[Cite as State v. Carr, 2019-Ohio-3802.]

 

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

BRANDON CHARLES CARR 

Defendant-Appellant 

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Appellate Case No. 28193 

Trial Court Case No. 2016-CR-745/2 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the 20th day of September, 2019. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery 

County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 

West Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

BRANDON CHARLES CARR, #A742-713, P.O. Box 120, Lebanon, Ohio 45036 

 Defendant-Appellant, Pro Se 

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FROELICH, J. 
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{¶ 1} Following a jury trial, Brandon Charles Carr was convicted of 13 offenses, 

together with gun specifications as to six of those offenses. Carr filed separate appeals 

from his March 13, 2018 judgment of conviction and from a July 12, 2018 post-judgment 

decision of the trial court, which appeals have been consolidated and remain pending 

before this court. See State v. Carr, 2d Dist. Montgomery C.A. Nos. 27960 and 28080. 

Carr’s current appeal challenges an additional post-judgment order issued by the trial 

court on October 11, 2018. The October 11, 2018 judgment of the trial court will be 

affirmed. 

Factual and Procedural Background

{¶ 2} In February 2016, Brittany Russell was discovered inside her car in the 

parking lot of a Dayton apartment complex, dead from bullet wounds to the head. 

Russell’s infant daughter was found unharmed in the back seat. 

{¶ 3} On March 23, 2017, a Montgomery County grand jury indicted Carr on 12 

counts related to Russell’s death: Count One, aggravated murder (while committing 

felony murder) in violation of R.C. 2903.01(B), an unclassified felony; Count Two, murder 

(purposeful) in violation of R.C. 2903.02(A), an unclassified felony; Counts Three and 

Four, murder (proximate result) in violation of R.C. 2903.02(B), both unclassified felonies; 

Count Five, kidnapping (felony or flight) in violation of R.C. 2905.01(A)(2), a first-degree 

felony; Count Six, kidnapping (terrorize/physical harm) in violation of R.C. 2905.01(A)(3), 

a first-degree felony; Count Seven, felonious assault (deadly weapon) in violation of R.C. 

2903.11(A)(2), a second-degree felony; Count Eight, felonious assault (serious physical 

harm) in violation of R.C. 2903.11(A)(1), a second-degree felony; Counts Nine and Ten, 

tampering with evidence (alter/destroy) in violation of R.C. 2921.12(A)(1), both third-
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degree felonies; Count Eleven, endangering children (abuse) in violation of R.C. 

2919.22(B)(1), a first-degree misdemeanor; and Count Twelve, having weapons under 

disability (prior drug conviction) in violation of R.C. 2923.13(A)(3), a third-degree felony. 

The indictment also charged Carr with firearm specifications as to Counts One through 

Eight. On April 11, 2017, another indictment under the same case number charged Carr 

with a single count of possession of heroin (50 grams but less than 250 grams) in violation 

of R.C. 2925.11(A), a first-degree felony. Carr pled not guilty to all charges under both 

indictments. 

{¶ 4} On January 16, 2018, Carr moved to dismiss the charges against him, based 

in part on the pre-indictment destruction of Russell’s car and any evidence it may have 

contained. The trial court orally denied that motion after a hearing. (See Montgomery C.A. 

No. 28193, Doc. #321.)1 On January 27, 2018, Carr moved for reconsideration of the 

decision denying his motion to dismiss (“first motion to reconsider”). The court did not 

address that motion for reconsideration before the case proceeded to a jury trial beginning 

on January 29, 2018. 

{¶ 5} Prior to trial, Carr waived a jury as to the Count Twelve charge of having 

weapons under disability, opting to allow the trial court to decide that count. (See Case 

No. 28193, Doc. #324.) The drug charge contained in the second indictment therefore 

became Count Twelve as submitted to the jury. On the final day of trial, after discussing 

 

1 In his Motion to Reconsider Motion to Dismiss, Carr avers that the trial court overruled 

his motion to dismiss “at the conclusion of a non-evidentiary hearing held on January 22, 

2018.” (See Doc. #321.) Similarly, the trial court later acknowledged that it “did not issue 

a written decision” regarding Carr’s original motion to dismiss. (See 7/12/18 Nunc Pro 

Tunc Order). 
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Carr’s motion for reconsideration and considering certain testimony presented, the court 

issued a written order phrased as a denial of Carr’s motion to dismiss. (See 2/6/18 Order 

Denying Motion to Dismiss.) 

{¶ 6} The jury found Carr guilty of Counts One through Twelve (the drug count 

under indictment B) and of the firearm specifications to Counts One through Five and 

Eight; the jury found Carr not guilty of the firearm specifications to Counts Six and Seven. 

The trial court also found Carr guilty of having weapons under disability. On March 13, 

2018, the court merged certain counts and sentenced Carr to an aggregate prison term 

of life without parole, plus an additional 34 years. The same judgment entry ordered Carr 

to pay restitution in the amount of $4,028 to Vivian Mills.2 Carr filed a timely notice of 

appeal from that judgment of conviction. See Case No. 27960. 

{¶ 7} On July 7, 2018, with his direct appeal pending, Carr filed a pro se motion in 

the trial court, asking the court to “journalize” a decision on his January 27, 2018 motion 

for reconsideration of the denial of his motion to dismiss. On July 12, 2018, the trial court 

granted that motion in part and entered a nunc pro tunc order amending the February 6, 

2018 Order Denying Motion to Dismiss to reflect that such order denied both Carr’s motion 

to dismiss and his later motion for reconsideration of the motion to dismiss. 

{¶ 8} On July 27, 2018, Carr filed a motion for reconsideration of the trial court’s 

July 12, 2018 nunc pro tunc order (“second motion to reconsider”). Shortly thereafter, he 

filed a notice of appeal from the same decision. See Case No. 28080. 

{¶ 9} Carr subsequently filed a series of pro se motions in the trial court. Pertinent 

 

2 The trial court’s October 11, 2018 order on Carr’s later motions identifies Mills as Brittany 

Russell’s sister.
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to the instant appeal, on August 6, 2018, he filed a motion to stay the restitution award 

included in his judgment of conviction; on August 20, 2018, he filed a motion pursuant to 

R.C. 149.43(B)(8) for copies of the jury verdict forms; and on August 29, 2018, he filed a 

motion for grand jury testimony from his case, purportedly to support a petition for 

postconviction relief. 

{¶ 10} On October 11, 2018, the trial court issued a decision ruling on those and 

other post-judgment pro se motions filed by Carr. The court denied Carr’s motion to 

reconsider the July 12, 2018 nunc pro tunc order, finding that such order properly 

corrected a clerical mistake, and further finding that the court lacked jurisdiction to 

reconsider that order given Carr’s pending appeal in Case No. 28080. As to the restitution 

order, the court found that it lacked statutory authority to stay the payment of restitution 

and further indicated that “it would decline to exercise” such authority in Carr’s case, even 

if such authority existed. With regard to Carr’s request for copies of the jury verdict forms, 

the court determined that verdict forms bearing the names of jurors “are not public 

records” subject to production under R.C. 149.43(B)(8), and that Carr also “ha[d] not 

shown that the information sought in the jury verdict forms is necessary to support a 

justiciable claim.” Finally, with respect to Carr’s motion for grand jury testimony, the court 

held that it lacked jurisdiction to consider that request because Carr had not filed a petition 

for postconviction relief and no other pending criminal matters in his case required 

additional discovery. The court further invoked its discretion to deny that request due to 

Carr’s failure “to show a particularized need for the grand jury testimony.” 

{¶ 11} Carr appeals from the October 11, 2018 judgment, asserting these four 

assignments of error: 
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1) [The] Trial Court erred and violated Mr. Carr’s U.S. Constitutional Right 

to Substantive and Procedural Due Process when it denied Mr. Carr’s 

Motion for Reconsideration pertaining to the unlawful NUNC PRO TUNC 

entry while also holding the Trial Court does not have Jurisdiction to 

Reconsider. 

2) [The] Trial Court abused its Discretion when it denied Mr. Carr’s Motion 

to Stay Restitution. 

3) [The] Trial Court violated Mr. Carr’s U.S. [C]onstitutional right to 

Substantive and Procedural Due Process when the Trial Court denied Mr. 

Carr’s request for Jury Verdict Form. 

4) Mr. Carr’s Constitutional Right to Substantive and Procedural Due 

Process was violated when the Trial Court denied Carr’s request for Grand 

Jury Transcript’s Testimony [sic] when M[r]. Carr showed a Particularized 

Need. 

{¶ 12} We will address these assignments of error in the order most conducive to 

our review. 

Assignment of Error #2 – Motion to Stay Restitution

{¶ 13} Carr contends that the trial court erred by denying his motion to stay the 

payment of restitution. Carr claims to have established his indigent status in the trial court. 

He further argues that deducting restitution payments from his prison account is “premature” because his direct appeal remains pending and the judgment against him could 

be reversed. 

{¶ 14} Trial court decisions regarding restitution are subject to review under an 
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abuse of discretion standard. State v. Jacobs, 2018-Ohio-671, 106 N.E.3d 897, ¶ 10 (2d 

Dist.), citing State v. Amburgey, 2d Dist. Greene No. 2010 CA 14, 2011-Ohio-748, ¶ 130; 

State v. Moore, 2d Dist. Clark No. 2010 CA 55, 2010-Ohio-6226, ¶ 13. A court abuses its 

discretion if its decision as to restitution is “grossly unsound, unreasonable, illegal, or 

unsupported by the evidence.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 45 (2d 

Dist.), quoting State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, 

¶ 18 (2d Dist.). 

{¶ 15} Although R.C. 2929.18(A)(1) authorizes a trial court to modify “the payment 

terms of any restitution ordered,” we on at least one occasion have declined to address 

whether a trial court has discretion to stay a restitution order. See State v. Dunson, 2d 

Dist. Montgomery No. 26990, 2016-Ohio-8365, ¶ 15, rev’d on other grounds, 156 Ohio 

St.3d 180, 2018-Ohio-5213, 124 N.E.3d 787 (“Assuming, without deciding, that a trial 

court has discretion to stay the enforcement of restitution, * * *”). Elsewhere, however, 

this court has stated that “[a] court lacks the power to grant [a stay of restitution] absent 

statutory authority[,] * * * and we are aware of none.” State v. Wilson, 2d Dist. Montgomery 

Nos. 24461, 24496, 24501, 2012-Ohio-1660, ¶ 24; see also Dunson at ¶ 24 (Hall, J., 

concurring) (“The trial court is without authority to vacate, waive, suspend, stay, or modify 

the restitution owed” where no payment terms have been specified). 

{¶ 16} Other appellate courts also have concluded that trial courts have very 

limited authority to implement changes to an earlier restitution order. See, e.g., State v. 

Downey, 12th Dist. Clermont No. CA2016-02-006, 2016-Ohio-5778, ¶ 15-18; State v. 

Getz, 12th Dist. Butler No. CA2015-08-159, 2016-Ohio-3397, ¶ 13; State v. Corbitt. 5th 

Dist. Richland No. 2011-CA-107, 2012-Ohio-3795, ¶ 15; State v. Sekic, 8th Dist. 
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Cuyahoga No. 95679, 2011-Ohio-4809, ¶ 47; State v. Purnell, 171 Ohio App.3d 466, 

2006-Ohio-6160, 871 N.E.2d 613, ¶ 9 (1st Dist.). 

{¶ 17} The trial court did not abuse its discretion in denying Carr’s motion to stay 

restitution. As noted in Wilson at ¶ 24, we are unaware of any statutory authority that 

would permit the trial court to revise its restitution order for any purpose other than a 

modification of specific payment terms. See R.C. 2929.18(A)(1). Here, no payment terms 

had been stated, and Carr did not seek to revise payment terms, but rather to stay 

payment. Further, the trial court acted within its discretion in declining to stay Carr’s 

restitution obligation based on its conclusion that “the interests of the victim’s sister in 

receiving restitution outweigh[ed]” Carr’s cited interest in maintaining a balance in his 

prison account in order to cover the cost of mailing legal documents. Moreover, Ohio 

Adm. Code 5120-5-03(D) provides that deductions may be made from an inmate account 

only if the account retains a $25 balance “for inmate expenditures.” That provision helps 

to protect Carr’s ability to maintain funds for mailing expenses and access to the courts. 

{¶ 18} Carr’s second assignment of error is overruled. 

Assignment of Error #3 – Motion for Jury Verdict Forms 

{¶ 19} In his third assignment of error, Carr argues that the trial court violated his 

constitutional right to substantive and procedural due process by denying his request for 

copies of the jury verdict forms. Carr maintains that the jury verdict forms are public 

records subject to production under R.C. 149.43(B)(8) and are necessary to support a 

justiciable claim. 

{¶ 20} The statute on which Carr relies provides in pertinent part as follows: 

A public office or person responsible for public records is not required to 
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permit a person who is incarcerated pursuant to a criminal conviction or a 

juvenile adjudication to inspect or to obtain a copy of any public record 

concerning a criminal investigation or prosecution * * *, unless the request 

to inspect or to obtain a copy of the record is for the purpose of acquiring 

information that is subject to release as a public record under this section 

and the judge who imposed the sentence or made the adjudication with 

respect to the person, or the judge’s successor in office, finds that the 

information sought in the public record is necessary to support what 

appears to be a justiciable claim of the person. 

R.C. 149.43(B)(8). 

{¶ 21} Although Carr attempts to frame this argument as a constitutional challenge, 

he has not articulated facts that support the existence of a due process violation. Absent 

a viable constitutional claim, we review a trial court’s ruling under R.C. 149.43(B)(8) for 

an abuse of discretion. State v. Stinson, 2019-Ohio-401, ___ N.E.3d ___, ¶ 8 (2d Dist.).

A trial court does not abuse its discretion when it denies a motion under R.C. 149.43(B)(8) 

made by a person who has not demonstrated that he has a justiciable claim or that the 

public records he seeks are necessary to support such a claim. State v. Reid, 2d Dist. 

Montgomery No. 24672, 2012-Ohio-1659, ¶ 13; see also Stinson at ¶ 10. 

{¶ 22} The Supreme Court of Ohio has determined that “[j]uror names, addresses, 

and questionnaire responses are not ‘public records’ as contemplated by R.C. 149.43.” 

State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 

781 N.E.2d 180, paragraph one of the syllabus. The jury verdict forms Carr seeks contain 

the names of the jurors at Carr’s trial. Accordingly, the trial court did not err in determining 
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that those forms are not public records subject to a request under R.C. 149.43(B)(8). 

{¶ 23} Further, the trial court did not abuse its discretion in concluding that Carr 

had not demonstrated the existence of a justiciable claim. Establishing a justiciable claim 

“ordinarily involves identifying a ‘pending proceeding with respect to which the requested 

documents would be material.’ ” State v. Morris, 2d Dist. Montgomery Nos. 26949, 26960, 

2017-Ohio-1196, ¶ 30, quoting State v. Wilson, 2d Dist. Montgomery No. 23247, 2009-

Ohio-7035, ¶ 5, quoting State v. Gibson, 2d Dist. Champaign No. 06-CA-37, 2007-Ohio7161, ¶ 14. See also State v. Dowell, 8th Dist. Cuyahoga No. 102408, 2015-Ohio-3237, 

¶ 7 (“[a] ‘justiciable’ claim is one that is capable of affording appropriate relief and 

ordinarily involves identifying a pending proceeding to which the requested documents 

would be material.”). (Citation omitted.) In moving for copies of the jury verdict forms, 

Carr stated that he was making the request “for all postconviction relief purposes to 

present justiciable claims.” He did not identify any pending proceeding, nor did he 

articulate how the jury verdict forms would be material to any justiciable claim he may 

have. 

{¶ 24} A trial court does not abuse its discretion by denying an R.C. 149.43(B)(8) 

motion in which the movant references without elaboration the existence of justiciable 

claims. See Stinson, 2019-Ohio-401, ___ N.E.3d ___, at ¶ 10 (finding that defendant’s 

“vague reference to ‘any justiciable [c]laims’ failed to show that [he] had any particular 

claim to pursue”); State v. Wofford, 12th Dist. Butler No. CA2016-03-057, 2016-Ohio7188, ¶ 15 (defendant “cannot sufficiently carry his burden of showing a justiciable claim 

by merely alluding to possible future proceedings that could result from access to the 

records” requested). (Emphasis sic.) Carr provided no information to substantiate the 
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existence of a justiciable claim for postconviction purposes. 

{¶ 25} Carr’s third assignment of error is overruled. 

Assignment of Error #4 – Motion for Grand Jury Testimony

{¶ 26} In his fourth assignment of error, Carr again argues that the trial court 

violated his constitutional right to substantive and procedural due process – in this 

instance, by denying Carr’s motion for a transcript of the grand jury testimony. Carr claims 

to have demonstrated a “particularized need” for that evidence through his assertions that 

the grand jury testimony of “unidentified witnesses” differed from their trial testimony, that 

his second indictment (for heroin possession) resulted from “[p]rosecutorial [m]isconduct,” 

and that the prosecution “coach[ed]” certain “unidentified witnesses.” (Appellant’s Merit 

Brief, p. 16.) 

{¶ 27} The question of whether a particularized need exists for the disclosure of 

grand jury transcripts “rests within the sound discretion of the trial court.” State v. McGill, 

2d Dist. Greene No. 99CA25, 2000 WL 1803650, *18 (Dec. 8, 2000), citing State v. 

Lawson, 64 Ohio St.3d 336, 345, 595 N.E.2d 902 (1992). “A court’s discretionary decision 

will not be overruled on appeal absent an abuse of discretion.” Id. Once again, Carr’s 

attempt to frame the issue as a constitutional claim does not alter our standard of review. 

{¶ 28} “Ohio law regards grand jury proceedings as secret, permitting the 

disclosure of testimony and other evidence that has been presented to a grand jury only 

when ‘the ends of justice require it.’ ” In re January 27, 2017 Order, 2018-Ohio-988, 108 

N.E.3d 1170, ¶ 7 (2d Dist.), quoting State v. Coley, 93 Ohio St.3d 253, 261, 754 N.E.2d 

1129 (2001) and State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph 

two of the syllabus. Despite the long history of secrecy attendant to grand jury 
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proceedings, in certain circumstances the court which supervised a grand jury may order 

that evidence presented to the grand jury be disclosed. State v. Webb, 2d Dist. Greene 

No. 2005 CA 52, 2006-Ohio-1113, ¶ 12, citing Petition for Disclosure of Evidence, 63 

Ohio St.2d 212, 218, 407 N.E.2d 513 (1980). Such disclosure may be ordered “only after 

the court carefully weighs the need to maintain the secrecy of the grand jury proceedings 

against [the] petitioner’s need for the information and determines that justice can only be 

done if disclosure is made.” Petition for Disclosure of Evidence at 218. 

{¶ 29} When the request for disclosure is made after trial, the factors to be 

considered regarding the need to preserve grand jury secrecy are: 

(1) [t]o prevent the escape of those whose indictment may be contemplated; 

(2) to insure the utmost freedom to the grand jury in its deliberations, and to 

prevent persons subject to indictment or their friends from importuning the 

grand jurors; (3) to prevent subornation of perjury or tampering with the 

witnesses who may testify before grand jury and later appear at the trial of 

those indicted by it; (4) to encourage free and untrammeled disclosures by 

persons who have information with respect to the commission of crimes; 

[and] (5) to protect [an] innocent accused who is exonerated from disclosure 

of the fact that he has been under investigation, and from the expense of 

standing trial where there was no probability of guilt. 

Id. at 219, quoting United States v. Rose, 2015 F.2d 617, 628-629 (3d Cir.1954). The 

court also must take into account “its ability to place protective limitations on any 

disclosure needed.” Id.

{¶ 30} “The petitioner’s burden to demonstrate ‘ “a particularized need for 
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disclosure [that] outweighs the need for secrecy” ’ is, however, ‘a threshold 

requirement.’ ” In re January 27, 2017 Order at ¶ 7, quoting State v. Curran, 166 Ohio 

App.3d 206, 2006-Ohio-773, 850 N.E.2d 81, ¶ 16 (2d Dist.) and Greer at syllabus. If the 

supervising court is able “to effectively decide the extent of petitioner’s need for [grand 

jury] information, * * * it should decide whether justice requires that disclosure be made.” 

Petition for Disclosure of Evidence at 220. “A trial court does not abuse its discretion by 

finding no particularized need when a defendant speculates that grand jury testimony 

might have revealed contradictions.” (Citation omitted.) State v. Carr, 2d Dist. 

Montgomery No. 22603, 2009-Ohio-1942, ¶ 41. Accord State v. Heisey, 2015-Ohio-4610, 

48 N.E.3d 157, ¶ 35 (2d Dist.) (assertions that the grand-jury testimony might reveal 

contradictions in witness testimony “do not establish the requisite need”); State v. Mack,

73 Ohio St.3d 502, 508, 653 N.E.2d 329 (1995), quoting State v. Webb, 70 Ohio St.3d 

325, 337, 638 N.E.2d 1023 (1994) (trial court does not abuse discretion by finding 

defendant has not shown particularized need when defendant “ ‘speculates that the grand 

jury testimony might have contained material evidence or might have aided his crossexamination * * * by revealing contradictions’ ”). “A general assertion for the purpose of 

exploring ‘possible inconsistent statements by witnesses’ does not establish a 

particularized need.” McGill, 2d Dist. Greene No. 99CA25, 2000 WL 1803650 at *18, 

citing State v. Richey, 64 Ohio St.3d 353, 366, 595 N.E.2d 915 (1992). 

{¶ 31} “The same ‘particularized need’ analysis is applied to both trial and postconviction proceedings, and a defendant’s claim of need does not automatically entitle 

him to the records. Instead, the defendant ‘must first make a colorable claim for postconviction relief and then seek the transcripts.’ ” State v. Buelow, 2d Dist. Clark No. 06-
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CA-29, 2007-Ohio-131, ¶ 45, quoting State v. Walker, 4th Dist. Lawrence No. 04CA16, 

2005-Ohio-1584, ¶ 7. 

{¶ 32} In this case, the trial court did not err by denying Carr’s request for 

transcripts of all testimony presented to the grand jury that indicted him. The trial court 

first noted that Carr had no pending petition for postconviction relief. We have recognized, 

and other Ohio appellate courts agree, that a trial court lacks authority to grant a motion 

for production of grand jury testimony where no postconviction petition or other matter 

requiring discovery in the movant’s criminal case is pending before that court. See id. at 

¶ 45; see also State v. Harper, 5th Dist. Guernsey No. 13 CA 15, 2013-Ohio-3897, ¶ 19, 

citing State v. Russell, 10th Dist. Franklin No. 05AP-1325, 2006-Ohio-5945, ¶ 10; State 

v. Short, 8th Dist. Cuyahoga No. 38492, 2004-Ohio-3695, ¶ 7; State v. Herring, 5th Dist. 

Stark No. 1996 CA 00385, 1997 WL 219249 (March 17, 1997). The trial court did not 

abuse its discretion by concluding that it lacked authority to provide the relief Carr sought. 

{¶ 33} Neither did the trial court abuse its discretion by determining that Carr had 

failed to demonstrate a particularized need for the grand jury testimony. “The claim that 

a witness’s grand jury testimony may differ from trial testimony is insufficient to show a 

particularized need.” Harper at ¶ 22, citing State v. Henness, 79 Ohio St.3d 53, 62, 679 

N.E.2d 686 (1997); see also Carr, 2d Dist. Montgomery No. 22603, 2009-Ohio-1942, at 

¶ 41; Heisey, 2015-Ohio-4610, 48 N.E.3d 157, at ¶ 35. Carr has presented nothing to 

substantiate his suggestion that witnesses may have testified inconsistently, even 

declining to name the “unidentified witnesses” whose testimony he deems suspect. 

Further, contrary to Carr’s premise, inconsistencies between a witness’s grand jury and 

trial testimony would not prove that the witness’s later testimony was “coached.” 
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{¶ 34} Finally, Carr does not advance a credible argument that the grand jury 

transcripts would reveal prosecutorial misconduct infecting his second indictment for 

heroin possession. We have recognized that a motion for the disclosure of grand jury 

testimony may not be used to conduct a “fishing expedition” into speculative bases for 

relief. See State v. Boehm, 2d Dist. Montgomery No. 16335, 1997 WL 856285, *2 (Dec. 

31, 1997). Many other courts agree. See, e.g., State v. Burroughs, 165 Ohio App.3d 172, 

2005-Ohio-6411, 845 N.E.2d 540, ¶ 14 (3d Dist.); State v. Davis, 1st Dist. Hamilton No. 

C-940026, 1994 WL 466496, *1 (Aug. 31, 1994); State v. Pierce, 4th Dist. Vinton No. 474, 

1992 WL 276556, *3 (Oct. 6, 1992). 

{¶ 35} Having failed to establish the threshold requirement of a particularized 

need, Carr was not entitled to disclosure of the grand jury testimony. His fourth 

assignment of error is overruled. 

Assignment of Error #1 – Motion to Reconsider Nunc Pro Tunc Order

{¶ 36} Carr’s remaining assignment of error challenges the trial court’s denial of 

his motion for reconsideration of the nunc pro tunc order that denied his motion for 

reconsideration of the denial of his motion to dismiss. That assignment is not well taken, 

for multiple reasons. 

{¶ 37} The Ohio Constitution limits an appellate court’s jurisdiction to the review of 

final judgments or orders of lower courts. State v. Pennington, 187 Ohio App.3d 526, 

2010-Ohio-2139, 932 N.E.2d 941, ¶ 15 (2d Dist.), citing Section 3(B)(2), Article IV, Ohio 

Constitution; State v. Lewis, 9th Dist. Lorain No. 08 CA 9379, 2009-Ohio-3322, ¶ 4. “We 

have no jurisdiction to review an order or judgment that is not final, and an appeal 

therefrom must be dismissed.” Barrow v. The Living Word-Dayton, 2d Dist. Montgomery 
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No. 27935, 2018-Ohio-4641, ¶ 13, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio 

St.3d 17, 20, 540 N.E.2d 266 (1989). 

{¶ 38} Under R.C. 2505.02(B), “[a]n order is a final order that may be reviewed, 

affirmed, modified, or reversed, with or without retrial, when it is one of the following”: 

(1) An order that affects a substantial right in an action that in effect 

determines the action and prevents a judgment; 

(2) An order that affects a substantial right made in a special proceeding or 

upon a summary application in an action after judgment; 

(3) An order that vacates or sets aside a judgment or grants a new trial; 

(4) An order that grants or denies a provisional remedy and to which both 

of the following apply: 

(a) The order in effect determines the action with respect to the 

provisional remedy and prevents a judgment in the action in favor 

of the appealing party with respect to the provisional remedy. 

(b) The appealing party would not be afforded a meaningful or 

effective remedy by an appeal following final judgment as to all 

proceedings, issues, claims, and parties in the action. 

{¶ 39} As a general rule, a trial court is divested of jurisdiction once an appeal is 

taken, except to take action in aid of the appeal. State ex rel. Special Prosecutors v. 

Judges, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). The trial court does retain 

jurisdiction over issues not inconsistent with the power and jurisdiction of the appellate 

court to review, affirm, modify, or reverse the appealed judgment. Id.; citing In re 

Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657 (1942). However, if the decision that is the 
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subject of an appeal was an appealable order, then any subsequent trial court ruling on 

a motion for reconsideration of that appealable order would be a nullity. See State v. 

Morgan, 2d Dist. Clark No. 2012-CA-06, 2012-Ohio-4750, ¶ 10. 

{¶ 40} Already pending before us is Case No. 28080, Carr’s appeal from the trial 

court’s July 12, 2018 nunc pro tunc entry. Assuming that the July 12, 2018 entry was a 

final appealable order (an issue we reserve for determination in Case No. 28080), Carr’s 

appeal from that order divested the trial court of jurisdiction to rule on his motion for 

reconsideration of the same order. Alternatively, if the July 12, 2018 entry was not a final 

appealable order, the trial court’s decision on Carr’s motion for reconsideration of that 

order likewise was not a final appealable order, and we lack jurisdiction to consider Carr’s 

appeal from the second motion to reconsider. In either case, Carr’s challenge to the trial 

court’s denial of his second motion to reconsider cannot be sustained. 

{¶ 41} Carr’s first assignment of error is overruled. 

Conclusion

{¶ 42} The judgment of the trial court will be affirmed. 

. . . . . . . . . . . . . 

DONOVAN, J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck 

Michael P. Allen 

Brandon Charles Carr 

Hon. Steven K. Dankof