In re Charging Affidavit of Demis
2013 Ohio 5520
Ohio Ct. App.2013Background
- In Dec. 2012 Judge Forchione ordered a $5,000 fine in State v. Studer to be forwarded to victims of the Newtown, CT tragedy.
- A Feb. 1, 2013 civil action in Stark County contended the $5,000 belonged to the Stark County Treasury and could not be redirected.
- Judge Forchione requested return of the $5,000 on Feb. 4, and the funds were returned to the Stark County Clerk on Feb. 6.
- On Feb. 28, 2013 Louis Demis filed a citizen accusation/affidavit in Canton Municipal Court seeking felony Theft in Office charges (R.C. §2921.41) against Judge Forchione.
- The affidavit was referred to a special prosecutor for investigation under R.C. §§2935.09–.10; a probable-cause hearing was set for Apr. 23, 2013.
- Demis failed to appear at the probable-cause hearing; no testimony was offered, the prosecutor recommended no charges, and the court found the affidavit not filed in good faith and the claim not meritorious, declining to find probable cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the municipal court erred by finding no probable cause to pursue felony Theft in Office based on Demis’s citizen affidavit | Demis argued the court should have found probable cause to charge Forchione for unlawfully exerting control over county property | Court/prosecutor argued the affidavit lacked supporting evidence, was not filed in good faith, and claims were not meritorious; prosecutor recommended no charges | Court affirmed: no abuse of discretion in finding no probable cause and referring affidavit to prosecutor; proceedings presumed regular absent transcript |
Key Cases Cited
- State ex rel. Boylen v. Harmon, 839 N.E.2d 934 (Ohio 2006) (explains interplay of R.C. 2935.09 and 2935.10 and when affidavits must be referred or warrants issued)
- Blakemore v. Blakemore, 450 N.E.2d 1140 (Ohio 1983) (abuse-of-discretion standard defined)
- Knapp v. Edwards Laboratories, 400 N.E.2d 384 (Ohio 1980) (presumption of regularity when trial transcript is not provided)
- State ex rel. Evans v. Columbus Dept. of Law, 699 N.E.2d 60 (Ohio 1998) (review of prosecutor’s decision re: affidavit lack-of-merit under abuse-of-discretion standard)