[This opinion has been published in Ohio Official Reports at
76 Ohio St.3d 613.]
THE STATE OF OHIO, APPELLEE, v. BUSCH, APPELLANT.
[Cite as State v. Busch, 1996-Ohio-82.]
Criminal procedure—Domestic violence complaint—Trial court has discretion to
sua sponte dismiss a criminal case over the objection of the prosecution
where the complaining witness does not wish for the case to proceed.
A trial court has the discretion to sua sponte dismiss a criminal case over the
objection of the prosecution where the complaining witness does not wish
for the case to proceed.
(Nos. 95-1683 and 95-1893—Submitted June 4, 1996—Decided October 9,1996.)
APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, Nos.
94APC11-1670 and 94APC11-1671.
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{¶ 1} This case arises out of two domestic violence complaints dealt with
jointly in the Franklin County Municipal Court. The first complaint concerned an
incident which occurred on June 14, 1994, when defendant-appellant, Warren
Busch, allegedly struck his girlfriend, Dorothy Cordiano, in the face. The second
complaint arose on July 25, 1994, when Busch allegedly dragged Cordiano down
some stairs and burned her with a cigarette. Cordiano filed both complaints on July
28, 1994, and Busch was charged with two counts of domestic violence, in
violation of R.C. 2919.25(A), and two counts of assault, in violation of R.C.
2903.13(A). All the charges were misdemeanors.
{¶ 2} About a week later, on August 5, 1994, after she had hired her own
attorney, Cordiano signed an affidavit stating that she did not want to go forward
with any criminal charges against Busch. Cordiano also stated in the affidavit that
she feared police and prosecutors would pressure her to go forward with the
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charges, and requested that the prosecutor and the detectives working the
complaints leave her alone.
{¶ 3} On September 7, 1994, Cordiano testified at a scheduled pretrial that
she still wished to have the charges dropped. The court was not persuaded to
dismiss the charges at that time, but instead ordered Busch and Cordiano to enter
counseling prior to the trial, which was scheduled for October 4, 1994.
{¶ 4} On October 4, Cordiano reiterated her desire for the charges to be
dropped, but the court rejected Busch’s motion for dismissal, and continued the
matter. Again, on October 12, 1994, Cordiano’s desire to have the charges
dismissed was discussed in court. She testified under oath that she had three
children, ages three, eighteen months, and five months. Although Busch was the
natural father of only the youngest child, Cordiano testified that Busch was more
of a father to the older children than their real father. She informed the court that
she and Busch had attended three counseling sessions in the previous a month and
a half, and that they were waiting for a call for another session. Cordiano wanted
the charges dismissed because she still desired a family relationship with Busch.
She testified that they had had a really great relationship prior to the incidents of
abuse, and noted that the abuse had occurred during a difficult time.
{¶ 5} Cordiano testified further that she did not fear that Busch would ever
assault her again, and that no one coerced her to seek the dismissal of the charges.
She stated that she had had discussions with people in the prosecutor’s office and
from the witness assistance program, and still wished to have the charges dismissed.
The court reserved ruling on the dismissal, and again continued the cases.
{¶ 6} On October 19,1994, Cordiano reiterated to the trial court her desire
to have the charges dismissed. Again, she testified that she did not fear a repeat of
Busch’s behavior, and stated that she was not being coerced into making her
decision. The state did not advocate dismissing the charges.
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{¶ 7} By entries filed on October 19, 1994, the trial court dismissed the
charges against Busch. The trial judge stated the following on the record:
“… The entry will read that the charges against you in both cases will be
dismissed at this time at the request of the prosecuting witness. The dismissal will
be over the objections of the prosecutor’s office.
“…
“… I want the record to reflect that the prosecuting witness has been
down here on a number of occasions now; she has appeared when she was
subpoenaed to be here; and on a number of occasions, she has come in stating that
this is her desire. The prosecutor’s office has made it very clear, both to the Court
and to the prosecuting witness, their position on this matter. However, these are two
adults. These parties think they can work their problems out. And this branch of
the Court doesn’t think it should stand in their way of doing that.”
{¶ 8} The trial judge went on to admonish Busch:
“However, Mr. Busch, I want you to understand that if this young lady
comes back and has to file charges against you, and there are the allegations the
next time that there were this time, with the types of pictures that were in the file
that I did get the opportunity to review, I will not agree to dismiss the charges
against you. If I am the … judge that sets bond, it’s very likely that you’ll sit in
jail until this case comes up for trial. And if I have to hear the trial, we will have a
trial the next time around. Is that clear?”
{¶ 9} The state appealed the dismissals, arguing that the trial court exceeded
its discretion to the prejudice of the prosecution by dismissing sua sponte the
charges of domestic violence and assault upon the request of a prosecuting witness
and over the objection of the prosecution. The court of appeals agreed, holding that
the trial court lacked the authority to dismiss the charges over the objection of the
prosecution.
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{¶ 10} Finding its judgment in conflict with the judgment of the Cuyahoga
County Court of Appeals in Cleveland v. Hall (Mar. 10, 1983), Cuyahoga App. No.
45179, unreported, 1983 WL 5829, the court of appeals entered an order certifying
a conflict. This cause is now before this court upon our determination that a conflict
exists. The matter is also before this court upon the allowance of a discretionary
appeal.
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Ronald J. O’Brien, City Attorney, David M. Buchman, City Prosecutor, and
Jodi M. Finch, Assistant City Prosecutor, for appellee.
Judith M. Stevenson, Franklin County Public Defender, and John W.
Keeling, Assistant Public Defender, for appellant.
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PFEIFER, J.
{¶ 11} We hold that a trial court has the discretion to sua sponte dismiss a
criminal case over the objection of the prosecution where the complaining witness
does not wish for the case to proceed.
{¶ 12} We need look no further than Crim.R. 48(B) for authority for trial
judges to dismiss criminal actions sua sponte. The rule reads:
“Dismissal by the court. If the court over objection of the state dismisses
an indictment, information, or complaint, it shall state on the record its findings of
fact and reasons for the dismissal.”
{¶ 13} Crim.R. 48(B) recognizes by implication that trial judges may sua
sponte dismiss a criminal action over the objection of the prosecution, since the rule
sets forth the trial court’s procedure for doing so. The rule does not limit the reasons
for which a trial judge might dismiss a case, and we are convinced that a judge may
dismiss a case pursuant to Crim.R. 48(B) if a dismissal serves the interests of
justice.
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{¶ 14} Trial judges are at the front lines of the administration of justice in
our judicial system, dealing with the realities and practicalities of managing a
caseload and responding to the rights and interests of the prosecution, the accused,
and victims. A court has the “inherent power to regulate the practice before it and
protect the integrity of its proceedings.” Royal Indemn. Co. v. J.C. Penney Co.
(1986), 27 Ohio St.3d 31, 33-34, 27 OBR 447, 449,
501 N.E.2d 617, 620. Trial
courts deserve the discretion to be able to craft a solution that works in a given case.
Certainly a court’s resources in a domestic violence case are better used by
encouraging a couple to receive counseling and ultimately issuing a dismissal than
by going forward with a trial and impaneling a jury in a case where the only witness
refuses to testify.
{¶ 15} We do not suggest that in every domestic violence case where the
victim refuses to testify a trial judge has the unfettered power to dismiss the case.
The seriousness of the injuries, the presence of independent witnesses, the status of
counseling efforts, whether the complainant’s refusal to testify is coerced, and
whether the defendant is a first-time offender are all factors a trial judge should
consider, and factors that a reviewing court may consider in determining whether
the trial court abused its discretion.
{¶ 16} In this case, the trial judge did not abuse his discretion in dismissing
the charges. Although Cordiano’s injuries were relatively serious, Busch had not
physically abused her before or after the incidents at issue. The record is devoid of
evidence other than Cordiano’s testimony that might prove a case against Busch.
The trial court methodically over a period of at least a month determined that
Cordiano was not being coerced and truly did not wish to testify. The court had her
August 5, 1994 affidavit to that effect. She so testified under oath in a pretrial, on
two other occasions when the trial was continued, and finally on the day when the
charges were dismissed. The trial judge made sure the couple was in counseling,
that Cordiano wanted to see the charges dropped, and that she was not being
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coerced. The trial court knew that Cordiano had spoken with prosecutors and a
representative of the prosecutor’s witness assistance program. Cordiano also
testified that she did not fear a flare-up in Busch’s behavior.
{¶ 17} An abuse of discretion implies that the trial court’s attitude, as
evidenced by its decision, was unreasonable, arbitrary, or unconscionable. State v.
Jenkins (1984), 15 Ohio St.3d 164, 222, 15 OBR 311, 361,
473 N.E. 264, 313. The
trial court in this case handled the case well. It was not until Cordiano had testified
on several occasions that the trial court finally dismissed the charges. Until that
point, the court used a possible dismissal as an incentive for the couple to continue
in counseling.
{¶ 18} In this case, the trial court used its judicial power to do its best with
a matter which no longer seemed to fit the court system. Trial judges have the
discretion to determine when the court has ceased to be useful in a given case. The
trial judge made a permissible determination here.
{¶ 19} Accordingly, we reverse the judgment of the court of appeals.
Judgment reversed.
MOYER, C.J., RESNICK and F.E. SWEENEY, JJ., concur.
STRATTON, J., concurs separately.
DOUGLAS and COOK, JJ., dissent.
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STRATTON, J., concurring.
{¶ 20} While I agree that the facts in this case justify the trial court’s
decision to dismiss on the basis of the court’s discretion, that discretion should be
cautiously exercised in domestic violence cases, in particular, when the motion is
predicated on the victims’ unwillingness to testify against their abusers.
{¶ 21} In cases of domestic abuse, victims of battering often try to escape
from their abusive partners, only to return once the immediate shock of the attack
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has receded or when the abusers “repent” and promise to change their behavior.
All too frequently, these tragedies play out in the courts, as battered victims initially
agree to testify against their abusers, only to drop the charges once the victims have
convinced themselves that the abusive behavior was a passing aberration. Often,
the victims have no income, nowhere to go, young children to consider, and may
truly love their partners and believe that the future holds hope. Sometimes, if
victims continue to press charges, they are further threatened by their abusers and
drop the charges out of fear. Both police and trial courts are frequently frustrated
by dealing initially with a distraught and injured victim who shows up weeks later
to abruptly drop all charges.
{¶ 22} In this case, the trial court exercised careful discretion, continued the
case several times to be sure the pattern did not recur and that counseling continued,
gave the victim time to think, and carefully questioned her motives in dropping the
charges. Therefore, the judge did not abuse his discretion in dismissing the charges.
{¶ 23} However, there may clearly be times that the prosecution should be
permitted to move forward despite the victims’ objections, especially when a
pattern of abuse continues and all the pressures previously mentioned weaken the
victims’ resolve to pursue their abusers, or if the victims fear even greater
retaliation if the case is pursued by the victims themselves. Society would never
tolerate such assaults against total strangers. Such conduct should not be excusable
or somehow less egregious because one is in a marriage or partnership. In these
circumstances, the court must provide the forum to call abusers to account for their
actions.
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COOK, J., dissenting.
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{¶ 24} Because a criminal case is a controversy between the defendant and
the state, a court errs in dismissing a criminal complaint over the objection of the
state, solely to accommodate the wishes of a complaining witness.
{¶ 25} Cordiano’s lack of interest in and opposition to the prosecution of
Busch are of no moment. The state of Ohio is the complaining party in this case.
Cordiano is, at most, a potential witness for the real party. Although the majority
suggests that the prosecution in this case could not proceed without Cordiano’s
testimony, we do not know that from the record on appeal. The trial judge made
no such finding. Moreover, there is no apparent reason why Cordiano could not be
compelled to testify against her boyfriend.
{¶ 26} The majority construes Crim. R. 48(B) to permit dismissal of a
criminal case whenever the “dismissal serves the interests of justice.” The
“interests of justice” in the criminal law discipline are punishment and deterrence
of criminal behavior. This may well be different from the sociological or
theological “interests of justice” that appear to have motivated the trial court here
and in turn the majority of this court. See Dayton v. Thomas (1980), 17 O.O.3d
255, 256-257. “Courts do not assume the authority of enforcing the precepts of
mere morality, nor is it their function to declare the law of social ethics.”
Id., 17
O.O.3d at 256, citing State v. Baxter (1914),
89 Ohio St. 269, 283,
104 N.E. 331,
335. The time to consider facts that occurred outside the crime is in sentencing.
Thomas, supra, 17 O.O.3d at 257.
{¶ 27} The majority concludes that since Crim. R. 48(B) does not limit the
reasons that a trial judge might dismiss a case, it thereby grants broad discretion
bounded only by serving the “interests of justice.” I respectfully disagree. Crim.
R. 48(B) is procedural, not substantive. “[T]he rule does not alter the pre-rule Ohio
practice concerning the court’s inherent power to dismiss.” State v Sutton (1979),
64 Ohio App.2d 105, 108,
18 O.O.3d 83, 85,
411 N.E.2d 818, 821. In fact, the rule
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requires the court to specify the reason for dismissal so that it may be reviewed for
its validity.
{¶ 28} A survey of recent cases confirms that courts have properly
exercised inherent power to dismiss cases over the objection of the state for (1)
want of prosecution, (2) regulation of the practice before the court, such as
dismissal for prosecutorial misconduct, and (3) preservation of the defendant’s
statutory and constitutional rights, including speedy trial and double jeopardy
issues. See, e.g., State v. Hancock (1990), 67 Ohio App.3d 328,
586 N.E.2d 1192;
Sutton, supra; State v. Long (May 8, 1979), Jefferson App. No. 1290, unreported.
{¶ 29} The case found to be in conflict with the instant case, Cleveland v.
Hall (Mar. 10, 1983), Cuyahoga App. No. 45179, unreported, 1983 WL 5829,
states that it is improper for a trial court to dismiss the complaint just because the
complaining witness changes her mind. In Dayton v. Thomas, supra, the appellate
court similarly found that “[w]hen the trial judge sustained defense counsel’s
motion for dismissal simply because the prosecuting witness did not wish to
proceed, he deprived the State of Ohio [of] its right to a fair trial.” Id. 17 O.O.3d
at 257.
{¶ 30} The “inherent powers” rationale of the majority fails to bolster its
position. To dismiss a complaint is not, as the majority states, within the purview
of “‘regulat[ing] the practice before [a court] and protect[ing] the integrity of its
proceedings.’” As the court in Thomas posited, “inherent powers” has not been
applied independently of the judicial process--that is, as a factor not connected with
determining or expediting the determination of judicial controversies. Id. Courts
do not have inherent power to reject the judicial process as a means of determining
controversies, over the objection of a party to a case. Id.
{¶ 31} I therefore respectfully dissent. I would affirm and hold that a trial
court lacks authority to dismiss charges solely to assuage the complaining witness.
DOUGLAS, J., concurs in the foregoing dissenting opinion.
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