2019 Ohio 4914
Ohio Ct. App.2019Background:
- On Jan. 6, 2018 police responded to a reported civil protection order (CPO) violation; victim Henry Onions and a witness said Derek Myers had been following them.
- Myers was located, arrested, and taken to jail the same night; Onions signed a complaint that tracked the protection-order statute and swore it before a notary.
- The complaint/summons were served on Myers Jan. 6 and filed in municipal court Jan. 8, 2018.
- Myers moved to dismiss under Crim.R. 12(C), arguing the private-citizen filing failed to comply with R.C. 2935.09(D) (no reviewing-official review) and lacked factual allegations of probable cause.
- The municipal court denied the motion; Myers pleaded no contest, was convicted and sentenced, and appealed challenging the denial of his motion to dismiss.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a private-citizen complaint complied with R.C. 2935.09(D) (review by a reviewing official before prosecution) | Complaint was valid: it tracked statutory language, was sworn, and invoked the court's jurisdiction | Onions (private citizen) did not submit an affidavit to a reviewing official as required by R.C. 2935.09(D); institution of prosecution was defective | Court: Onions failed to use a reviewing official; defect is nonjurisdictional but waivable only if not timely raised — here it was timely raised under Crim.R. 12(C); trial court erred; conviction vacated and charge dismissed |
| Whether the complaint contained sufficient factual allegations to permit a probable-cause determination | The statutory-language complaint is sufficient to state essential facts (tracking statute is generally adequate) | Complaint merely recited statutory elements and lacked factual detail supporting probable cause | Court noted tracking the statute can suffice, but did not need to resolve sufficiency because the R.C. 2935.09(D) defect was dispositive |
| Whether a failure to obtain a warrant after arrest required dismissal (preservation) | N/A (issue not raised below) | Myers argued on appeal that no warrant was sought or obtained after arrest | Court refused to consider it because Myers did not raise that claim in the trial court (issues not raised below are forfeited) |
Key Cases Cited
- State v. Childs, 88 Ohio St.3d 194 (2000) (a charging instrument may satisfy requirements by tracking statutory language)
- State v. Murphy, 65 Ohio St.3d 554 (1992) (statutory-language pleading sufficiency)
- State v. Mbodji, 129 Ohio St.3d 325 (2011) (private-citizen complaints not reviewed by a reviewing official can be attacked via Crim.R. 12(C))
- State ex rel. Evans v. Columbus Dept. of Law, 83 Ohio St.3d 174 (1998) (R.C. 2935.09 does not mandate prosecution of all offenses charged by affidavit)
- State ex rel. Strothers v. Turner, 79 Ohio St.3d 272 (1997) (R.C. 2935.09 must be read with R.C. 2935.10 regarding procedure following affidavit filing)
- State v. Burdine-Justice, 125 Ohio App.3d 707 (12th Dist. 1998) (a charging instrument is sufficient if it tracks statute)