[Cite as Johnson v. Archer, 2017-Ohio-8209.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

BRIAN JOHNSON                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                       Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 17CAE060039
WALENDA ARCHER

        Defendant-Appellee                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Common
                                               Pleas Court, 17 MDI page 162


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        October 16, 2017

APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

BRIAN A. JOHNSON, PRO SE                       WALENDA L. ARCHER
P.O. Box 5500                                  101 Abbey Cross Ln.
Chillicothe, Ohio 45601                        Westerville, Ohio 43081
Delaware County, Case No. 17CAE060039                                                       2

Hoffman, J.


        {¶1}   Plaintiff-appellant Brian A. Johnson appeals the judgment entered by the

Delaware County Common Pleas Court referring Appellant’s allegations Defendant-

appellee Walenda Archer has committed perjury and tampered with evidence to the

prosecutor for investigation.

                            STATEMENT OF THE FACTS AND CASE

        {¶2}   On January 18, 2017, appellant filed a criminal complaint against appellee,

attempting to charge her with seven counts of perjury in violation of R.C. 2921.11 and

fourteen counts of tampering with evidence in violation of R.C. 2921.12 (Case No. 17 MDI

Page 161). Appellee had testified previously in Appellant's criminal trial.

        {¶3}   By judgment entry filed January 18, 2017, the trial court dismissed the

complaint, finding appellant did not have standing to bring criminal charges against an

individual, as that is the function of the Prosecuting Attorney's Office. The trial court

explained under R.C. 2935.09, a private citizen can only file an affidavit with a reviewing

official for the purpose of review to determine if a criminal complaint should be filed by the

prosecuting attorney. Appellant filed an appeal to this Court and we affirmed. Johnson

v. Archer, 5th Dist. Delaware No. 17–CAE–02–0008 &17–CAE–02–0010, 2017-Ohio-

2965.

        {¶4}   In the instant case, on January 24, 2017, appellant filed an affidavit calling

for the arrest and prosecution of appellee.    By judgment entry filed the same date, the

trial court dismissed the affidavit. We reversed on appeal, finding dismissing the affidavit

was not an action available to the court pursuant to R.C. 2935.10(A). Id. at ¶15. We
Delaware County, Case No. 17CAE060039                                                     3


remanded the case with instructions to the trial court to either issue an arrest warrant for

Appellee or refer the matter to the prosecuting attorney pursuant to R.C. 2935.10(A). Id.

       {¶5}   On remand, the trial court determined based on the bare allegations of the

affidavit, it could not say an arrest warrant issued for Appellee would be supported by the

requisite probable cause. The court therefore referred the matter to the prosecuting

attorney for investigation. Judgment Entry, May 24, 2017.

       {¶6}   It is from the May 24, 2017 judgment Appellant prosecutes his appeal,

assigning as error:



              I. APPELLANT’S FUNDAMENTAL & SUBSTANTIAL RIGHT TO

       REDRESS OF GRIEVANCES FOR INJURIES DONE TO HIM IN HIS

       REPUTATION AND PERSON, AS A VICTIM OF A CRIME, GUARANTEED

       BY THE EQUAL PROTECTION CLAUSE UNDER DUE PROCESS OF

       LAW, PURSUANT TO THE 1ST AND 14TH AMENDMENTS TO THE

       UNITED STATES CONSTITUTION; ARTICLE 1, SECTION 2, 10a & 16 OF

       THE OHIO CONSTITUTION, WAS VIOLATED; WHEN THE TRIAL COURT

       (ABUSED ITS DISCRETION) BY (1): “UNREASONABLY” FAILING TO

       “SUA SPONTE” ENACT A [COMPLETE FACT-FINDING INQUIRY]

       PURSUANT TO R.C. 2935.10 & 2935.23 BASED UPON THE COURTS

       OWN      RATIONALE;       (2):      BY     MAKING      [PARTIAL-FACTUAL

       DETERMINATIONS] WHICH ARE IMMATERIAL TO THE DISPUTED

       [FACTS IN-ISSUE], LEADING TO {ERRED LEGAL CONCLUSIONS},
Delaware County, Case No. 17CAE060039                                     4


     WHICH RESULTED IN (PREJUDICE); WHEREBY, (FRAUD UPON THE

     COURT) MAY BE INFERRED.

           II. APPELLANT’S FUNDAMENTAL & SUBSTANTIAL RIGHT TO

     REDRESS OF GRIEVANCES FOR INJURIES DONE TO HIM IN HIS

     REPUTATION AND PERSON, AS A VICTIM OF A CRIME, GUARANTEED

     BY THE EQUAL PROTECTION CLAUSE UNDER DUE PROCESS OF

     LAW, PURSUANT TO THE 1ST AND 14TH AMENDMENTS TO THE

     UNITED STATES CONSTITUTION; ARTICLE 1, SECTION 2, 10a & 16 OF

     THE OHIO CONSTITUTION, WAS VIOLATED; WHEN THE TRIAL COURT

     (COMMITTED MANIFEST ERROR), THUS, [FAILING TO COMPLY WITH

     R.C. 2935.10 & 2935.23], BY {ILLEGALLY CONCLUDING} THAT (1): [THE

     COURT WAS LIMITED IN SCOPE OF ITS INQUIRY AND HAD NO MEANS

     TO SOLICIT TESTIMONY FROM APPELLEE], (2):            APPELLANT’S

     AFFIDAVIT CHARGING APPELLEE WITH FELONY OFFENSES WAS

     [NOT MERITORIOUS] OR OTHERWISE [LACKED PROBABLE CAUSE];

     AS SUCH {LEGAL CONCLUSIONS}ARE IN COMPLETE “DISREGARD”

     TO    ESTABLISHED     [LEGISLATIVE   AUTHORITY     CONFERRING

     JURISDICTION TO INVESTIGATE], & “CONTRARY” TO [STATUTORY

     REFERENCES       INVOKING     “STRICT”    CRIMINAL      LIABILITY,

     CULPABILITY & PROHIBITION OF FELONY CONDUCT CHARGED IN

     AFFIDAVIT], SUFFICIENT TO CONSTITUTE MENS REA – MATERIAL

     ELEMENTS & TO LEGALLY INSTITUTE PROSECUTION THEREOF;

     THEREFORE, THE COURT (LACKED THE JURISDICTION) TO
Delaware County, Case No. 17CAE060039                                                      5


       SUBSEQUENTLY          TRANSFER         THE     PROCEEDING          TO     THE

       PROSECUTING ATTORNEY FOR INVESTIGATION; RESULTING IN A

       (MANIFEST INJUSTICE), WHEREBY, (FRAUD UPON THE COURT) MAY

       BE INFERRED.



                                                 I.

       {¶7}   In his first assignment of error, Appellant argues the court erred in referring

his complaint to the prosecutor for investigation.

       {¶8}   Appellant filed his affidavit pursuant to R.C. 2935.09(D), which provides:



              A private citizen having knowledge of the facts who seeks to cause

       an arrest or prosecution under this section may 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 or

       attorney charged by law with the prosecution of offenses in the court or

       before the magistrate. A private citizen may file an affidavit charging the

       offense committed with the clerk of a court of record before or after the

       normal business hours of the reviewing officials if the clerk's office is open

       at those times. A clerk who receives an affidavit before or after the normal

       business hours of the reviewing officials shall forward it to a reviewing

       official when the reviewing official's normal business hours resume.
Delaware County, Case No. 17CAE060039                                                   6


      {¶9}   This Court previously remanded this case to the trial court to consider the

affidavit in accordance with R.C. 2935.10(A), which provides:



             Upon the filing of an affidavit or complaint as provided by section

      2935.09 of the Revised Code, if it charges the commission of a felony, such

      judge, clerk, or magistrate, unless he has reason to believe that it was not

      filed in good faith, or the claim is not meritorious, shall forthwith issue a

      warrant for the arrest of the person charged in the affidavit, and directed to

      a peace officer; otherwise he shall forthwith refer the matter to the

      prosecuting attorney or other attorney charged by law with prosecution for

      investigation prior to the issuance of warrant.



      {¶10} We review 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 under the abuse of discretion

standard. Hillman v. O'Shaughnessy, 10th Dist. Franklin No. 16AP-571, 2017-Ohio-489,

¶7. An abuse of discretion is more than merely an error of judgment; it connotes a

decision that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

      {¶11} The trial court made the following findings in choosing to refer the matter to

the prosecutor:



             Johnson claims that defendant Archer has committed seven felony

      perjury offenses and 14 felony tampering-with-evidence crimes. I have no
Delaware County, Case No. 17CAE060039                                                   7


     reason to conclude that Johnson has raised his allegations in bad faith,

     though I full understand that he – as a convicted felon serving a lengthy

     prison sentence – has a motive to now claim that Archer lied at Johnson’s

     trial. As for the question of whether Johnson’s claims against Archer are

     meritorious, I am necessarily limited to the bare allegations in Johnson’s

     filings here. I have no team of investigators or any means to solicit input

     from Archer herself about the allegations. Faced with the choice given me

     by R.C. 2935.10(A) of issuing an arrest warrant for Archer based solely on

     Johnson’s allegations or asking the prosecuting attorney to examine the

     claims before any action is taken by me against Archer, I opt for the latter

     course.   I cannot say – based solely on the information in Johnson’s

     allegations – that any arrest warrant issued by me for Archer’s arrest would

     be properly supported by the requisite probable cause.

            On the perjury allegations, I do not see evidence of a willful intent by

     Archer to provide false testimony. Confusion, mistake, or faulty memory on

     the part of a witness do not equate to perjury. United States v. Kennedy,

     714 F.3d 951, 962 (6th Cir. 2013). And “the fact that a witness changes his

     story is not sufficient to establish perjury.” State v. Johnson, 144 Ohio St.

     3d 518, 2015-Ohio-4903, ¶83 (2015). As for the tampering allegations, I

     see nothing pointing to the kind of alteration, destruction, concealment, or

     removal of evidence by Archer or the kind of intent to mislead a public official

     that a prosecutor would need to present to succeed on any tampering

     charges against Archer.
Delaware County, Case No. 17CAE060039                                                        8


       Judgment Entry, May 24, 2017, p. 1-2.



       {¶12} Based on the affidavit presented to the trial court, we find no abuse of

discretion in the court’s determination the claim was not meritorious.       As discussed by

the trial court, Appellant was serving a felony sentence in part because of the testimony

of Appellee in his criminal trial, and the affidavit did not affirmatively demonstrate probable

cause to issue a warrant for appellee’s arrest. Further, the prosecutor was in a better

position than the trial court to further investigate Appellant’s claims.

       {¶13} The first assignment of error is overruled.



                                                  II.

       {¶14} In his second assignment of error, Appellant argues the court lacked

jurisdiction to forward the case to the prosecutor instead of conducting its own

investigation. He argues the court’s action did not comply with our prior order in this case.

       {¶15} The analysis and procedure of the trial court on remand followed the clear

language of R.C. 2935.10(A).       The trial court undertook an analysis of whether he

believed the complaint was not filed in good faith or was not meritorious. After deciding

he believed the complaint was not meritorious, he referred the case to the prosecutor for

investigation.   This procedure was proper under R.C. 2935.10(A), which this Court

instructed the trial court to follow on remand.

       {¶16} The second assignment of error is overruled.
Delaware County, Case No. 17CAE060039                                             9


      {¶17} The judgment of the Delaware County Common Pleas Court is affirmed.


By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
