¶1 dissenting.
¶2 Being unable to concur in the majority opinion, I must respectfully dissent, since the second assignment of error should be sustained.
¶3 The indictment in this case contained seven counts. The first three counts of the indictment were against Dr. Brown (“the defendant”) personally, and counts four, five, six and seven were against the defendant’s corporation. Counts one, two, four, five and six of the indictment alleged Medicaid fraud, a violation of R.C. 2913.40. Counts three and seven alleged theft by deception, a violation of R.C. 2913.02(A)(3).
¶4 After the prosecutor presented its evidence at trial, the trial court dismissed counts two and six pursuant to a Crim.R. 29(A) motion. 1 The jury returned a verdict of not guilty as to counts one and five. Of the remaining counts, the jury found defendant guilty of count three and the defendant’s corporation guilty of counts four and seven. The trial court granted a judgment of acquittal to defendant’s corporation on count four. Thus, only two counts remain and are the subject of this appeal.
¶5 The second assignment of error is determinative. By the second assignment of error, defendant contends that the trial court erred in denying defendant’s post-trial motion for judgment of acquittal on count three of the indictment. Defendant filed a post-trial motion for judgment of acquittal or, in the alternative, for a new trial. The basis for the motion alleged that defendant was not properly charged by grand jury indictment with respect to count three. The assignment of error arises from the prosecutor’s actions concerning the bills of particular. Pursuant to a timely motion, the prosecutor filed a bill of particulars on September 16, 1992. Nearly four months later, on January 5, 1993, an amended bill of particulars was filed. The prosecutor then filed a “supplement” to the amended bill of particulars on January 28, 1993. Defendant argues that by *617 amending the bill of particulars, the prosecutor changed the nature of the offense for which he was indicted.
¶6 The indictment in count three charged as follows:
“Do find and present that on or about January 1, 1989, to September 5, 1991, Clyde D. Brown, M.D., within Franklin County, Ohio, did, with purpose to deprive the owner, the State of Ohio, of property or services, to wit: monies, knowingly obtain or exert control over said property or services by deception, said property or services being one hundred thousand dollars ($100,000.00), or more, in violation of Ohio Revised Code Section 2913.02(A)(3) a felony of the second degree.”
¶7 The original bill of particulars filed in this case stated as to count three of the indictment:
“That on or about January 1, 1989 to September 5, 1991, Clyde D. Brown, M.D., within Franklin County, Ohio, did, with purpose to deprive the owner, the State of Ohio, by and through the Ohio Department of Human Services, Medicaid Division, of property or services, to wit: monies, knowingly obtain or exert control over said monies by deception. The deception consists of billings to the Ohio Department of Human Services, Medicaid Program for laboratory tests for metabolic profiles, heptatic [sic ] profiles, renal profiles and arthritis profiles as if those tests were performed as individual laboratory procedures when all four procedures were performed on an automated multi-channel test machine in one procedure which performed all four profiles simultaneously; and billing for CPT code 00099, miscellaneous medical supply, when he was not providing said service to, or on behalf of the recipient for whose account he billed. The value of said property to wit: monies is two hundred thirty-one thousand, nine hundred sixty-four dollars and twenty eight cents ($231,964.28). This is in violation of Ohio Revised Code Section 2913.02(A)(3) a felony of the second degree.”
¶8 The amended bill of particulars changed the statement of count three of the indictment to the following:
“That on or about January 1, 1989 to September 5, 1991, Clyde D. Brown, M.D., within Franklin County, Ohio, did, with purpose to deprive the owner, the State of Ohio, by and through the Ohio Department of Human Services, Medicaid Division, of property or services, to wit: monies, knowingly obtain or exert control over said monies by deception. The deception consists of billings to the Ohio Department of Human Services, Medicaid Program for laboratory tests for metabolic profiles, heptatic [sic] profiles, renal profiles and arthritis profiles when these profiles were not performed, and billing for Procedure Code 00099, miscellaneous medical supply, when he was not providing said service to, or on behalf of the recipient for whose account he billed; and billing for Procedure *618 Code 00336, shipping and mailing, when he was not providing said service to, or on behalf of the recipient for whose account he billed. The specific conduct is detailed in Attachments A and B. The value of said property to wit: monies, is two hundred fifty-five thousand three hundred seventy-seven dollars and forty nine cents ($255,377.49). This is in violation of Ohio Revised Code Section 2913.02(A)(3), a felony of the second degree.”
¶9 The supplement to the amended bill of particulars stated:
“The State hereby supplements its Amended Bill of Particulars, filed on January 5, 1993, as follows:
“As to Counts II, III, VI, and VII, where laboratory tests are referenced, which specific conduct is detailed in Attachment B of the Amended Bill of Particulars, the State will contend that said laboratory tests performed were services of a preventive nature. This contention is in addition to all other contentions contained in the Amended Bill of Particulars.”
¶10 The jury instruction given by the trial court as to count three was as follows:
“Now, let me go to count 2 [original count three]. In count 2, Dr. Clyde Brown is also charged with theft by deception or I should say he is charged with theft by deception. Before you can find him guilty, you must find beyond a reasonable doubt that during the period January 1, 1989 to September 5, 1991, and in Franklin County, Ohio, Clyde D. Brown knowingly obtained or exerted control over monies belonging to the State of Ohio by deception. The deception is alleged to consist of billings to Ohio’s Medical Assistance Program, Medicaid, for procedure code 00099, when he was not providing that service to the medicaid recipients whose accounts were billed; and billing for procedure code 00336 when he was not providing said services to or on behalf of the recipients whose accounts were billed.
“I’ll define deception: Deception means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission, which creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.
U …
“Let me define knowingly. In counts 1 and 2 [original counts one and three], Dr. Brown is charged with offenses that each require proof that he acted knowingly. A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or he is aware that his conduct will probably be of a certain nature. A person has knowledge of circumstances when he’s aware that such circumstances probably exist.
*619 “Evidence of mistake, accident, lack of information, or other innocent reason may negate the existence — may negate the existence of knowledge.
“Since you cannot look into the mind of another, knowledge is determined from all the facts and circumstances in evidence.
“You will determine from these facts and circumstances whether there existed at the time in the mind of Clyde D. Brown an awareness of the probability that the claims submitted by Clyde D. Brown, M.D. and Associates, Inc. to Ohio’s Medical Assistance Program, Medicaid, for procedure code 00336 were false or misleading, and whether he acted knowingly in obtaining or exerting control over monies belonging to the State of Ohio by deception for billings for procedure code 00099 and procedure code 00336.”
¶11 The right of an accused to be informed of the charges against him arises under Section 10, Article I of the Ohio Constitution, which provides in pertinent part:
“ … In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof …
¶12 To implement this right, an indictment may satisfy these requirements. However, pursuant to R.C. 2941.05, an indictment need not specify the specific conduct of a defendant which is relied upon to charge the offense. R.C. 2941.05 provides:
“In an indictment or information charging an offense, each count shall contain, and is sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the section of the Revised Code describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged.”
¶13 Therefore, an indictment may satisfy the constitutional requirements without being specific. R.C. 2941.07 and Crim.R. 7 provide for a bill of particulars when an indictment does not satisfy the specificity requirements.
¶14 The Ohio Supreme Court has stated in State v. Fowler (1963), 174 Ohio St. 362, 364, 22 O.O.2d 416, 417, 189 N.E.2d 133, 134, per curiam, that the purpose of the bill of particulars “is to inform an accused of the exact nature of the charges against him so that he can prepare his defense thereto.” That court also stated:
“The right of an accused to be informed of the exact nature of the offense with which he is charged is inherent in our laws and applies equally to cases where one is charged with a misdemeanor or a felony; the basic right is the same in either *620 instance and an accused must be explicitly informed of the offense with which he is charged so that he has an adequate opportunity to prepare his defense.” (Emphasis added.) Fowler, op. cit.
¶15 Crim.R. 7(E) defines a “bill of particulars” by stating that “the prosecuting attorney shall furnish the defendant with a bill of particulars setting up specifically the nature of the offense charged and of the conduct of defendant alleged to constitute the offense.” (Emphasis added.) Crim.R. 7 also permits a bill of particulars to be amended, but Crim.R. 7(D) prohibits amendments that change the name or identity of the crime charged as follows:
“The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence; provided no change is made in the name or identity of the crime charged.” (Emphasis added.)
¶16 Additionally, Crim.R. 7(E) permits amendments “at any time subject to such conditions as justice requires.” Therefore, amendments cannot be made which violate conditions “as justice requires.”
¶17 In this case, the amendments made to the bill of particulars changed the identity of the crime charged because they changed the crime which was charged. The original bill of particulars specified in count three that the Ohio Department of Human Services, Medicaid Division, was improperly billed for laboratory tests for metabolic profiles, hepatic profiles, renal profiles and arthritis profiles as if they were performed as individual laboratory procedures when all four were performed in one procedure simultaneously, and also alleged billings for miscellaneous medical supplies under billing code 00099. However, the amended bill of particulars alleged that the laboratory tests were not even performed and added billing code 00336 as an additional basis for culpable conduct. The supplement to the amended bill of particulars added that laboratory tests performed were of a “preventive” nature. These changes clearly changed the nature or identity of the offense, since a bill of particulars must be specific and exact as to both the nature of the offense and the conduct of the defendant alleged to constitute such offense.
¶18 Under the original bill of particulars, a defense to the charge could be that no testing was performed at all because it charges that defendant performed four tests at the same time by a single procedure and was entitled to only one charge but billed the four separately as if individually performed. However, the amended bill of particulars stated that defendant billed for tests when they were not in fact conducted. The allegations of the amended bill of particulars would constitute a complete defense to the original bill of particulars since the elements of that defense constitute what the prosecution contends is the charge under the amended bill of particulars. Additionally, the supplement to the amended bill of *621 particulars contended, in addition to the other contentions in the amended bill of particulars, that those tests which were performed were of a “preventive” nature. If no tests were performed (as alleged in the amended bill), they could not be of a preventive nature. The offenses alleged in the original, amended and supplemental bills of particular are not the same. Both the amendment and the supplement to the bill of particulars changed the nature or identity of the offense as both are defined by the original bill of particulars.
¶19 This case is similar to State v. Lewis (1970), 21 Ohio St.2d 203, 50 O.O.2d 441, 257 N.E.2d 59, where the defendant’s culpable conduct was specified in the indictment. However, the Ohio Supreme Court found that there was insufficient evidence in the record to support a reasonable finding that the offense had occurred in either manner which had been specified in the indictment. The court held in the second paragraph of the syllabus:
¶20 “Where an indictment for a conspiracy to defraud under Section 2921.14, Revised Code, specifies the manner or manners of defrauding relied upon as the defrauding part of that conspiracy, a conviction cannot be based upon evidence only establishing a manner of defrauding other than that so specified.”
¶21 The court reversed the judgment in that case, finding the error to be prejudicial to the defendant, and stated in the third paragraph of the syllabus:
“Where an indictment under Section 2921.14, Revised Code, for conspiracy to defraud specifies the manner of defrauding relied upon as the defrauding part of that conspiracy, the proof of a manner of defrauding that is not even suggested by any allegations of the indictment or by any bill of particulars thereunder will necessarily prejudice the accused. … ”
¶22 Just as in that case, here the defendant was tried under different culpable conduct than the specific conduct which was stated in the original bill of particulars. Considering the fundamental nature of the right of an accused to know the nature of the offense charged against him, under the circumstances of this case, where the prosecutor without leave of court amended the bill of particulars to change the nature or identity of the offense more than once, the error is prejudicial. The Ohio Supreme Court has stated that “[fjailure to allow a defendant to know what was necessary for his defense was reversible error.” State v. Jester (1987) 32 Ohio St.3d 147, 149, 512 N.E.2d 962, 965, citing Folder, supra.
¶23 Appellee argues that defendant waived this defense by not raising it in a pretrial motion pursuant to Crim.R. 12. Crim.R. 12(B) provides:
“ … The following must be raised before trial:
“(1) Defenses and objections based on defects in the institution of the prosecution;
*622 “(2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding^.]” (Emphasis added.)
¶24 Crim.R. 12(G) provides that defenses are waived as follows:
“Failure by the defendant to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver.” (Emphasis added.)
¶25 However, Crim.R. 12 does not control in this situation. The error in this case does not arise from a defect in the indictment. Rather, the error in this case is based upon the bills of particulars as to which Crim.R. 12(B) does not mandate pretrial motions. Ordinarily, we must presume that the original bill of particulars filed by the prosecutor is based upon the evidence which was relied upon by the grand jury for the indictment. In this case, the error is that the defendant was indicted upon one charge and the original bill of particulars was filed to define the offense with exactitude, and then it was amended so as to change the nature and identity of the crime, causing defendant to be tried upon a completely different charge from the one for which he apparently was indicted.
¶26 The grand jury, not the prosecutor, returns the indictment based upon facts before it. There is no indication in this case that the grand jury relied upon evidence other than that stated in the original bill of particulars to return the true bill. Absent such evidence, the amended bill of particulars could not be an accurate reflection of the evidence relied upon by the grand jury to indict. The bill of particulars defined the specific nature of the offense and the conduct of defendant alleged to constitute the offense. Defendant was tried upon different culpable conduct than that in the original bill of particulars. The problem is not a defect in the indictment but, rather, an improper amendment of a bill of particulars without leave of court first obtained. Defendant was entitled to be tried upon the indictment as explained by the original bill of particulars, not upon new and different charges set forth in the amended and supplemented bills of particulars as to which there is no affirmative indication he was indicted by the grand jury.
¶27 The prosecutor attempted by affidavit to explain that the changes made were an attempt only to correct “errors” in the original bill of particulars, and, thus, did not change the nature or identity of the offense. (See affidavit attached to state’s memorandum in opposition to defendants’ motions for judgment of acquittal, for a new trial, and for in camera inspection of grand jury minutes.) However, the amendments to the bill of particulars in this ease were substantial, *623 and the prosecutor failed even to present any evidence to show that the amendment and supplement rather than the original bill of particulars were the accurate reflection of the grand jury indictments which could be disclosed by examination of grand jury minutes, which the prosecutor opposed.
¶28 A court will not presume that the prosecutor acted so improperly for some unknown reason by filing a completely inaccurate original bill of particulars as to require correction of such prosecutorial misconduct by amending the bill of particulars to change the nature of the offense and the conduct of defendant alleged to constitute the offense. Only an examination of the grand jury minutes showing that the original bill of particulars did not reflect the offense and conduct upon which the indictment was based could possibly justify such an amendment. Amendments of the bill of particulars in the manner and of the nature here made by the prosecutor could be justified, if at all, only by evidence demonstrating that the original bill of particulars reflects neither the facts presented to the grand jury nor the grand jury’s basis for returning the indictment. Here, even the prosecutor’s affidavit makes no such suggestion but merely indicates that the evidence to be presented at trial will vary from the original bill of particulars.
¶29 Although not specifically mentioned in the second assignment of error, the changes to count seven of the indictment had a similar effect.
¶30 The original bill of particulars specified that in count seven the Department of Human Services, Medicaid Division, was improperly billed for laboratory tests for metabolic profiles, hepatic profiles, renal profiles and arthritis profiles as if they were performed as individual laboratory procedures when all four were performed in one procedure simultaneously and also for improper billing under billing codes 00099 and 00336. The amended bill of particulars specified that the culpable conduct involved laboratory tests which were not performed, and billing procedures under both billing codes 00099 and 00336. However, as quoted above, the supplement to the amended bill of particulars also pertained to count seven of the indictment and added that laboratory tests performed were of a “preventive” nature.
¶31 As in count three, the amendment to the bill of particulars again contended that the laboratory tests were not conducted. The supplement to the amended bill of particulars also affected count seven in the same manner as count three— an additional contention was made that tests conducted were of a “preventive” nature. These contentions are logically inconsistent. This affected both appellants and a new trial should have been granted upon appellants’ motion in order to proceed on the charges in the indictment as defined by the original bill of particulars. Consequently, the second assignment of error is well taken and should be sustained.
¶32*624 By such disposal of the second assignment of error, the other assignments of error would be rendered moot. See App.R. 12(A).
¶33 For the foregoing reasons, the second assignment of error should be sustained, the first, third, fourth and fifth assignments of error would be rendered moot, the judgment of the Franklin County Court of Common Pleas should be reversed, and this cause should be remanded to that court for further proceedings in accordance with law and consistent with this dissenting opinion.