[Cite as State v. Eatmon, 2020-Ohio-3592.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA


STATE OF OHIO,                                     :

                Plaintiff-Appellant,               :
                                                              No. 108786
                v.                                 :

DARNELL EATMON, JR.,                               :

                Defendant-Appellee.                :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: July 2, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-623818-A


                                             Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and John R. Kosko, Assistant Prosecuting
                Attorney, for appellant.

                Mark A. Stanton, Cuyahoga County Public Defender, and
                John T. Martin, Assistant Public Defender, for appellee.


MARY EILEEN KILBANE, J.:

                   Plaintiff-appellant, the state of Ohio (“the state”), appeals from the

trial court’s judgment dismissing the indictment against defendant-appellee,
Darnell Eatmon, Jr. (“Eatmon”). The dismissal was without prejudice. For the

reasons that follow, we affirm the dismissal.

I.   FACTUAL BACKGROUND

              On December 13, 2017, Eatmon, 23 years old at the time, was indicted

on five counts for offenses dated September 9, 2017. Count 1 was for attempted

murder under R.C. 2923.02 and 2903.02(A), a first-degree felony, with one-year,

three-year, and 54-month firearm specifications. Count 2 was for felonious assault

under R.C. 2903.11(A)(1), a second-degree felony, with a one-year, 18-month, and

three-year firearm specification. Count 3 was for felonious assault under R.C.

2903.11(A)(2), a second-degree felony, with a one-year, 18-month, and three-year

firearm specification. Count 4 was for discharge of firearm on or near prohibited

premises under R.C. 2923.162(A)(3), a first-degree felony, with a one-year, 18-

month, and three-year firearm specification. Count 5 was for having weapons while

under disability under R.C. 2923.13(A)(3), a third-degree felony.

              The indictment related to an incident involving Eatmon and Khaalis

Miller (“Miller”), age 40. Eatmon is the nephew of Miller. The state alleges that

Eatmon shot Miller multiple times on September 9, 2017, around 6:57 p.m. near

1239 East 124th Street in Cleveland, Ohio after a heated argument.           Miller

underwent surgery for his injuries. Two days after the incident, on September 11,

2017, Miller’s mother, Lisa Ford (“Ford”), called the Cleveland Police Department

and reported that Eatmon had shot Miller and that Miller was currently recovering

in the hospital. Afterwards, Miller cooperated with the police and identified Eatmon
out of a photo lineup. Ford was also present during the lineup and cooperated with

police at the time. She even offered to put the police in touch with an eyewitness to

the incident. The state later sought to designate Miller and Ford as material

witnesses.

      A. Attempts to contact Miller

               The state represented the following facts regarding its attempts to

contact Miller to secure his appearance as a witness. The state called Miller on

March 12, 2019. No one answered, but the state left a voicemail message and

requested a return call.     Also, on March 12, 2019, the state mailed written

correspondence to Miller requesting a return phone call.

               The state’s investigator made several phone calls and travelled to four

addresses to attempt to contact Miller. The first address was in East Cleveland. No

one answered the door, so the investigator left written correspondence in a mailbox

at a residence in East Cleveland. The mailbox contained mail addressed to Miller

and another female. The second address was in Euclid. The current resident stated

that she had lived there for three years and did not know Miller. The third address

was also in Euclid. No one answered the door, so the investigator left a letter.

               The last address the investigator visited was an apartment in

Painesville. A woman answered the door and said she did not know Miller and that

he did not live there. Later, the apartment manager called the investigator and

confirmed that the apartment is rented to a “Miller” and that one of the occupants

is a Khaalis Miller.
               On March 20, 2019, the state wrote a letter to Miller at the Painesville

address. The letter enclosed a copy of Miller’s subpoena for appearance at a pretrial

on April 3, 2019. Meanwhile, the state attempted to reach Miller by calling several

phone numbers that appeared on his medical records. Miller did not appear at the

April 3, 2019 pretrial. On April 4, 2019, the state sent Miller a message via Facebook,

but did not receive a response.

               On April 30, 2019, the court held a hearing before denying the state’s

motions for recognizance and/or commitment of a material witness that the state

had filed on April 26, 2019, for both Miller and Ford. The state attempted to call

Miller the morning of the hearing at a number his mother provided. A male

answered the phone and replied “yes” when the caller asked for Mr. Miller.

However, after the prosecutor introduced herself, the male stated that he would

need to take a message because Miller was not there. The state never received a

return phone call.

               The state called the same number on May 3 and 9, 2019, to attempt

to reach Miller. Both times, an automated message stated that the phone was not

accepting calls. On May 9, 2019, the state moved for a continuance of the May 15

trial, stating that it had not yet secured the presence of material witnesses for the

state’s case-in-chief. The state then filed new motions for material witnesses on May

10, 2019. On May 13, 2019, the court granted the state’s request for a continuance

and reset trial to July 9, 2019, but did not issue material witness warrants.
Thereafter, the state only attempted to contact Miller through written

correspondence. Miller was not personally served with a subpoena.

      B. Attempts to contact Ford

               The state represented the following facts regarding its attempts to

contact Ford to secure her appearance as a witness. On April 2, 2019, the state

attempted to contact Ford using one of the phone numbers found on Miller’s

medical records. An automated message stated that the call could not be completed

as dialed. On April 4, 2019, the state attempted to call Ford’s place of employment,

but there was no answer and no means to leave a message. The state then sent

written correspondence to Ford at her home and work addresses.              The state

contacted Ford’s sister, who said she would have Ford call the prosecuting attorney.

               On April 23, 2019, a Cleveland police detective visited Ford’s home

and place of employment. No one answered the door at either location. The

detective left letters at both places and requested a return call. About thirty minutes

after the detective left, Ms. Ford, apparently upset, called the detective, apparently

upset, and stated she did not want anything to do with the case and that Miller did

not wish to prosecute. She confirmed, however, that Miller lives in Painesville. After

obtaining a continuance, the state left subpoenas for Ford’s and Miller’s appearance

at trial at Ford’s residence. Ford was not personally served with a subpoena.

II. PROCEDURAL BACKGROUND

               Eatmon was indicted on December 13, 2017. Trial was originally set

for May 15, 2019. The trial court held a pretrial hearing on April 3, 2019. The state
had attempted to call Miller and had mailed a subpoena to him at his Painesville

residence for his appearance at the April 3, 2019 hearing, but he failed to appear.

The state filed motions for recognizance and/or commitment of a material witness

as to Miller and Ford on April 26, 2019. The court denied both motions on May 1,

2019, after a hearing on April 30, 2019. Neither motion contains an affidavit or

sworn testimony of the state in support of issuing warrants for Miller or Ford.

               On May 9, 2019, the state moved for a continuance, seeking

additional time to secure material witnesses. On May 10, 2019, the state moved to

declare Miller and Ford material witnesses. The parties attended a final pretrial on

May 13, 2019. The court granted the state’s motion for continuance and reset trial

for July 9, 2019. On the day of trial, the state orally renewed its motions for

recognizance and to declare Miller and Ford material witnesses.

               The trial court asked the state several questions regarding its motion

for material witness warrants. The state confirmed that it had not personally served

Miller or Ford with subpoenas and that Miller and Ford are adults. The state also

informed the court that it did not have knowledge as to whether Miller or Ford had

been threatened or were in danger. The state told the court that it was not prepared

to proceed without the two witnesses and that it would not voluntarily dismiss. The

trial court, after noting that it had already granted the state one continuance,

dismissed the indictment without prejudice. The judgment entry denying the state’s

motion for a material witness warrant and dismissing the case without prejudice

stated as follows:
      State unable to proceed. State’s witnesses failed to appear for trial for
      a second time. State’s motion for a material witness warrant is denied.
      Case dismissed without prejudice. Defendant ordered released as to
      this case only.

              Immediately after dismissing the underlying case, the trial court

proceeded to sentence Eatmon on another case to which he had entered a guilty plea

on May 13, 2019, for three offenses: drug possession under R.C. 2925.11(A), a fifth-

degree felony; possessing criminal tools under R.C. 2923.24(A), a fifth-degree

felony; and having weapons while under disability under R.C. 2923.13(A)(2), a

third-degree felony. He received a concurrent sentence of 11 months on each of the

two fifth-degree felonies and 18 months on the third-degree felony.

              This appeal of the dismissal without prejudice follows. The state

asserts the following assignment of error:

                             Assignment of Error No. 1

      The trial court abused its discretion in dismissing this case under
      Crim.R. 48(B) when the Material Witnesses were not present for trial
      but valid mechanisms existed to compel the Material Witnesses[’]
      presence and testimony.

III. LAW AND ANALYSIS

               In the state’s sole assignment of error, it argues that the trial court

erred in dismissing the indictment against Eatmon under Crim.R. 48(B). The

assignment of error involves two issues. We first address whether the trial court

abused its discretion in denying the state’s motions for material witness warrants

for Miller and Ford. We find that it did not. Second, we address whether the trial
court abused its discretion in dismissing the indictment without prejudice. We find

that it did not.

       A. Standard of Review

                   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. Hollins, 8th Dist. Cuyahoga No. 103864,

2016-Ohio-5521, ¶ 16, citing State v. Busch, 76 Ohio St.3d 613, 615, 669 N.E.2d 1125

(1996). “We review a trial court’s dismissal of criminal charges under Crim.R. 48(B)

for abuse of discretion.” Id. at ¶ 17, citing Busch at 616. “An abuse of discretion

occurs when a trial court’s decision is unreasonable, arbitrary, or unconscionable.”

Id., citing 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.” Id., quoting State v.

Hill, 10th Dist. Franklin No. AP-177, 2010-Ohio-6121, ¶ 34.

                   A request for a continuance to issue a material witness warrant is also

reviewed for an abuse of discretion. State v. Metz, 8th Dist. Cuyahoga Nos. 107212,

107246, 107259, and 107261, 2019-Ohio-4054, ¶ 86.

       B. Material Witness Warrants

                   The state argues that its motion for material witness warrants for

Miller and Ford should have been granted and the trial continued for a second time.
We find that the trial court did not abuse its discretion in refusing to issue material

witness warrants for Miller or Ford where the state failed to provide sworn affidavits

or testimony in support of the warrants demonstrating probable cause that warrants

were necessary to procure the witnesses’ attendance at trial.

               The state argues that the trial court refused to issue material witness

warrants because the state had not obtained personal service on either witness and

that its refusal was an abuse of discretion. The state primarily contends that service

of a subpoena is not required to issue a material witness warrant and specifically

points out that personal service of a subpoena is not required by any the following

three statutes: R.C. 2937.16; R.C. 2937.18; and R.C. 2941.48.

               R.C. 2937.16 “When witnesses shall be recognized to appear”

provides:

      When an accused enters into a recognizance or is committed in default
      thereof, the judge or magistrate shall require such witnesses against the
      prisoner as he finds necessary, to enter into a recognizance to appear
      and testify before the proper court at a proper time, and not depart
      from such court without leave. If the judge or magistrate finds it
      necessary he may require such witnesses to give sufficient surety to
      appear at such court.

               R.C. 2937.18 “Refusal of witness to enter into a recognizance”

provides, in part:

      If a witness ordered to give recognizance fails to comply with such
      order, the judge or magistrate 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.

               R.C. 2941.48 “Recognizance of witnesses” provides, in part:
      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.

              Relying on these three statutes, the state argues that the law does not

require that a witness be personally served with a subpoena before a material

witness warrant is issued. We agree that those statutes do not require personal

service of a subpoena. That does not mean, however, that the trial court abused its

discretion by refusing to issue material witness warrants in this case.

              “‘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 v. Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, ¶ 24,

quoting State ex rel. Dorsey v. Haines, 63 Ohio App.3d 580, 581, 579 N.E.2d 541

(2d Dist.1991). Under these facts, the state’s failure to obtain personal service

contributed to its failure to demonstrate probable cause, by oath or affirmation, that

detention was necessary to procure the witnesses’ attendance at trial.

              The state largely relies on Hollins. In Hollins, we found that the trial

court abused its discretion in refusing to grant a material witness warrant to the

state and dismissing the indictment. Unlike here, the material witness in Hollins

acknowledged receipt of a subpoena, and, after receiving the subpoena, told the

prosecutor that she would not testify, hung up on him, and subsequently refused to

answer his calls. Hollins at ¶ 25. After the witness received the subpoena and
demonstrated a refusal to cooperate with the prosecutor, she was also personally

served with a subpoena for a second trial date and did not appear. Id. We found

those facts to sufficiently demonstrate that “court intervention was necessary to

procure her attendance at trial.” Id. at ¶ 26.

               Here, we cannot find that the trial court abused its discretion in

denying the state’s request for material witness warrants. Unlike in Hollins, the

state’s attempts to contact Miller and Ford do not demonstrate probable cause that

warrants were necessary to procure their appearances. In nearly seven months

between the indictment and trial, the state’s only direct contact with the witnesses

occurred before residence service of the trial subpoenas, even though the state had

been granted a continuance to contact Ford and Miller in May 2019 before the

original trial date. After the time for the continuance had passed, on the day of trial,

the state struggled to pinpoint what it had done since the continuance to obtain

personal service or otherwise directly communicate with Miller and Ford about the

trial date.

               By its own summary, the state’s attempts to directly contact either

witness were limited to phone calls that occurred before the continuance was

granted and before residence service of the trial subpoenas. Unlike the witness in

Hollins, who stated her refusal to cooperate after acknowledging receipt of a

subpoena, Ford’s alleged comment to the state that she would not testify and that

Miller did not wish to prosecute occurred before the state even left a subpoena at

Ford’s residence. Further, in that same phone call, Ford also demonstrated some
willingness to cooperate by confirming Miller’s address for the detective.

Accordingly, we do not find it was an abuse of discretion to refuse to issue material

witness warrants.

                We have previously distinguished Hollins and reasoned that it is not

an abuse of discretion to deny a continuance to allow the state to locate a material

witness where the state had not yet obtained personal service on the witness. State

v. Metz, 8th Dist. Cuyahoga Nos. 107212, 107246, 107259, and 107261, 2019-Ohio-

4054, ¶ 85. In Metz, the trial court offered to grant a continuance before the start of

trial to allow the defendants to locate and subpoena their witnesses who they had

not yet served. Counsel declined a continuance at the start of trial even though the

trial court indicated that it would not grant a recess in the middle of trial to allow

defendants time to secure the witnesses. We held:

      On this record, we cannot say the trial court abused its discretion in
      denying the mid-trial request for a continuance and for a material
      witness warrant when the defendants had not yet obtained personal
      service on the witnesses and the court gave the defendants an
      opportunity to secure the witnesses before trial.

Metz at ¶ 89.

                Here, the state was actually granted a continuance before trial, yet still

failed to use that time to secure personal service of subpoenas on Miller and Ford or

otherwise directly contact the witnesses to sufficiently demonstrate that they would

not show up for trial without a warrant. Accordingly, we conclude that the trial court

did not abuse its discretion in refusing to issue the requested material witness

warrants.
               Furthermore, in Hollins, the “state provided a detailed affidavit with

its motion” demonstrating probable cause to issue material witness warrants.

Hollins, 8th Dist. Cuyahoga No. 103864, 2016-Ohio-5521, ¶ 25. Unlike in Hollins,

the state here did not provide any sworn affidavits with any of its motions. In

addition, the state did not provide sworn testimony at the hearing or otherwise.

These requirements are not mere procedural technicalities or formalities. Rather,

they exist to ensure that people are afforded “‘the most fundamental rudiments of

constitutional due process.’” Robinson v. Green, 7th Dist. Mahoning No. 16 MA

0134, 2016-Ohio-5688, ¶ 9, quoting Haines, 63 Ohio App.3d 580, 581 N.E.2d 541

(2d Dist.1991).

      C. Dismissal

               The state also argues that dismissal of the indictment under Crim.R.

48 was an abuse of discretion. The state argues that the indictment was dismissed

solely because Miller and Ford were uncooperative and not present at trial. The

record demonstrates, however, that the state failed to obtain personal service to

compel either witness’s attendance at trial and that it admittedly was not prepared

to proceed without Miller and Ford after already having been granted an earlier

continuance.

               Crim.R. 48(B) provides:

      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.
               Dismissal under Crim.R. 48(B) is appropriate if it “‘serves the interest

of justice.’” Hollins at ¶ 16, quoting Busch, 76 Ohio St.3d at 615, 669 N.E.2d 1125.

In Hollins, we found an abuse of discretion where the trial court dismissed an

indictment without prejudice and refused to issue a material witness warrant for the

victim. Id. at ¶ 18. We reasoned that “the trial court dismissed the case solely

because [the victim] did not want to cooperate with the prosecution” and should

have granted the state’s motion for a material witness warrant. Id. at ¶ 18 and 20.

Here, however, the case was not dismissed solely because the victim did not wish to

prosecute. Rather, the record shows that the trial court complied with Crim.R. 48

and its dismissal was not an abuse of discretion.

                   Eatmon was indicted on December 13, 2017, and entered custody by

March 5, 2019. Eatmon’s trial was originally set for May 15, 2019. On May 13, 2019,

the trial court granted the state’s motion for continuance to give the state more time

to secure the appearances of Miller and Ford, its main witnesses for trial. Trial was

reset for July 9, 2019, which gave the state nearly eight more weeks to secure its

witnesses. Eatmon remained in custody for over four months between March 2019

and July 2019, while the state took no further action to obtain personal service on

Miller and Ford.

               The trial court’s judgment entry in Hollins stated:

      Case is called for trial. Victim did not appear for the second time for
      trial. The states [sic] motion for material witness warrant is denied.
      Case is dismissed without prejudice. Defendant ordered released.

Hollins at ¶ 12.
               Further, in Hollins, the trial court stated:

       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.

Id. at ¶ 11.

               In contrast to Hollins, the judgment entry dismissing the indictment

without prejudice did not rely solely on Miller’s or Ford’s failure to appear. It stated:

       State unable to proceed. State’s witnesses failed to appear for trial for
       a second time. State’s motion for a material witness warrant is denied.
       Case dismissed without prejudice. Defendant ordered released as to
       this case only.

               Although the court here noted, as in Hollins, that the state’s witnesses

had not appeared at trial, it first noted that the state was unable to proceed, thus

providing a valid basis to dismiss the indictment. Whereas the trial court in Hollins

based its dismissal on the victim’s wish to not prosecute, the trial court here relied

on the fact that the prosecution was unable to proceed on the day of trial after it had

already been granted a continuance two months earlier:

       COURT: All right. Well, listen. Back in May, I gave you guys a
       continuance to find your witnesses and get them together. The
       continuance was at the State’s request, and then I set the case for trial
       again today. You still haven’t found your witnesses. They’re still not
       cooperating and that isn’t my issue, so I’m not giving you the
       continuance.

       [STATE]: Well, wait a minute. We have found our witnesses. We know
       where they are.

       COURT: All right.

       [STATE]: They won’t come to court.
      COURT: All right. And I’m not issuing a material witness warrant.

      [STATE]: Well, we’re not ready to proceed.

      COURT: I know. So you’re going to dismiss or I’m going to dismiss.
      How do you want it to go?

      [STATE]: I’m not dismissing.

      COURT: The case is dismissed.

Tr. 22:13-23:14.

               Having reviewed the record, we first find that trial court sufficiently

stated its reasons for dismissal pursuant to Crim.R. 48(B). The transcript and

judgment entry demonstrate that the court dismissed the case because the state had

already been granted a continuance, failed to use that time to attempt secure the

appearances of Miller and Ford, and was still not ready to proceed eight weeks later.

               We next find that the dismissal served the interest of justice and,

therefore, was not an abuse of discretion. We do not find an abuse of discretion in

dismissing an indictment where, as here, the state admitted it was unable to proceed

with its case on the day of trial. See Columbus v. Storey, 10th Dist. Franklin No.

03AP-743, 2004-Ohio-3377, ¶ 11 (“[W]e conclude that the trial court’s dismissal of

the case does not constitute an abuse of discretion when the city was unable to

proceed with its case.”).

               The court held hearings on the state’s motions for material witnesses

and awarded the state an additional eight weeks to personally contact Miller and

Ford and attempt to secure their appearances for trial. The state failed to do so.

While the state was given additional time to contact its witnesses, Eatmon sat in
custody for months. Despite the court’s generosity in granting a continuance to the

state, on the day of trial, the state admitted that it was not prepared to proceed

without Miller and Ford. Contrary to the state’s assertions, the record demonstrates

that the dismissal without prejudice was not based on the witness’ apparent wish to

not prosecute or failure to appear. Rather, the dismissal was based on the state’s

failure to sufficiently demonstrate that the witnesses would not appear at trial and

its representation that it was not able to proceed without those witnesses. We find

that the dismissal under these facts was not unreasonable, arbitrary, nor

unconscionable.

              The state’s sole assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant 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.


__________________________________
MARY EILEEN KILBANE, JUDGE

EILEEN T. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
