[Cite as State v. Hedges, 2013-Ohio-1645.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 11-CA-39
ROBERT T. HEDGES, JR.
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 10CR382
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX JAMES L. DYE
Prosecuting Attorney P.O. Box 161
Fairfield County, Ohio Pickerington, Ohio 43147
239 W. Main Street, Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 11-CA-39 2
Hoffman, P.J.
{¶1} Defendant-appellant Robert T. Hedges, Jr. appeals his convictions
entered by the Fairfield County Court of Common Pleas. Plaintiff-appellee is the state
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 1, 2010, A.H., a five year-old girl, told her babysitter she was
experiencing pain while urinating. Subsequently, A.H. was taken to Fairfield Medical
Center for examination, treatment and analysis. A.H. was also interviewed at Fairfield
County Child Advocacy Center, during which she indicated she was touched by her
grandmother's friend. She stated that person touched her under her clothes and
underwear with his fingers. She then pointed to the circled vagina on an anatomical
drawing. A.H. stated the room had "a lot of bunnies" and was "pink, pink, pink." She
indicated the person had no hair on his head.
{¶3} Detective Eric Duemmel of the Lancaster City Police Department
investigated the home of A.H's grandmother where Appellant also resided. Evidence at
trial established Appellant has no hair on his head, and occupied a room in the
residence with pinkish color wall paper and rabbits in the room.
{¶4} An employee of the Ohio Bureau of Criminal Investigation, Cindy Erwin,
conducted a polygraph examination of Appellant. Following the polygraph, Appellant
told Erwin he had been drinking, came home and went directly to his room. The next
thing he realized was somebody standing beside him. He put his hand against her
vagina or on her vagina. Appellant told Erwin he put his hands in A.H.'s pants. He then
Fairfield County, Case No. 11-CA-39 3
dropped his head, got quiet and nodded yes when asked if he would prefer to talk to
Detective Duemmel.
{¶5} Appellant told Detective Duemmel he touched A.H.'s vagina. He had been
out drinking, and went to lie down on his bed. He stated A.H. came into his room,
walked up beside his bed, and stood beside the bed. He lifted her nightgown and
touched her vagina. He indicated he pulled down her underwear, and used his other
hand to touch her vagina. Appellant indicated there was penetration.
{¶6} On September 17, 2010, Appellant was indicted by the Fairfield County
Grand Jury on one count of rape, in violation of R.C. 2907.02(A), and one count of
gross sexual imposition, in violation of R.C. 2907.05(A).
{¶7} Appellant filed a motion to suppress the statements made immediately
following the polygraph examination. The trial court conducted a hearing on the motion
to suppress on April 27, 2011. The trial court overruled the motion to suppress via
Judgment Entry of May 12, 2011.
{¶8} The matter proceeded to jury trial. Appellant made a Criminal Rule 29
motion for acquittal following the presentation of the state's case. The trial court
overruled the motion. Appellant did not call any witnesses, nor present a defense to the
state's case. The jury found Appellant guilty on both counts. The trial court then
sentenced Appellant on the rape charge to a term of fifteen years to life, finding the rape
count and GSI count allied offenses of similar import and merged for the purposes of
sentencing.
{¶9} Appellant now appeals, assigning as error:
Fairfield County, Case No. 11-CA-39 4
{¶10} “I. THE TRIAL COURT ERRED AND THEREBY DEPRIVED APPELLANT
OF DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE
PROVISIONS OF THE OHIO CONSTITUTION BY DENYING APPELLANT’S MOTION
TO SUPPRESS.
{¶11} “II. THE DEFENDANT’S STATEMENTS MUST BE SUPPRESSED AS
THE STATE OF OHIO FAILED TO RECORD THE FOLLOW UP INTERROGATION,
OR FAILED TO MAINTAIN THOSE RECORDINGS.
{¶12} “III. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S
SECOND MOTION FOR A BILL OF PARTICULARS REQUESTING A MORE
SPECIFIC DATE OF THE ALLEGED INCIDENT.”
I & II
{¶13} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶14} Appellant maintains the trial court erred in denying his motion to suppress.
{¶15} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio
St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v. Guysinger,
86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the trial court
failed to apply the appropriate test or correct law to the findings of fact. In that case, an
appellate court can reverse the trial court for committing an error of law. State v.
Fairfield County, Case No. 11-CA-39 5
Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's findings
of fact are not against the manifest weight of the evidence and it has properly identified
the law to be applied, an appellant may argue the trial court has incorrectly decided the
ultimate or final issue raised in the motion to suppress. When reviewing this type of
claim, an appellate court must independently determine, without deference to the trial
court's conclusion, whether the facts meet the appropriate legal standard in any given
case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85 Ohio
App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held in
Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), “... as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal.”
{¶16} Specifically, Appellant asserts he was in custody at the time he made his
incriminating statements; therefore, he should have been afforded his Miranda warnings
prior to the statements. Appellant maintains a reasonable person would have
understood he was not free to leave the scene, and would have felt his freedom of
movement restrained. United States v. Bengivena (1988), 845 F.2d 593.
{¶17} Appellant states the interview lasted approximately five hours. He was
driven to the interview by a detective, over an hour from home, and had no way to
leave. Appellant concludes a reasonable person would have believed himself in
custody under the circumstances. Berkemer v. McCarty (1984), 468 U.S. 420.
{¶18} In addition, Appellant maintains the trial court erred in overruling the
motion to suppress because the State failed to record the interrogation which occurred
subsequent to the polygraph examination, or failed to retain the recordings if made. We
Fairfield County, Case No. 11-CA-39 6
find Appellant has not affirmatively demonstrated prejudice as a result of the alleged
failure of the State as the outcome of the trial would not have been otherwise if the
recordings would have been made and/or available.
{¶19} Appellant demanded the polygraph examination and was informed there
would be a post-examination interview before he began the test. Appellant was
informed of his rights prior to the commencement of the examination, including his right
to remain silent and his right to counsel. He was informed he was free to terminate the
interview, as he had done on a prior occasion. Further, Appellant was promised a ride
home without regard to the results of the examination or the interview. We find a
reasonable person would have understood they were not in custody, and Appellant’s
freedom of movement was not restrained. Accordingly, we find the trial court did not err
denying Appellant's motion to suppress.
{¶20} Again, Appellant has not demonstrated prejudice as a result of the State’s
failure to provide a transcript of the interview. The record demonstrates Appellant
requested the polygraph examination, was informed of the post-interview, and orally
and in a signed writing made a statement admitting to the conduct at issue.
{¶21} The first and second assignments of error are overruled.
III
{¶22} In the third assignment of error, Appellant argues the trial court erred in
overruling his motion for a second bill of particulars requesting a more specific date of
the alleged incident. Appellant cites the Ohio Supreme Court's holding in State v.
Sellards (1985), 17 Ohio St.3d 169, in support,
Fairfield County, Case No. 11-CA-39 7
{¶23} "Ordinarily, precise times and dates are not essential elements of
offenses. Thus, the failure to provide dates and times in an indictment will not alone
provide a basis for dismissal of the charges. A certain degree of inexactitude of
averments, where they relate to matters other than elements of the offense, is not per
se impermissible or necessarily fatal to a prosecution.
{¶24} "An accused is not foreclosed from securing specificity of detail, however,
for R.C. 2941.07 provides that upon a request for a bill of particulars, ' * * * 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.' A bill of particulars has a limited purpose to elucidate or particularize the
conduct of the accused alleged to constitute the charged offense. See, e.g., State v.
Halleck (1970), 24 Ohio App.2d 74, 263 N.E.2d 917 [53 O.O.2d 195]; State v. Dinsio
(1964), 4 Ohio App.2d 309, 212 N.E.2d 606 [33 O.O.2d 353]. A bill of particulars is not
designed to provide the accused with specifications of evidence or to serve as a
substitute for discovery. State v. Wilson (1972), 29 Ohio St.2d 203, 280 N.E.2d 915 [58
O.O.2d 409]. Thus, ' * * * [o]rdinarily, specifications as to date and time would not be
required in a bill of particulars since such information does not describe particular
conduct, but [instead describes] only when that conduct is alleged to have occurred,
knowledge of which * * * is generally irrelevant to the preparation of a defense.'
(Emphasis sic.) State v. Gingell (1982), 7 Ohio App.3d 364, 367, 455 N.E.2d 1066.
{¶25} "While temporal information is generally irrelevant in preparing a defense,
this court agrees with the court in Gingell, supra, that the state must, in response to a
bill of particulars or demand for discovery, supply specific dates and times with regard to
Fairfield County, Case No. 11-CA-39 8
an alleged offense where it possesses such information. As was stressed in Gingell at
368, 455 N.E.2d 1066: ' * * * No door, however remote and uncertain, ought to be
closed to an accused engaged in the task of preparing a defense to a criminal charge.
Clearly it is wisest to err on the side of openness and disclosure.'
{¶26} "The exercise of good faith on the part of the prosecution is essential in
maintaining public trust and confidence in the integrity of our criminal justice system.
Adherence to the above-stated rule will insure that no constitutional right of an accused
to due process or a fair trial will be transgressed.
{¶27} "This court would hasten to add that inexactitude, even where the state is
simply unable to comply with times and dates more specific than those found in the
indictment, may also prove fatal to prosecution. Such would be the case if the absence
of specifics truly prejudices the accused's ability to fairly defend himself."
{¶28} The indictment in this matter alleges Appellant "During the time period
between the 1st day of June 2009 and the 1st day of June 2010…" It specifies a one
year time period within which Appellant is alleged to have committed the conduct.
{¶29} As set forth in Sellards, supra, the State must supply specific dates and
times where the State possesses said information. However, where [as here] the State
acts in good faith, and does not possess the information due to the nature of the
conduct and the age of the victim, a trial court does not err in denying the motion. In a
case such as this involving a sexual crime committed against a minor, we find one year
is not an unreasonable period of time to consider in preparation of a defense where
date and time are not an essential element of the offense and the age of the child is not
an issue. Id.
Fairfield County, Case No. 11-CA-39 9
{¶30} The third assignment of error is overruled.
{¶31} Appellant's convictions in the Fairfield County Court of Common Pleas are
affirmed.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ John W. Wise _____________________
HON. JOHN W. WISE
Fairfield County, Case No. 11-CA-39 10
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ROBERT T. HEDGES, JR. :
:
Defendant-Appellant : Case No. 11-CA-39
For the reasons stated in our accompanying Opinion, Appellant's convictions in
the Fairfield County Court of Common Pleas are affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ John W. Wise _____________________
HON. JOHN W. WISE