In re Accusation by Affidavit to Cause Arrest or Prosecution Pursuant to R.C. 2935.09 & 2935.10

[Cite as In re Accusation by Affidavit to Cause Arrest or Prosecution Pursuant to R.C. 2935.09 & 2935.10, 2023-
Ohio-1429.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
IN RE: ACCUSATION BY AFFIDAVIT C.A. No. 22CA011884
TO CAUSE ARREST OR PROSECUTION
PURSUANT TO R.C.2935.09 AND
2935.10
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
CASE No. MISC 2022
DECISION AND JOURNAL ENTRY
Dated: May 1, 2023
STEVENSON, Judge.
{¶1} Plaintiff-Appellant, Matthew Thompson, appeals from the judgment of the Lorain
County Court of Common Pleas. This Court affirms.
I.
{¶2} Mr. Thompson filed a private citizen affidavit in the trial court pursuant to R.C.
2935.09, et seq. He sought to cause the arrest and prosecution of his wife on felony charges. His
affidavit described their ongoing, contentious divorce proceedings and custody battle for their son.
{¶3} The trial court reviewed Mr. Thompson’s affidavit and issued a judgment entry.
The court declined to issue a warrant for the wife’s arrest. Pursuant to statute, the court referred
the matter to the Lorain County Prosecutor’s Office for further investigation.
{¶4} Mr. Thompson now appeals the trial court’s judgment and raises one assignment of
error for review.
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II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY NOT RECOGNIZING THE “POWER OF
ARREST VESTED BY LAW” IN PRIVATE PERSONS, WHICH INCLUDES
THE RIGHT TO CAUSE PROSECUTION FOR FELONIES, MISDEMEANORS
AND OTHER CRIMES AND THE RIGHT TO CAUSE ARREST FOR
FELONIES. THUS, THE COURT MISAPPLIED THE PROCEDURES SET
FORTH IN R.C. §2935.09 AND §2935.10 AS AN EXERCISE OF
DISCRETIONARY JUDICIAL AUTHORITY RATHER THAN A DUTY TO
CARRY OUT THE REQUIRED MINISTERIAL ACTS SET FORTH THEREIN.
{¶5} In his sole assignment of error, Mr. Thompson argues the trial court erred when it
refused to issue a warrant for his wife’s arrest. He argues the court misapplied R.C. 2935.09, et
seq., in that it failed to recognize his right to have his wife arrested and prosecuted. Upon review,
we reject Mr. Thompson’s argument.
{¶6} This Court generally “applies an abuse of discretion standard to ‘a judge’s decision
not to issue a warrant based on an accusation by affidavit filed pursuant to R.C. 2935.09 and
2935.10.’” Helms v. Diefendorf, 9th Dist. Summit No. 30064, 2023-Ohio-911, ¶ 7, quoting
Hillman v. O'Shaughnessy, 10th Dist. Franklin No. 16AP-571, 2017-Ohio-489, ¶ 7. “When the
question presented on appeal is strictly one of law, [however,] this Court applies a de novo standard
of review.” State v. Prade, 9th Dist. Summit No. 28193, 2018-Ohio-3551, ¶ 7. “A de novo review
requires an independent review of the trial court’s decision without any deference to [its]
determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
{¶7} “R.C. 2935.09(D) authorizes a private citizen ‘who seeks to cause an arrest or
prosecution’ to ‘file an affidavit charging the offense committed with a reviewing official for the
purpose of review to determine if a complaint should be filed by the prosecuting attorney.’” State
ex rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, ¶ 12, quoting R.C. 2935.09(D).
The statute “does not require prosecution of all offenses alleged in a citizen affidavit.” State ex
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rel. Whittaker v. Lucas County Prosecutor’s Office, 164 Ohio St.3d 151, 2021-Ohio-1241, ¶ 11.
“R.C. 2935.09 must be read in pari materia with R.C. 2935.10, which prescribes the procedure to
be followed once a citizen files [an affidavit].” State ex rel. Bunting v. Styer, 147 Ohio St.3d 462,
2016-Ohio-5781, ¶ 15.
If the citizen affidavit charges a felony, R.C. 2935.10 directs a judge who is
reviewing the affidavit to do one of two things: (1) “issue a warrant for the arrest
of the person charged in the affidavit” or (2) “refer the matter to the prosecuting
attorney * * * for investigation prior to the issuance of [a] warrant” if the judge
“has reason to believe that [the affidavit] was not filed in good faith, or the claim is
not meritorious.”
State ex rel. Brown at ¶ 12, quoting R.C. 2935.10(A). “The decision whether to pursue criminal
charges is ultimately vested in the state, not with a private citizen.” State ex rel. Whittaker at ¶ 11.
{¶8} After Mr. Thompson filed his private citizen affidavit, the trial court considered his
affidavit as a “reviewing official.” See R.C. 2935.09(A). The court chose not to issue a warrant
for the arrest of Mr. Thompson’s wife. Instead, upon review of the affidavit, statutes, and relevant
case law, the court referred the matter to the Lorain County Prosecutor’s Office for further
investigation. See State ex rel. Brown at ¶ 12, quoting R.C. 2935.10(A).
{¶9} Mr. Thompson argues the trial court erred when it failed to issue a warrant for his
wife’s arrest. According to Mr. Thompson, a citizen who reasonably believes a felony has been
committed has both a common law and statutory right to arrest another citizen for that crime. He
points to the plain language of R.C. 2935.04 and 2935.25 as well as a significant number of cases
and statutes predating 2006. He argues the trial court offended his right of arrest when it refused
to proceed with the prosecution of his wife. According to Mr. Thompson, once a citizen files a
complying affidavit under R.C. 2935.09, a prosecution must proceed either upon that affidavit or
a complaint prepared by a prosecuting attorney. Because the issue he raises on appeal is strictly a
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question of law, this Court applies a de novo standard and limits its review to that singular issue.
See Prade, 2018-Ohio-3551, at ¶ 7.
{¶10} Mr. Thompson spends much of his argument discussing a private citizen’s right to
conduct a felony arrest. See R.C. 2935.04. Yet, the issue on appeal is not whether Mr. Thompson
had the authority to conduct a warrantless arrest of his wife. Mr. Thompson filed a private citizen
affidavit with the trial court. In doing so, he specifically invoked the citizen affidavit procedure
outlined in R.C. 2935.09 and 2935.10. The judgment entry from which he has appealed only
concerns the trial court’s application of those statutes. Arguments regarding warrantless arrests or
the right of a citizen to conduct an arrest fall outside the scope of this appeal, and this Court
declines to address them. See, e.g., State v. Hamilton, 9th Dist. Lorain No. 17CA011143, 2018-
Ohio-2551, ¶ 10.
{¶11} Before 2006, R.C. 2935.09 provided, in relevant part, as follows:
[I]n order to cause the arrest or prosecution of a person charged with committing
an offense in this state, * * * a private citizen having knowledge of the facts, shall
file with the judge or clerk of a court of record, or with a magistrate, an affidavit
charging the offense committed, or shall file such affidavit with the prosecuting
attorney * * *, for the purpose of having a complaint filed by such prosecuting or
other authorized attorney.
The legislature amended the statute in 2006. See 2006 Am.H.B. No. 214. The purpose of the
amendment was “to require that an appropriate official review affidavits filed by private persons
to determine if a complaint should be filed.” Id. Thus, in amending R.C. 2935.09, the General
Assembly sought to “limit[] a private citizen’s ability to cause the arrest or prosecution of another”
by requiring citizen affidavits to “be reviewed by judges, magistrates, or prosecutors * * * before
any arrest or prosecution is instituted.” State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶
7. The plain language of the amended statute makes clear that the filing of a private citizen’s
affidavit does not automatically trigger the filing of a criminal complaint. See R.C. 2935.09(D)
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(reviewing official will consider citizen affidavit and determine “if” a complaint will be filed).
The Supreme Court also has held that a private citizen does not have a right to prosecution and
that the ultimate decision whether to prosecute lies with the State. State ex rel. Whittaker, 164
Ohio St.3d 151, 2021-Ohio-1241, at ¶ 11.
{¶12} To the extent Mr. Thompson argues that the filing of a citizen affidavit
automatically triggers a criminal prosecution, the plain language of R.C. 2935.09, et seq., and the
case law interpreting that statutory scheme refute his argument. The record reflects the trial court
considered Mr. Thompson’s affidavit and applied the plain language of R.C. 2935.09, et seq.
Following its review, the trial court referred the matter to the prosecutor’s office for further
investigation. R.C. 2935.10(A). Mr. Thompson has not shown the trial court committed a legal
error by applying R.C. 2935.09, et seq., and referring his affidavit to the prosecutor’s office for
review. Accordingly, his assignment of error is overruled.
III.
{¶13} Mr. Thompson’s assignment of error is overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
FLAGG LANZINGER, J.
CONCUR.
APPEARANCES:
MATTHEW A. THOMPSON, pro se, Appellant.
J.D. TOMLINSON, Prosecuting Attorney and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.