[Cite as State v. Owens, 2015-Ohio-3017.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

GALLIA COUNTY 

State of Ohio, : Case No. 14CA9 

Plaintiff-Appellee, : 

 ENTRY

v. : 

Anthony Owens, : 

 Defendant-Appellant. : RELEASED: 7/16/2015 

______________________________________________________________________

McFARLAND, A.J., 

{¶1} Owens filed a motion requesting access to the transcript of the grand jury 

proceedings that has been filed under seal as part of the appellate record. We denied his 

motion on the ground that that he must first petition the supervising court, the Common 

Pleas Court of Gallia County, under Crim R. 6(E). If that court should decline to address 

Owens’ petition because it cannot adequate assess Owens’ need for the material, then we 

may address the merits. State v. Owens, 4th Dist. Gallia App. No. 14CA9, 2015-Ohio1856, ¶ 11. Owens has now filed a renewed motion for access to the grand jury 

transcripts, arguing that his motion is now properly before us because his petition to the 

trial court was denied. The trial court determined “that it cannot adequately assess 

Defendant’s need for a grand jury transcript in the context of effective appellate advocacy.” 

State v. Owens, Gallia C.P. No. 11CR115 (June 10, 2015). 

{¶2} The state argues that the trial court’s decision is insufficient to permit this 

Court to review Owens’s motion because it was not a “written evaluation.” We disagree. 

The trial court expressly stated that it could not adequately assess Owens’s need for the 

transcript because the case is now at the appellate court level and Owens’s need arises 
Gallia App. No. 14CA9 2 

within the appellate context. We find this to be a written evaluation sufficient to permit us 

to proceed to address his motion on the merits. See State v. Owens, 4th Dist. Gallia App. 

No. 14CA9, 2015-Ohio-1856, ¶ 11. 

{¶3} Alternatively, the state argues that Owens has already filed his appellate 

brief, thus he no longer has a need to review the grand jury transcript. The state claims 

that Owens can neither supplement his brief nor can he raise new issues in a reply brief. 

The cases the state cites in support of its alternative argument all concern the bar against 

raising a new issue in a reply brief. None of the cases support the state’s argument that 

this Court could not permit a supplemental filing. Here, Owens has made an argument in 

his appellate brief that, based upon the trial court docket, there was an unauthorized 

person present before the grand jury in violation of Crim.R. 6(D). We can permit Owens, 

upon request, to file a supplemental brief to provide additional information from the grand 

jury transcript that would support this argument – no new issue is raised by such a 

supplementation. See State v. Grier, 3rd Dist. App. No. 3-10-09, 2011-Ohio-902, ¶ 6 (court 

granted appellant’s motion to file supplemental brief). 

{¶4} Owens argues that he has a particularized need for access to the grand jury 

transcript because: (1) the grand jury was conducted by an unauthorized person in 

violation of Crim.R. 6(D) and R.C. 2939.10 and (2) he believes there may have been 

inconsistencies between the victim’s grand jury and trial testimony. Because the case has 

been tried, witness testimony given in a public forum, and a jury verdict rendered, Owens 

argues that the balance weighs heavily in his favor as the need for secrecy no longer 

exists. The state argues that Owens has not shown a particularized need because, even 

assuming an unauthorized person was present, he has no need to find out what the 

unauthorized person may have said or did. The state does not address whether there 
Gallia App. No. 14CA9 3 

continues to be a need to maintain the secrecy of the grand jury proceedings at the 

appellate stage. 

{¶5} After reviewing the memoranda and the relevant law, we GRANT IN PART

and DENY IN PART Owens’s motion. 

I. 

{¶6} Crim.R. 6(E) provides that matters other than the deliberations of a grand 

jury or the vote of a grand juror may be disclosed “only when so directed by the court 

preliminary to or in connection with a judicial proceeding * * *.” 

{¶7} Upon a motion from the defendant, the trial court considers “the basis of the 

particularized need advanced by the defendant.” State v. Greer, 66 Ohio St.2d 139, 150, 

420 N.E.2d 982 (1981). In considering the basis of the particularized need, the trial court 

may perform an in camera inspection of the grand jury matters assisted by counsel. Id. In 

Greer, the Supreme Court of Ohio explained the process to follow after the defendant has 

shown a particularized need: 

[O]nce a particularized need for the grand jury material is shown, the 

necessity of preserving grand jury secrecy is lessened, largely because the 

witness, in testifying at trial, has given up any anonymity he might have had 

and has made public the events which are the subject of the grand jury 

testimony being sought. Under such circumstances, when there is a 

balancing of the often minimal need to preserve secrecy against the need for 

the defendant to review certain portions of the grand jury testimony, we 

conclude that all relevant portions of the transcript should be produced, with 

the trial court deleting extraneous matters, and issuing protective orders 

where necessary. (Emphasis added). 

Greer at 150-151. “Determining whether a particularized need exists is a matter within the 

trial court's discretion.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 

596, ¶ 41, citing Greer at paragraph one of the syllabus. 

{¶8} The “particularized need” test as formulated in Laskey, infra, Patterson, infra, 
Gallia App. No. 14CA9 4 

and Greer, supra, all involve motions made to the trial court before or during trial. See 

State v. Laskey, 21 Ohio St.2d 187, 257 N.E.2d 65 (1970)(motion made prior to trial to 

assist with preparation); State v. Patterson, 28 Ohio St.2d 181, 277 N.E.2d 201 

(1971)(motion made prior to trial as part of discovery). Here, Owens is seeking disclosure 

of grand jury proceedings from the appellate court after trial for purposes of more 

effectively advocating his appeal. Thus, we must determine if the “particularized need” test 

used by trial courts to determine whether to disclosure grand jury matters before or during 

trial is the standard applicable to petitions made in other courts for disclosures post-trial. 

{¶9} In Petition for Disclosure of Evidence Presented to Franklin Cty. Grand 

Juries in 1970, 63 Ohio St.2d 212, 218, 407 N.E.2d 513 (1980), the Court held that 

disclosures of grand jury matters can be disclosed in both civil and criminal actions. “Such 

disclosure can be ordered only after the court carefully weighs the need to maintain the 

secrecy of the grand jury proceedings against petitioner’s need for the information and 

determines that justice can only be done if disclosure is made.” Id. Thus, the particularized 

need test applies both to petitions for grand jury materials made before or during the 

criminal trial and to petitions made in other criminal or civil proceedings: “In the case at bar 

* * * if a sufficient showing of need was made, some of their [grand jury] testimony could 

be disclosed without eroding the grand jury system.” Id. at 220; see also State v. Greer, 66 

Ohio St.2d 139, 148, 420 N.E.2d 982 (“In [Petition for Disclosure], this court again referred 

to the particularized need test in the allowance of grand jury testimony to be used in a civil 

trial, upon a satisfactory showing * * * that the petitioner’s or movant’s need for the 

information outweighs the need to maintain the secrecy of the grand jury proceedings.”); 

Wurth v. Emro Marketing Co., 125 Ohio App.3d 494, 499, 708 N.E.2d 1057 (6th Dist. 

1998)(“in Petition for Disclosure, supra, the court determined that the particularized need 
Gallia App. No. 14CA9 5 

test was equally applicable to civil cases in which a movant sought access to a witness's 

grand jury testimony in a prior criminal matter”); Craig v. Lima City Schools Bd. of 

Edn.,384 F. Supp.2d 1136 (N.D. Ohio 2005)(under Ohio law, “the ‘particularized needs’ 

test applies regardless of the type of case involved”); contra State v. Webb, 2nd Dist. App. 

No. 2005CA52, 2006-Ohio-1113, ¶ 27, 33 (Grady, P.J., dissenting and arguing that 

instead of applying a particularized needs test, Petition for Disclosure established a 

“broader and more general standard of what ‘justice requires’” where a petition for grand 

jury materials is made in a different forum and finding that the court “should have applied 

the broader ends of ‘justice’ standard”). Thus, we apply the particularized needs test to 

Owens’s request. 

II. 

A. Allegations of Unauthorized Persons in Violation of Crim.R. 6(D) and R.C. 2939.10 

{¶10} Owens argues that he needs access to the grand jury transcript because he 

believes persons other than those permitted under Crim.R. 6(D) and R.C. 2939.10 were in 

the presence of the grand jury. Specifically, he claims that a representative of the Ohio 

Attorney General’s Office called, swore and examined witnesses, advised the grand jurors, 

and advocated for the return of an indictment all when she was not authorized to do any of 

these things. 

{¶11} Ohio courts give strict interpretation to R.C. 2939.10 and Crim.R. 6(D) and 

find error where a trial court permits persons not explicitly authorized by the statute or rule 

to be present. 

Ohio courts have applied a strict reading of R.C. 2939.10 and Ohio R. 

Crim. P. 6(D) when addressing challenges to the validity of indictments 

based on the presence of unauthorized persons in the grand jury room 

during grand jury proceedings. In order to protect the “very secretive nature” 

of grand jury proceedings, “[t]he information so given to the grand jury may 
Gallia App. No. 14CA9 6 

not be revealed to any person other than the grand jury, and others who by 

law are permitted to listen to grand jury testimony.”In re Klausmeyer, 24 Ohio 

St. 2d 143, 146, 265 N.E.2d 275 (1970) (emphasis added). Ohio courts 

consistently have found that a person not explicitly authorized by rule or 

statute may not be present while the grand jury is in session. E.g., State v. 

Jewell, No. CA448, 1990 Ohio App. LEXIS 3859, at *24 (Vinton County Aug. 

22, 1990) (erroneous for trial court to permit a children's services caseworker 

to be present while minor child testified); State v. Ogletree, No. 9768, 1987 

Ohio App. LEXIS 8303, at *6 (Montgomery County Aug. 14, 1987) (“accused 

does not have the right to appear before or attend grand jury proceedings, 

either personally or by counsel”). 

2011 Ohio Atty.Gen.Ops.No. 2011-004, *2. The presence of an unauthorized person 

during grand jury proceedings may be sufficient to set aside an indictment where prejudice 

to the accused is shown. Id. at *4; State v. Stulls, 78 Ohio App.3d 68, 72, 603 N.E.2d 1123 

(6th Dist. 1991). In Stulls, a special investigator for the prosecutor’s office who specialized 

in preparing and investigating cases involving alleged sexual offenses against children 

was present in the grand jury room while testimony was being taken. The appellate court 

reviewed the investigator’s statements and actions and found that her functions were very 

limited and she did not assist the prosecutor in the presentation of his case, thus there 

was no prejudice to the accused and the trial court should not have dismissed the 

indictment: 

The facts before this court indicate only that, in this hearing before the grand 

jury, Linda Connors operated a tape-recording device, kept track of 

witnesses who appeared before the grand jury, and filled out forms to assist 

the prosecutor in responding to discovery. While she was placed in a 

position where she potentially could have responded to questions from 

Meyers, thus assisting him in the presentation of his case, she did not 

respond in a way that was prejudicial to appellee and, thus, in this instance, 

no error occurred. We do not find that the functions she performed, in 

addition to being an operator of a tape-recording device, were in any way 

prejudicial to the appellee. 

State v. Stull, 78 Ohio App. 3d 68, 72, 603 N.E.2d 1123, 1126 (6th Dist. 1991). 

{¶12} Here, Owens argues that the trial court judge stated at arraignment that the 
Gallia App. No. 14CA9 7 

case was presented to the grand jury by a representative of the Ohio Attorney General’s 

Office and Owens contends that this representative’s presence was without appointment 

or authorization. As a result, he argues that the representative was an unauthorized 

person under R.C. 2939.10 and Crim.R. 6(D). Violations of Crim.R. 6(D), while not 

requiring the “automatic reversal of a subsequent conviction regardless of the lack of 

prejudice,” nevertheless are subject to a review to determine if it affected a substantial 

right under Crim.R. 52(A). U.S. v. Mechanik, 475 U.S. 66, 71, 106 S.Ct. 938, 89 L.Ed.2d 

50 (1986) (discussing the federal version of Ohio’s Crim.R. 6 and rejecting the appellate 

court’s decision that a violation of Fed.R.Crim.P. 6(d) requires an automatic reversal of the 

conviction without determining if prejudice resulted); State v. Jewell, 4th Dist. Vinton App. 

No. CA448, 1990 WL 127049 (Aug. 22, 1990) (any error in the presence of unauthorized 

caseworker at the grand jury proceedings was harmless under Crim.R. 52(A)). Accordingly 

we find that Owens has stated a particularized need for access to portions of the grand 

jury transcript that show the presence, statements, and functions of this alleged 

unauthorized person. Because we find Owens has shown a particularized need for the 

grand jury transcript, we must weigh the need to maintain the secrecy of the grand jury 

proceedings against Owen’s need for the information. 

{¶13} We review the factors enumerated in Petition for Disclosure as quoted from 

U.S. v. Rose, 215 F.2d 617, 628-629 (3rd Cir. 1954): 

“(1) To 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; (5) to protect innocent 
Gallia App. No. 14CA9 8 

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.” 

Petition for Disclosure, at 219. Additionally, we recognize that an interest in secrecy still 

exists even though the grand jury has ended its activities: 

For in considering the effects of disclosure on grand jury proceedings, the 

courts must consider not only the immediate effects upon a particular grand 

jury, but also the possible effect upon the functioning of future grand juries. 

Persons called upon to testify will consider the likelihood that their testimony 

may one day be disclosed to outside parties. Fear of future retribution or 

social stigma may act as powerful deterrents to those who would come 

forward and aid the grand jury in the performance of its duties. Concern as to 

the future consequences of frank and full testimony is heightened where the 

witness is an employee of a company under investigation. Thus, the interests 

in grand jury secrecy, although reduced, are not eliminated merely because 

the grand jury has ended its activities. (Emphasis added). 

 

Id. at 217, quoting Douglas Oil Co. v. Petro Stops Northwest, 441 U.S. 211, 222-223, 9 

S.Ct. 1667, 60 L.E.2d 156 (1979). And, we must account for our ability to place protective 

limitations on any disclosure ordered to shield those who volunteered information. Id. at 

219. 

{¶14} Based on all of these considerations, we find that the interest in secrecy is 

not greater than the need for disclosure. Of the five Rose factors, concerns about escape, 

witness tampering or importuning of grand jurors, and protection of the innocent accused 

are not present here. However, concerns with freedom in grand jury deliberations and the 

encouragement of free and untrammeled disclosures by persons with information are 

always present because, as stated in Douglas Oil, supra, “Persons called upon to testify 

will consider the likelihood that their testimony may one day be disclosed to outside 

parties. Fear of future retribution or social stigma may act as powerful deterrents to those 

who would come forward and aid the grand jury in the performance of its duties.” 
Gallia App. No. 14CA9 9 

Nevertheless, we can eliminate this concern and still address Owens’s needs by providing 

only those portions of the grand jury transcript that show the presence, statements, and 

functions of persons presenting the case to the grand jury, other than the witnesses under 

examination. If the identity and testimony of witnesses are redacted in the portions of the 

grand jury transcript disclosed to Owens, he will still be able to determine the identities of 

individuals who presented the case before the grand jury, argue whether these individuals 

were unauthorized, and argue whether their unauthorized presence was prejudicial to him. 

 Persons who made open, candid, and untrammeled disclosures in this case will not “fear 

future retribution or social stigma that may act as powerful deterrents” because their 

testimony will remain secret. 

B. Grand Jury Testimony of Child Victim 

{¶15} Owens argues that he is entitled to review the grand jury transcript because 

he believes that the child victim must have given inconsistent testimony to the grand jury. 

He claims that he is entitled to know what testimony was given to the grand jury 

concerning count three of the indictment. He argues that count three of the indictment 

charged that he forced the child victim to touch his erogenous zone, but that the child 

victim’s testimony at trial did not support this charge. Owens argues that his defense at 

trial focused on the child victim’s inherent inconsistencies and any additional 

inconsistencies that might have occurred in her grand jury testimony are crucial to his 

defense. And, he argues that any inconsistencies that might exist would call into question 

the trial court’s determination that the victim’s statements corroborate each other. 

{¶16} Owens’s speculation concerning possible inconsistencies in the child victim’s 

grand jury testimony does not state a particularized need. State v. Mack, 73 Ohio St.3d 

502, 508, 1995-Ohio-273, 65 N.E.2d 329 (1995): 
Gallia App. No. 14CA9 10 

When a defendant “speculates that the grand jury testimony might 

have contained material evidence or might have aided his cross-examination 

* * * by revealing contradictions,” the trial court does not abuse its discretion 

by finding the defendant had not shown a particularized need. State v. Webb

(1994), 70 Ohio St.3d 325, 337, 638 N.E.2d 1023, 1034. 

Because we find that Owens does not state a particularized need to review the grand jury 

transcript for possible inconsistencies in the child victim’s testimony, we will not order the 

disclosure of the grand jury transcripts on this ground. 

III. 

{¶17} In view of the trial court’s determination that it cannot adequately assess 

Owens’s need for a grand jury transcript in the context of effective appellate advocacy, we 

may now properly address the merits of Owens’s motion for disclosure of grand jury 

materials. We find that he has shown a particularized need to review the grand jury 

transcript as it relates to his argument that there was an unauthorized person in the 

presence of the grand jury in violation of Crim. R. 6(E) and R.C. 2939.10. The interest in 

grand jury secrecy does not outweigh his need for access as long as we place protective 

limitations on the disclosure. We will conduct an in camera review of the grand jury 

transcript and provide access to portions of the grand jury transcript that show the 

presence, statements, and functions of persons presenting the case to the grand jury, 

other than the witnesses under examination. The court will issue a notice to the parties 

when the redacted portions of the grand jury transcript are available for review. However, 

Owens has failed to show a particularized need for the grand jury transcript as it relates to 

his argument concerning possible inconsistencies in the child victim’s testimony and his 

access is denied on this ground. Therefore, we GRANT IN PART and DENY IN PART,

Owens’s motion. 

{¶18} The court reporter is ORDERED to send this Court the grand jury transcript 
Gallia App. No. 14CA9 11 

under seal. We will then review the transcript in camera and redact portions in accordance 

with this entry. We then will make arrangements with counsel to review the transcript in 

accordance with this entry. 

{¶19} The clerk of courts shall serve a copy of this order on all counsel of record 

and upon the court reporter at their last known addresses by ordinary mail. 

MOTION GRANTED IN PART AND DENIED IN PART. IT IS SO ORDERED. 

Harsha, J. & Abele, J.: Concur. 

 FOR THE COURT 

 ________________________________ 

 Matthew W. McFarland 

 Administrative Judge