulars. According

to Mr. Prince, he was prejudiced by the State’s failure to provide him with a bill of particulars

because, up until the start of trial, he was unaware that he could be convicted under a theory of

complicity.

{¶9} Initially, we note that “motions for a bill of particulars [must] be filed within

twenty-one days of the arraignment.” State v. Wigle, 9th Dist. Summit No. 25593, 2011-Ohio-

6239, ¶ 26, citing Crim.R. 7(E). Mr. Prince was arraigned in April 2014, but did not file his

demand for a bill of particulars until November 2014. He, therefore, filed his demand well past

the twenty-one day time limit, and the trial court could have denied his demand as untimely. See

“Nonetheless, Crim.R. 7(E) also contains a provision permitting the trial court to order a bill

of particulars irrespective of timing.” State v. Vu, 9th Dist. Medina No. 11CA0058-M, 2012- 4

Ohio-2002, ¶ 37. As such, we still consider whether the trial court erred by denying Mr. Prince’s

untimely demand.

{¶10} The purpose of a bill of particulars is “to elucidate or particularize the conduct of

the accused alleged to constitute the charged offense” so as to “inform the defendant of the exact

nature of the charges against [him] so that [he] can prepare to defend against those charges.”

(Internal quotations and citations omitted.) State v. Schmolz, 9th Dist. Medina No. 12CA0004-

M,

. The Criminal Rules require the State to furnish a defendant with a bill

of particulars when ordered to do so or when presented with a timely demand. Crim.R. 7(E).

Even so, the State’s failure to do so is not per se reversible error. See Vu at ¶ 39, citing State v.

Chinn,

(1999). A reviewing court must ask “whether appellant’s lack of

knowledge concerning the specific facts a bill of particulars would have provided him actually

prejudiced him in his ability to fairly defend himself.”

. Accord State v. Vu, 9th

Dist. Medina No. 11CA0042-M,

(defendant must show actual prejudice

stemming from State’s failure to produce bill of particulars).

{¶11} Mr. Prince argues that he was prejudiced by the State’s refusal to file a bill of

particulars because he was not aware that he had to defend himself against a complicity charge.

He notes that he was charged strictly as a principal offender and that his indictment did not

include a charge of complicity. According to Mr. Prince, he was prepared to defend himself

against accusations that he was the person who shot Mr. Campbell. Not until the trial started,

Mr. Prince argues, did he learn that the State intended to seek a complicity instruction.

{¶12} Having reviewed the record, we cannot conclude that Mr. Prince has

demonstrated actual prejudice as a result of the State’s failure to file a bill of particulars. First, it

is not clear from the record that the jury convicted Mr. Prince on the basis of complicity. 5

Although the State asked for a complicity instruction near the close of trial, Mr. Prince did not

secure a transcript of the actual jury instructions. Accordingly, one is left to presume that the

court did, in fact, instruct the jury on complicity. Moreover, the verdict forms that the jury

signed do not include any language regarding Mr. Prince having been complicit in the

commission of the offenses. Mr. Prince presumes that the jury found him guilty of felonious

assault on the basis of complicity because the jury found him not guilty of the firearm

specification. This Court has recognized, however, that “a finding of not guilty on a

specification is independent of a finding of guilt on the principal offense charged.

‘Specifications are considered after, and in addition to, the finding of guilt on the principal

charge.’” State v. McDowell, 9th Dist. Summit No. 26697,

, quoting State

v. Perryman,

(1976).

{¶13} Second, even assuming that the jury found Mr. Prince guilty on the basis of

complicity, the record does not support his argument that, before trial, he was unaware of the

State’s intention to argue complicity. At an October 30, 2014 motion hearing, Mr. Prince

specifically asked the court why the prosecutor, on “numerous” occasions, had referenced there

being an issue of complicity when he, Mr. Prince, had been “indicted as being the shooter[.]”

After further discussion, the court then asked the prosecutor whether he was “saying [Mr. Prince

and Mr. Crenshaw] were complicit in this crime[.]” The prosecutor responded: “Yeah.

Absolutely. That’s the State’s theory.” Accordingly, Mr. Prince was on notice at least one and a

half months before his December 15, 2014 trial date that the State intended to argue complicity.

{¶14} The Ohio Supreme Court has recognized that “R.C. 2923.03(F) adequately

notifies defendants that the jury may be instructed on complicity, even when the charge is drawn

in terms of the principal offense.” State v. Herring,

(2002). 6

Accordingly, while his indictment charged him strictly as a principal offender, Mr. Prince had

constructive notice that the State could seek a complicity instruction at trial. Further, the State

gave him actual notice of its intention to do so at the motion hearing that took place more than a

month before trial. The record does not support Mr. Prince’s argument that the State “switched

to a complicity theory” after the trial commenced.

{¶15} Mr. Prince received a considerable amount of discovery during the course of the

proceedings, including the testimony before the grand jury. He was aware that both he and Mr.

Crenshaw were indicted on the same charges. Additionally, the State indicated in advance of

trial that it would seek a complicity instruction. Mr. Prince has not shown that the absence of a

bill of particulars “actually prejudiced him in his ability to fairly defend himself.” Chinn,

. Accordingly, we cannot conclude that the trial court committed reversible

error by not ordering the State to produce a bill of particulars. See Vu,

.

Mr. Prince’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN DENYING [MR. PRINCE’S] REQUEST TO CALL A CHARACTER WITNESS ON HIS BEHALF.

{¶16} In his second assignment of error, Mr. Prince argues that the trial court erred by

not allowing him to call a character witness in his case-in-chief. Under the particular facts and

circumstances of this case, we disagree.

{¶17} “The decision to admit or exclude evidence lies in the sound discretion of the trial

court.” State v. Wright, 9th Dist. Lorain No. 05CA008675,

, citing State v.

Sage,

(1987). “This Court, therefore, reviews the trial court’s decision

regarding evidentiary matters under an abuse of discretion standard of review.” Wright at ¶ 5. 7

An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable

in its ruling. Blakemore v. Blakemore,

(1983).

{¶18} In general, “[e]vidence of a person’s character or trait of character is not

admissible for the purpose of proving action in conformity therewith on a particular occasion * *

*.” Evid.R. 404(A). The general rule does not apply, however, when an accused wishes to offer

“[e]vidence of a pertinent trait of character * * *.” Evid.R. 404(A)(1). Specifically, “[a]

defendant may, at his option, offer evidence of his good character as proof that he did not

commit the act charged because such conduct is not in accord with his character.” 1980 Staff

Notes to Evid.R. 404. When he does so, “the introduction opens the door for the prosecution to

inquire about a defendant’s bad character.” State v. Mills, 9th Dist. Medina Nos. 02CA0037-M,

02CA0038-M,

, ¶ 54.

{¶19} At the conclusion of the State’s case, the court asked Mr. Prince whether he had

any witnesses to call. Mr. Prince then inquired as to whether he was permitted to call character

witnesses and the following discussion took place:

THE COURT: * * * Character evidence normally is not admitted. What kind of character would these individuals testify to?

MR. PRINCE: In regards to my character.

THE COURT: No, no. Just general character, somebody getting on the stand and saying you’re a great guy, that’s not permissible under the Rules of Evidence.

MR. PRINCE: So I’m denied the whole defense, then?

THE COURT: * * * You cannot put on evidence to say you’re a good guy, and so if you’re a good guy that means you didn’t commit this crime. It’s not admissible. Do you have any other witnesses?

MR. PRINCE: No.

Mr. Prince never proffered any testimony on his behalf or identified who his proposed character

witnesses might be. 8

{¶20} Mr. Prince argues that the trial court erred by not allowing him to call character

witnesses in his defense because Evid.R. 404(A)(1) expressly allows an accused to offer

evidence of his good character. Even assuming that the trial court erred, however, “more than

the mere absence of testimony is necessary to establish a violation of the right [to present

witnesses in one’s defense].” United States v. Valenzuela-Bernal,

(1982).

“To establish a violation of a defendant’s constitutional right to compulsory process the

defendant must show how the exclusion of testimony would have been both material and

favorable to his defense.” State v. Dugan, 9th Dist. Wayne No. 2566,

, *3

(Nov. 21, 1990), citing

. In other words, he must show that the court’s

error might have affected the outcome of his trial. Dugan at *3, citing

.

{¶21} Having reviewed the record, we cannot conclude that the trial court’s ruling

affected the outcome of Mr. Prince’s trial. It is entirely unclear from the record who Mr. Prince

sought to call in his defense or what testimony those individuals might have offered. Mr. Prince

only attempted to subpoena one witness for trial and he did not subpoena that witness to testify

as to his character. He did not file a witness list and he did not proffer the testimony of any of

the witnesses that he wished to call in his defense. See State v. Velez,

,

(9th Dist.) (“The purpose of a proffer is to assist the reviewing court in

determining, pursuant to Evid.R. 103, whether the trial court’s exclusion of evidence affected a

substantial right of the appellant.”) (Quotations and citations omitted.) The only statement he

made about the witnesses was that they would testify in regards to his character. Further, both

the victim, Mr. Campbell, and Mr. Prince’s cousin, Mr. Crenshaw, testified that Mr. Prince was

the shooter. Mr. Prince has failed to explain how the testimony of his character witnesses would

have undermined their testimony or otherwise changed the result in this matter. See Dugan at 9

*3. As such, even assuming that the trial court erred by excluding Mr. Prince’s witnesses, we

cannot conclude that he has demonstrated prejudice as a result of the trial court’s ruling. Mr.

Prince’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE SENTENCING ENTRY IMPOSES A PRISON TERM AND A NO CONTACT ORDER WHICH IS VOID AS A MATTER OF LAW AS EXPLAINED BY STATE V. ANDERSON.

{¶22} In his third assignment of error, Mr. Prince argues that the court erred when it

imposed a no-contact order in addition to the prison term it imposed on his sole conviction for

felonious assault. The State concedes the error.

{¶23} After the trial court sentenced Mr. Prince, the Ohio Supreme Court decided State

v. Anderson,

,

. In Anderson, the Supreme Court held that,

“as a general rule, when a prison term and community control are possible sentences for a

particular felony offense, absent an express exception, the court must impose either a prison term

or a community-control sanction or sanctions.” Id. at ¶ 31. Accordingly, “a prison term and a

no-contact order cannot be imposed on a defendant for the same offense * * *.” State v. Clark,

9th Dist. Summit No. 27511,

.

{¶24} The trial court sentenced Mr. Prince to a prison term on his felonious assault

count, but also ordered him not to have contact with the victim. It was an error for the court to

do so, and the no-contact portion of its judgment must be vacated. See id. at ¶ 19. Accordingly,

Mr. Prince’s third assignment of error is sustained, and this matter is remanded for further

proceedings. See State v. Clayton, 9th Dist. Summit No. 27515,

, ¶ 12. 10

III.

{¶25} Mr. Prince’s first and second assignments of error are overruled. His third

assignment of error is sustained. The judgment of the Summit County Court of Common Pleas

is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent

with the foregoing opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

CARLA MOORE FOR THE COURT 11

HENSAL, J. CONCURS.

SCHAFER, J. CONCURRING IN PART, AND DISSENTING IN PART.

{¶26} I concur fully in the majority’s resolution of the second and third assignments of

error. However, I believe that the resolution of the second assignment of error renders the first

assignment of error moot. See App.R. 12(A)(1)(c). Accordingly, I respectfully dissent from the

majority’s handling of the first assignment of error and would just reverse the trial court’s

judgment and remand the matter for further proceedings.

{¶27} Nevertheless, I believe that it is necessary to address the parties’ contentions on

the first assignment of error because they reflect the continued disregard by some trial courts and

prosecutors of the plain and unambiguous language of R.C. 2941.07 and Crim.R. 7(E). R.C.

2941.07 states that “[u]pon written request of the defendant made not later than five days prior to

the date set for trial, or upon the order of the court, 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.” (Emphasis added.) Crim.R. 7(E) similarly

requires the trial court to grant a motion for an original bill of particulars. These provisions are

mandatory and they directed the trial court to grant Prince’s motion for an original bill of

particulars. By failing to apply the clear language of R.C. 2941.07 and Crim.R. 7(E), the trial

court erred. See State v. Chinn,

(1999) (determining that “it was clear

error for the prosecution to fail to provide a bill of particulars and for the trial court to have

denied appellant’s motion” and instructing trial courts that “the denial of a timely request for a

bill of particulars should never occur”). 12

{¶28} Indeed, the trial prosecutor recognized the existence of these mandatory

provisions in his opposition brief to Prince’s motion for a bill of particulars. To quote from the

brief,

Since I started practice [in the Summit County Prosecutor’s Office], I have never been ordered to supply one, even when the defense had filed a motion for a bill. It is an antiquated paper which will not provide the defense with any information it does not already have. Requiring the state to respond to it in this case will open a flood gate for other cases where bills are just as useless there. This floodgate will unnecessarily eat up the limited time prosecutors already have. The Court and defense point out that the rule still exists, which is true. However, there are hundreds of old and antiquated laws and rules on the books, many overturned by the U.S. and Ohio Supreme Courts. The rules do not exist in a vacuum.

(Emphasis added.) Essentially, the State’s position below was that it had an obligation to furnish

the bill of particulars, but it was entitled to disregard that obligation because the assistant

prosecutor deemed it unnecessary.

{¶29} That is not how the law works. The Ohio Supreme Court has not struck down

R.C. 2941.07 or Crim.R. 7(E) as unconstitutional and it has even instructed trial courts that they

should always grant timely requests for bills of particulars. See

. In fact, this

instruction was handed down in 1999, which makes it far from “antiquated.” Neither the

judiciary nor litigants in a criminal lawsuit are entitled to pick and choose which constitutional

laws must be followed and which ones can be cast aside. Rather, the laws must be applied in

courtrooms as written, leaving aside any personal views of their wisdom. See State ex rel. Ohio

Academy of Trial Lawyers v. Sheward,

(1999) (“This court ‘has nothing

to do with the policy or wisdom of a statute. That is the exclusive concern of legislative branch

of the government.’”), quoting State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn.,

(1942). Doing that in this case could only possibly mean one thing: the

trial court should have rejected the State’s invitation to disregard R.C. 2941.07 and Crim.R. 7(E) 13

and instead granted Prince’s motion. And, it should have instructed the assistant prosecutor that

his quarrel with the policy implications of R.C. 2941.07 and Crim.R. 7(E) should be directed

towards the General Assembly or the drafters of the Criminal Rules, not the Court of Common

Pleas.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.