State v. Nix

[Cite as State v. Nix, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


STATE OF OHIO,                                  :

                 Plaintiff-Appellant,           :
                                                              No. 111803
                 v.                             :

BOBBY NIX, II,                                  :

                 Defendant-Appellee.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED, VACATED, AND REMANDED
                 RELEASED AND JOURNALIZED: April 6, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-21-664358-A


                                          Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kristen Hatcher, Assistant Prosecuting
                 Attorney, for appellant.

                 Cullen Sweeney, Cuyahoga County Public Defender, and
                 Noelle A. Powell, Assistant Public Defender, for appellee.

EILEEN A. GALLAGHER, J.:

                   Plaintiff-appellant, the state of Ohio, appeals from the trial court’s

dismissal of the indictment against defendant-appellee Bobby Nix, II. The state

contends that the trial court abused its discretion in dismissing the indictment with
prejudice. For the reasons that follow, we reverse the trial court and remand with

instructions to vacate the dismissal with prejudice and enter a dismissal without

prejudice.

Procedural History and Factual Background

                On October 25, 2021, a Cuyahoga County Grand Jury indicted Nix on

four counts: one count of rape in violation of R.C. 2907.02(A)(2), two counts of

gross sexual imposition in violation of R.C. 2907.05(A)(1) and one count of

kidnapping in violation of R.C. 2905.01(A)(4). All of the counts included a sexually

violent predator specification.       The kidnapping count also included a sexual

motivation specification. The charges related to the alleged sexual assault of J.M.

on or about October 10, 2021. At the time of the alleged assault, J.M. was 16 years

old.

                Nix was arraigned on October 28, 2021 and released on bond. A jury

trial was scheduled for August 1, 2022.

                On the morning of trial, the state advised the trial court that it was

“not prepared to go forward”1 and moved to dismiss the case without prejudice. In

response, defense counsel argued that the case be dismissed with prejudice because

Nix had been under indictment in the case for over nine months, “it appears as

though the complaining witness in this case has chosen not to participate” and it

would be “prejudicial” “[t]o allow this to hang over Mr. Nix’s head indefinite[ly].”


       1 Although the state asserts in its appellate brief that “[o]n the day of trial, the
victim failed to appear,” there is nothing in the record to indicate that the state issued any
witness subpoenas for trial — for the alleged victim or anyone else.
                 When asked by the trial court to provide “further information”

regarding why it was not prepared to go forward as scheduled, the state explained

that it was experiencing “difficulties in having contact with the minor victim because

of intervention by the adult guardian,” J.M.’s sister. The state indicated that, due to

her guardian’s intervention, it had been unable to contact J.M. to “discuss this case

and how we would prepare” and stated it had also “sent officers to go try to have

contact with the victim” but had “received pushback” from her guardian. The state

explained that it could not “go forward” with the case without J.M. but that it did

not believe that “it is entirely the victim due to her age that is avoiding having contact

with us.” The state requested a dismissal without prejudice so that it could “further

review[]” the case “at a later date,” after J.M. turned 182 and the state was no longer

required to go through her guardian to talk to her:

      We believe that when the child reaches an age of majority here in the
      state of Ohio that we will have an opportunity to have a better
      conversation and may lead to us not further pursuing the case — our
      case right now is based on police reports, interviews with the child at
      the time by detectives, but the case cannot move forward without the
      victim present.

                 The trial court responded:

      THE COURT: So what I’m hearing is that the person who is in a
      position to determine what’s in the best interest of the child has
      determined that it is not in the best interest of the child to participate
      in this matter, and what the State is saying that you want to wait until
      such time as the child is of legal age and then you can talk to a very
      young child who is 18 years old, is that what I’m hearing? … I’m
      having a problem with that whole scenario with regards to the State.



      2   According to the state, J.M. would turn 18 in October 2022.
            I have got a guardian who is in a position to determine what is in
      the best interest of the child and has made that very, very clear.
      Dismissed with prejudice[.]

               The state appealed, raising the following sole assignment of error for

review:

      The trial court erred when it dismissed Appellee’s case with prejudice
      in the absence of a statutory or constitutional violation that would bar
      further prosecution.

Law and Analysis

               The state argues that the trial court abused its discretion in dismissing

the case with prejudice because the trial court “failed to identify the constitutional

or statutory right that [Nix] was denied, as required for a dismissal with prejudice”

and it is “well-established that a dismissal with prejudice requires a statutory or

constitutional violation that would, in itself, bar prosecution.” The state requests

that we vacate the dismissal with prejudice and remand the case to the trial court

with an instruction to dismiss the case without prejudice.

               Nix responds that the trial court did not abuse its discretion in

dismissing the case with prejudice because the reasons the trial court put on the

record in support of its dismissal, i.e., its disapproval of the state’s plan to overcome

its barriers to prosecuting Nix, “were not unreasonable, arbitrary or

unconscionable,” but “went directly” to J.M.’s “right to have some agency over her

role in the case against Mr. Nix,” as invoked by her guardian, and her guardian’s

determination that it was not in J.M.’s best interest to participate in the prosecution.

Nix argues that the trial court’s dismissal with prejudice should be affirmed because
(1) the trial court “followed Crim.R. 48(B),” (2) “[t]his situation” “involved” J.M.’s

constitutional rights under Marsy’s Law and Nix’s constitutional right to confront

the witnesses against him under the Sixth Amendment to the United States

Constitution and Article I, Section 10 of the Ohio Constitution and (3) the only way

to prevent the perceived harm identified by the trial court with respect to the state’s

plan to further prosecute the case was to dismiss the case with prejudice.

               We review a trial court’s decision to dismiss an indictment for abuse

of discretion. See, e.g., State v. Strong, 8th Dist. Cuyahoga No. 100766, 2014-Ohio-

4209, ¶ 7; State v. Walton, 8th Dist. Cuyahoga No. 87347, 

. An

abuse of discretion occurs when a trial court’s decision is unreasonable, arbitrary or

unconscionable. Cleveland v. Wanton, 8th Dist. Cuyahoga No. 109828, 2021-Ohio-

1951, ¶ 8, citing Blakemore v. Blakemore, 

, 

(1983). “An abuse of discretion also occurs when a trial court ‘“applies the wrong

legal standard, misapplies the correct legal standard, or relies on clearly erroneous

findings of fact.’”” Wanton at ¶ 8, quoting S. Euclid v. Datillo, 

, 

, ¶ 8 (8th Dist.), quoting Thomas v. Cleveland, 

,

, 

 (8th Dist.).

               Crim.R. 48 addresses dismissals in criminal cases. It provides:

      (A) Dismissal by the state. The state may by leave of court and in open
      court file an entry of dismissal of an indictment, information, or
      complaint and the prosecution shall thereupon terminate.

      (B) 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.
               Crim.R. 48(B) does not, in and of itself, limit the reasons for which a

trial court may dismiss a case. Crim.R. 48(B); see also State v. Hollins, 8th Dist.

Cuyahoga No. 103864, 

 (“Generally, a court has inherent

power to regulate the practice before it and protect the integrity of its proceedings,

which includes a court’s power to sua sponte dismiss a criminal case. … ‘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 interest of justice.’”), quoting State v. Busch, 

, 

 (1996). The rule simply requires that the trial court “state on the record

its findings of fact and reasons for the dismissal.” Crim.R. 48(B). However, a trial

court “does not have the authority to dismiss a criminal complaint, charge,

information, or indictment solely at the request of the complaining witness and over

the objection of the prosecuting attorney or other chief legal officer who is

responsible for the prosecution of the case.” R.C. 2931.03.

               Crim.R. 48 likewise does not indicate when a case may be dismissed

with prejudice as opposed to without prejudice.         Concerning dismissals with

prejudice, this court has repeatedly stated that a trial court may dismiss a case with

prejudice only where there is a deprivation of a defendant’s constitutional or

statutory rights, the violation of which would bar further prosecution. See, e.g.,

Strong, 

 (“Although Crim.R. 48 allows a trial court to dismiss

an indictment, the dismissal may only be made with prejudice where the court finds
that ‘the defendant has been denied a constitutional right or statutory right, the

violation of which would, in itself, bar prosecution.’”), quoting State v. Peters, 8th

Dist. Cuyahoga No. 92791, 

, ¶ 12; Walton, 

(‘“Crim.R. 48(B) does not provide for a dismissal with prejudice; the court has the

inherent power to dismiss with prejudice only where it is apparent that the

defendant has been denied a constitutional or statutory right, the violation of which

would, in itself, bar prosecution.’”), quoting Fairview Park v. Fleming, 8th Dist.

Cuyahoga Nos. 77323 and 77324, 

, 7 (Dec. 7, 2000),

citing State v. Dixon, 

, 

 (8th Dist.1984).

              The Ohio Supreme Court recently addressed the issue of when a trial

court can properly dismiss an indictment with prejudice in State v. Troisi, Slip

Opinion No. 

. In that case, the court held that the trial court

properly dismissed an indictment where the state had failed to properly identify the

“nature and cause of the accusation” against the defendants in violation of their

constitutional right to due process. Id. at ¶ 1, 20, 38. The court held, however, that

the trial court had erred in dismissing the indictment with prejudice because there

had been no violation of the defendant’s constitutional or statutory rights that would

bar further prosecution. Id. at ¶ 40, 44. The court explained:

             Here, the trial court erred when it dismissed the indictment with
      prejudice. “It has been held that ‘since neither Crim.R. 48(A) nor
      Crim.R. 48(B) expressly provides for a dismissal with prejudice, a
      dismissal … with prejudice may be entered only where there is a
      deprivation of a defendant’s constitutional or statutory rights, the
      violation of which would, in and of itself, bar further prosecution.’”
      State v. Mills, 11th Dist. Trumbull Nos. 2020-T-0046 and 2020-T-
        0047, 

, quoting State v. Jones, 2d Dist.
        Montgomery No. 22521, 

; see also State v. Sutton,
        

, 

 (9th Dist.1979). Although
        appellants’ constitutional rights are involved here, the state could
        reindict appellants and further prosecution would not be barred.
        Dismissals with prejudice are more appropriate for cases involving the
        deprivation of a defendant’s rights to a speedy trial or against double
        jeopardy, which would preclude further proceedings. See State v.
        Michailides, 

, 

 (8th Dist.); State v.
        Dunn, 8th Dist. Cuyahoga No. 101648, 

.

Troisi at ¶ 40. The court remanded the case to the trial court with instructions to

vacate its dismissal with prejudice and enter a dismissal without prejudice. Id. at

¶ 44.

                Here, there is nothing in the record to indicate that any statutory or

constitutional right was violated that would bar further prosecution of Nix. Nix

makes no such claim, and the trial court made no such finding.

                Although the trial court made no mention of any statutory or

constitutional right when dismissing the case, Nix argues that the trial court

nevertheless acted within its discretion in dismissing the case with prejudice

because “[t]his situation” “involved” J.M.’s constitutional rights under Marsy’s Law

and Nix’s constitutional right to confront the witnesses against him under the Sixth

Amendment to the United States Constitution and Article I, Section 10 of the Ohio

Constitution. We disagree.

                Article I, Section 10a of the Ohio Constitution, commonly known as

“Marsy’s Law,” grants crime victims certain rights with respect to criminal cases;

however, as stated above, it does not permit crime victims to make decisions
regarding prosecution. See R.C. 2931.03; State v. Hughes, 

, 

, ¶ 12-14 (8th Dist.) (“Victims are not parties. … ‘It is not the victim’s

interests that are being represented in a criminal case, but rather those of the people

of the State of Ohio.’”), quoting State v. Williams, 7th Dist. Mahoning No. 09 MA 11,

.

               The Sixth Amendment to the United States Constitution, binding on

the states through the Fourteenth Amendment, provides, in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right … to be confronted with

the witnesses against him.” Similarly, Article I, Section 10 of the Ohio Constitution

provides: “In any trial, in any court, the party accused shall be allowed … to meet

the witnesses face to face.” “[T]he Ohio Constitution provides no greater right of

confrontation than the Sixth Amendment.” In re H.P.P., 8th Dist. Cuyahoga Nos.

108860 and 108861, 

, citing State v. Arnold, 

, 

, 

, ¶ 12.

               Rights guaranteed under the Confrontation Clause relate to the

admissibility of evidence at trial. See generally Michigan v. Bryant, 

, 

, 

 (2011); Davis v. Washington, 

, 

, 

 (2006). The Confrontation Clause bars the admission

of extrinsic evidence of testimonial statements by a declarant who does not testify at

trial unless the declarant is unavailable and the defendant had a prior opportunity

to cross-examine the declarant. Crawford v. Washington, 

, 

, 

 (2004). Here, trial did not commence and no testimonial
statements were admitted into evidence. Accordingly, Nix was not denied the right

to confront the witnesses against him; Nix’s rights under the Confrontation Clause

were not violated simply because the alleged victim did not appear for trial nor did

trial commence.

               In support of its argument that the trial court abused its discretion in

dismissing the case with prejudice, the state cites several cases in which this court

previously reversed dismissals with prejudice entered after witnesses failed to

appear for trial. See, e.g., Strong, 

; State v. Knight, 8th

Dist. Cuyahoga No. 93649, 

, ¶ 2-5; Walton, 

, at ¶ 2-

6; State v. Steel, 8th Dist. Cuyahoga No. 85076, 

. Nix

responds that this case is “differently situated” from cases in which an alleged victim

fails to appear for trial. He contends that the trial court’s decision to enter a

dismissal with prejudice here was based, not on what had happened in the past, i.e.,

the alleged victim’s failure to appear, but rather, was “forward looking,” i.e., based

on the trial court’s disapproval of the state’s articulated strategy for prosecuting the

case going forward.

               As detailed above, it is clear from the record in this case that the

alleged victim’s “failure to appear” was not the sole or primary basis upon which the

trial court dismissed the indictment with prejudice. As the trial court explained, it

“ha[d] a problem” with the state’s plan to wait until the alleged victim was 18 (when

the state could contact alleged victim directly and avoid the intervention of her

guardian) to discuss prosecution of the case. The trial court assumed that J.M.’s
legal guardian had been acting in J.M.’s “best interest” in refusing, on J.M.’s behalf,

to voluntarily participate in the prosecution of Nix and dismissed the case with

prejudice as a means of resolving that “problem.”3 Nix has not presented us with

any authority that would authorize a trial court to dismiss an indictment with

prejudice under similar circumstances.

               Following a thorough review of the record and controlling legal

authority, we find that the trial court abused its discretion in dismissing the

indictment with prejudice. The state’s assignment of error is sustained.

               The trial court’s order dismissing the case with prejudice is hereby

reversed. The case is remanded to the trial court with instructions to vacate the

dismissal with prejudice and enter a dismissal without prejudice.

               Judgment reversed, vacated and remanded.

       It is ordered that appellant shall pay the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.




       3 There are a myriad of reasons why a guardian might “intervene” to thwart the
state’s efforts to communicate with an alleged minor victim, e.g., the minor’s mental
health, to allow the minor to put the alleged assault behind her and move on, fear,
concerns regarding the truthfulness of the minor’s version of events, a distrust of police
and the justice system, pressure from others or perhaps even a relationship with the
defendant. Although the trial court assumed that J.M.’s legal guardian was acting in her
best interest in refusing to cooperate with the state in prosecuting Nix, it is unknown what
motivated J.M.’s guardian in this case. There is no indication in the record that the state,
the police, the trial court or anyone else inquired why the guardian was “intervening” to
preclude the state and police from having contact with J.M. As a result, we can only
speculate as to the guardian’s motivation here. It is concerning to this court that no one
appears to have conducted such an inquiry. Nevertheless, it does not impact the result
here.
      It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



                        __
EILEEN A. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and
MICHAEL JOHN RYAN, J., CONCUR