[Cite as State v. Hollins, 2016-Ohio-5521.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 103864



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLANT

                                                   vs.

                                          TAVION M. HOLLINS

                                                         DEFENDANT-APPELLEE




                                           JUDGMENT:
                                     REVERSED AND REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-15-596960-A

        BEFORE: Keough, P.J., E.A. Gallagher, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: August 25, 2016
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Adam M. Chaloupka
       Carl Mazzone
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Thomas A. Rein
700 West St. Clair Avenue
Hoyt Block Building, Suite 212
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1}    Plaintiff-appellant, the state of Ohio, appeals from the trial court’s judgment

denying its motion for a material witness warrant and dismissing the indictment against

defendant-appellee, Tavion Hollins. Finding merit to the appeal, we reverse and remand.

I.     Background

       {¶2}    In July 2015, Hollins was indicted on two counts of aggravated burglary, two

counts of kidnapping, and two counts of felonious assault. The indictment related to an incident

involving April Bailey, the mother of Hollins’s child. Bailey sustained extensive injuries during

the alleged assault, including a fractured orbital bone.

       {¶3}    The case was set for trial on October 13, 2015. Despite being subpoenaed, Bailey

did not appear to give her testimony. The prosecutor informed the court that in a telephone

conversation several days earlier, Bailey had acknowledged receipt of the subpoena and told him

she would appear at trial. However, when the prosecutor started questioning Bailey about the

incident, she hung up on him. The prosecutor tried to call Bailey several more times but the

calls went directly to voicemail, and Bailey did not respond to the messages left by the

prosecutor.

       {¶4}    The prosecutor also told the court that the state had offered Hollins a plea deal,

but if he did not accept the plea agreement, the state would ask for a continuance of trial and seek

a material witness warrant to compel Bailey’s testimony at trial.

       {¶5}    Hollins initially accepted the plea agreement but changed his mind during the plea

colloquy with the court. The trial court then granted the state’s request for a continuance of trial

until November 2, 2015.
        {¶6}    The state subsequently re-subpoenaed its witnesses, including Bailey, who was

personally served. The prosecutor again tried to contact Bailey by telephone, but the calls went

directly to voicemail. The prosecutor left messages requesting a return call but Bailey did not

return the calls.

        {¶7}    Accordingly, on October 26, 2015, the state filed a motion pursuant to R.C.

2941.48 for a material witness warrant regarding Bailey. In the accompanying affidavit, the

prosecutor averred that Bailey was a material witness because she was the alleged victim and

eyewitness of Hollins’s alleged criminal conduct. The state also stated its belief that Bailey

would not appear for trial. The trial court did not rule on the state’s motion prior to trial.

        {¶8}    When the case was called for trial on November 2, 2015, Bailey was again absent.

 The prosecutor asked the court to grant the material witness warrant, asserting that the state

could not proceed at trial without Bailey. Defense counsel asked that the case be dismissed due to

Bailey’s absence.

        {¶9} In response to the court’s question regarding whether the prosecutor had ever spoken

with Bailey, the prosecutor said that he had spoken with her before the first trial, and she had told

him that she would appear at trial but would not testify. The court then asked whether Bailey

had indicated that she was afraid to appear. The prosecutor responded that Bailey had told him

that she was not happy with a separate police investigation involving a family member who had

been the victim of a crime “so she had no intention of cooperating now.”

        {¶10} The prosecutor told the court that even though Bailey had refused to sign a medical

release form through the prosecutor’s office, he had obtained her medical records because she

had signed a release at the hospital. He stated that the records reflected “horrific” injuries.
          {¶11} The trial court then denied the state’s motion for a material witness warrant and

dismissed the indictment without prejudice. It reasoned:

          Okay. And she did not sign the release with the prosecutor’s office. There was
          one already signed at the hospital. That’s how you were able to get the records.
          She’s indicated that she does not want to cooperate in this case. She’s further
          indicated that even if she was forced to come down that she would not testify.
          With those facts on the record, the court will deny the defendant’s — the
          plaintiff’s motion for material witness warrant.

          This matter will be dismissed without prejudice, which means, Mr. Hollins, at any
          time if the state — if the victim in this case decides to bring charges, the state of
          Ohio will be free to bring those charges against you and bring you right back in
          custody.

          {¶12} The trial court’s subsequent journal entry dismissing the case

stated:

          Case is called for trial. Victim did not appear for the second time for trial. The
          state’s motion for material witness warrant is denied. Case is dismissed without
          prejudice. Defendant ordered released.
          {¶13} This appeal by the state of Ohio followed.

II.       Analysis

          {¶14} In its single assignment of error, the state contends that the trial court erred in

dismissing the indictment because Bailey twice did not appear to testify. The state argues that

the trial court should have instead granted its request for a material witness warrant to compel

Bailey’s presence and testimony at trial.

          {¶15} Initially, we note that pursuant to R.C. 2945.67(A), the state may appeal the

dismissal of an indictment whether the dismissal is with or without prejudice. State v. Craig,

116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 975, ¶ 16.

          {¶16} 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. State v. Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125 (1996). Under Crim.R. 48(B),

“[i]f the court over objection of the state dismisses an indictment, information, or complaint, it

shall state on the record it findings of fact and reasons for the dismissal.” In the Busch decision,

the Ohio Supreme Court explained the effect of Crim.R. 48(B):

       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 interest of justice.

       {¶17} The question, therefore, is whether the trial court’s dismissal in this case served the

interest of justice. We review a trial court’s dismissal of criminal charges under Crim.R 48(B)

for abuse of discretion. Busch at 616. An abuse of discretion occurs when a trial court’s

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983). “An unreasonable decision is one that is unsupported by a

sound reasoning process; an arbitrary attitude is an attitude that is without adequate determining

principle not governed by any fixed rules or standard; and unconscionable may be defined as

affronting the sense of justice, decency, or reasonableness.” State v. Hill, 10th Dist. Franklin

No. AP-177, 2010-Ohio-6121, ¶ 34.

       {¶18} Under Crim.R. 48(B), a trial court must state on the record its findings of fact and

reasons for dismissing the case. Here, the trial court found that Bailey had: 1) not signed a

records release with the prosecutor’s office; 2) indicated that she did not want to cooperate; and

3) said that she would not testify even if she were forced to appear at trial. In light of these

facts, the trial court denied the state’s motion for a material witness warrant and dismissed the

case. Thus, it is apparent that the trial court dismissed the case solely because Bailey did not
want to cooperate with the prosecution against Hollins. Indeed, the trial court told Hollins that

if Bailey later decided to bring charges against him, the state could reindict.

       {¶19} Although the Busch case held that a trial judge could sua sponte dismiss a criminal

case if the complaining witness did not wish to proceed, even if the prosecutor objected to the

dismissal, that aspect of the Busch decision was legislatively superseded by statute in 1998 when

R.C. 2931.03 was amended to add the following language: “A judge of a court of common pleas

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.”

Accordingly, a case may no longer be dismissed solely at the request of the complaining witness.

 State v. Sanders, 7th Dist. Columbiana No. 12 CO 35, 2013-Ohio-5220, ¶ 15.

       {¶20} Hollins contends that the trial court properly dismissed the case because there is

nothing in the record demonstrating that Bailey asked that the case be dismissed.   It is apparent,

however, that the trial court dismissed solely because Bailey did not wish to cooperate in

prosecuting the case, which we find on these facts to be akin to a request that the case be

dismissed.

       {¶21} Furthermore, the trial court appears to have based its dismissal on the

misconception that the pursuit of criminal charges rests with the victim, rather than the state.

Under R.C. 2935.03(B)(3)(e)(ii), the victim need not consent to the filing of charges or sign the

complaint. If the victim does not want to prosecute or refuses to cooperate, the decision to

prosecute rests with the prosecutor’s discretion. In this case, the state determined to prosecute

Hollins in light of what the prosecutor told the court were the victim’s “horrific” injuries, a
decision the state was free to make despite Bailey’s obvious lack of cooperation with the

prosecution.

       {¶22} Accordingly, we find that the dismissal in this case was an abuse of discretion.

There were appropriate means for the court to compel Bailey’s appearance and presence at trial

that did not require dismissal of the case. Specifically, the trial court should have granted the

state’s motion for a material witness warrant.

       {¶23} R.C. 2941.48 states:

       In any case pending in the court of common pleas, the court, either before or after
       indictment, may require any witness designated by the prosecuting attorney to
       enter into a recognizance, with or without surety, in such sum as the court thinks
       proper for his appearance to testify in such cause. A witness failing or refusing to
       comply with such order shall be committed to the county jail until he gives his
       testimony in such case or is ordered discharged by the court.

       {¶24} “A warrant to detain a material witness must be supported by probable cause,

supported by oath and affirmation, to believe that the witness is material and that the detention of

the witness is necessary to procure her attendance at trial.” State ex rel. Dorsey v. Haines, 63

Ohio App.3d 580, 581, 579 N.E.2d 541 (2d Dist.1991).

       {¶25} The state provided a detailed affidavit with its motion explaining that Bailey was a

material witness because she was both the victim of and witness to Hollins’s criminal conduct,

and further, that the warrant was necessary to procure her attendance at trial. The prosecutor

reiterated the pertinent facts set forth in the affidavit to the trial court on November 2, 2015.

Specifically, the prosecutor told the court that Bailey had acknowledged to him before the first

trial that she had received a subpoena, but then told him that she would not testify and hung up

on him; she did not answer her phone when the prosecutor again tried to contact her prior to the

first and second trial dates; she did not respond to the prosecutor’s voicemail messages asking
that she call him; and in addition to regular service, she was personally served prior to the second

trial date but still did not appear.

        {¶26} Accordingly, there was probable cause, supported by oath or affirmation,

demonstrating that Bailey was a material witness and that court intervention was necessary to

procure her attendance at trial. Therefore, the trial court should have granted the state’s motion.

        {¶27} The state contends that upon granting its motion, the court should have ordered

Bailey detained pursuant to R.C. 2937.18, which provides that “if a witness ordered to give

recognizance fails to comply with such order, the judge * * * shall commit him to such custody

or open or close detention as may be appropriate under the circumstances, until he complies with

the order or is discharged.” The state brought its motion under R.C. 2941.48, however, and

made no mention in its motion or to the court regarding R.C. 2937.18.

        {¶28} Under R.C. 2941.48, a court may require a witness to post bond when there is good

reason to believe she will not appear to testify in a criminal case. If the witness fails to post

bond, the court may then order the witness committed to the county jail until she gives her

testimony at trial. State v. Kirklin, 8th Dist. Cuyahoga No. 50157, 1986 Ohio App. LEXIS

6327, *6 (Apr. 10, 1986).

        {¶29} Under the facts of this case, we find that the trial court abused its discretion in

denying the state’s motion for a material witness warrant under R.C. 2941.48 and dismissing the

indictment against Hollins. Because Bailey was a material witness and there was probable cause

under R.C. 2941.48 demonstrating that she would likely not appear to testify at trial, the trial

court could have ordered her to post bond to guarantee her appearance, and if she failed to post

such bond, the trial court could have ordered her detained in the county jail until she appeared at

trial to give her testimony.
       {¶30} The state’s assignment of error is sustained. The trial court’s judgment denying

the state’s motion for a material witness warrant under R.C. 2941.48 is reversed, and the

indictment against Hollins is hereby reinstated. The matter is remanded for further proceedings

consistent with this opinion.

       {¶31} Judgment reversed and remanded.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court 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.


KATHLEEN ANN KEOUGH, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS
(See separate dissenting opinion).


EILEEN A. GALLAGHER, J., DISSENTING:

       {¶32} I respectfully dissent from the opinion of my learned colleagues.

       {¶33} In this case, the defendant had been in custody since his arrest on June 23, 2015

until the case was dismissed on November 6, 2015, a total of 137 days. I recognize that there

was a detainer lodged against him by the Ohio Adult Parole Authority but that detainer was based

solely on the charges pending against the defendant in this indictment.

       {¶34} In this case, the prosecuting attorney was put on notice prior to the first scheduled

trial date of the alleged victim’s recalcitrance. He had related to the trial court on October 13,
2015, that she was uncooperative and that she had stated that she would answer the subpoena but

“under no circumstances would she testify.” She then became incommunicado.

       {¶35} According to the state, “the state gave her plenty of notice by sending her the

subpoena eleven days before the October 13th trial date and with personal service by the

Cuyahoga County Prosecutors investigators for the November 2 trial date                * * *.” In his

affidavit attached to the motion for a material witness warrant, the prosecutor stated, “In addition

to regular sheriff’s service, the undersigned requested an investigator personally serve Miss

Bailey.” There is no averment in that affidavit that personal service was perfected and there is

no affidavit from the investigator who allegedly served her. That is the proper practice.

       {¶36} Assuming arguendo that personal service was perfected, the court could have

issued a bench warrant at the same time as it dismissed the charges. If, and when, the warrant

was executed, the state could then refile the charges against the defendant while the witness

remained in custody pending trial;     thus assuring her appearance and sending a message to other

witnesses who refuse to comply with properly issued subpoenas that their noncooperation will be

taken seriously; this will ensure that both the state and the defendant have a fair trial.

       {¶37} This may appear to be a distinction without a difference but the question is how

long shall a defendant remain in custody while law enforcement officers attempt to locate and

arrest the noncompliant witness.

       {¶38} A trial court’s dismissal of an indictment is reviewed for an abuse of discretion.

State v. Walton, 8th Dist. Cuyahoga No. 87347, 2006-Ohio-4771, ¶ 4. An “abuse of discretion

implies a decision that either is without a reasonable basis or is clearly wrong.” State v. Strong,

8th Dist. Cuyahoga No. 10076, 2014-Ohio-4209, ¶ 7, citing Angelkovski v. Buckeye Potato

Chips Co., 11 Ohio App.3d 159, 463 N.E.2d 1280 (10th Dist.1983).
        {¶39} Crim.R. 48(B) provides the procedure for the dismissal of a criminal case by the

court over the objections of the state. Subsection (B) provides that “[i]f the court over the

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.” The Ohio Supreme Court in State v.

Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125 (1996), stated that Crim.R. 48(B) “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.” I do

take note that the state never lodged an objection to the dismissal of the charges. The prosecutor

merely sought reconsideration of the denial of the motion for a material witness warrant.

        {¶40} Here, the court stated its reason for dismissing the case:   “victim did not appear

for the second time for trial. Case is dismissed without prejudice.”

        {¶41} As the case was dismissed without prejudice, the state can reindict Hollins and, if

they properly move the court, seek a bench warrant for the arrest of April Bailey prior to that

time.
