[Cite as State v. Lycan, 2019-Ohio-689.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                     :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 2018CA00059
                                                :
 CARLA LYCAN                                    :
                                                :
                                                :
        Defendant-Appellee                      :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Canton Municipal
                                                    Court, Case No. 2018 CRB 0254



JUDGMENT:                                           REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                             February 19, 2019




APPEARANCES:

 For Plaintiff-Appellant:                           For Defendant-Appellee:

 KRISTIN BATES-AYLWARD                              JEFFREY JAKMIDES
 CANTON LAW DEPARTMENT                              325 East Main St.
 BEAU D. WENGER                                     Alliance, OH 44601
 218 Cleveland Ave. SW
 Canton, OH 44702
Stark County, Case No. 2018CA00059                                                      2

Delaney, J.

       {¶1} Appellant State of Ohio appeals from the April 23, 2018 judgment entry of

the Canton Municipal Court dismissing the complaint against appellee Carla Lycan.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on January 6, 2018 when the Stark County Grand Jury

transferred this matter to the Canton Municipal Court as two misdemeanor offenses.

Appellee was charged with one count of domestic violence pursuant to R.C.

2919.25(A)(1), a misdemeanor of the first degree, and one count of child endangering

pursuant to R.C. 2919.22(A), also a misdemeanor of the first degree. The complaint

states the offenses against A.S., D.O.B. 3/14/2003, occurred on November 19, 2017. The

complaint follows the language of the statutes and does not specifically state the factual

allegations against appellee.

       {¶3} Appellee entered pleas of not guilty.

                  Family Court Judgment Entries dated September 20, 2017

       {¶4} On March 5, 2018, appellee filed a “Motion to Allow Testimony Regarding

Previous False Statements by the Alleged Abuse Child (sic) Regarding Defendant.” This

motion asked the trial court to permit “testimony regarding previous false statements

made by [A.], the alleged abused child, regarding Defendant” and states in pertinent part:

                     * * * *.

                     The alleged abused child in this case has previously been

              found to have fabricated allegations against this Defendant. In Stark

              County Family Court, case No. 2017 JCV 836 and 2017 JCV 837,

              Dr. James Pritchard testified the allegations made by [A.] were utterly
Stark County, Case No. 2018CA00059                                                       3


             and completely unsupported by the examination at Akron Children’s

             Hospital and the allegations could not be true.

                    Judge James dismissed the allegations of abuse made by A.

             against Defendant, Carla Lycan on September 19, 2017. Magistrate

             Priscilla Cunningham, also, dismissed the allegations of abuse made

             by [A.] about the Defendant, Carla Lycan.

                    Essentially, this child is profoundly developmentally delayed

             and has given profoundly false and impossible statements about this

             Defendant over the past years.

                    The Jury should be made aware that Judge James,

             Magistrate Cunningham and Dr. James Pritchard have twice found

             these allegations unfounded and without merit.

                    WHEREFORE, Defendant respectfully requests the Court

             permit testimony regarding false statements made by the alleged

             abused child.

      {¶5} Attached to this motion are two judgment entries. The first is a Judgment

Entry of the Stark County Court of Common Pleas, Juvenile Division, in case no.

2017JCV00836, In Re: [M.S.], dated September 20, 2017, stating in pertinent part:

                    This matter came before the court for hearing upon

             complaint(s) alleging: Dependent, Neglect, Abuse status.

                    Findings of Fact:

                    This     matter   proceeded   to   trial   in   conjunction   with

             2017JCV00837, In re: [A.S.].
Stark County, Case No. 2018CA00059                                                  4


                  Both children are in the custody of their maternal aunt and

           uncle who have guardianship over their mother.         Their father is

           deceased.

                  Both girls are significantly developmentally delayed.      [A.]

           complained at school of abuse whereupon SCDJFS intervened on

           both girls’ behalf.   The children were medically evaluated and

           received a psychological trauma evaluation by a Psychology

           Assistant at NEOBH.

                  The custodian has voluntarily obtained counseling, support

           systems, and psychological guidance to remedy the safety concerns

           held by the girls.

                  The evidence admitted in this case indicates that [A.] told

           interviewers that she was subjected to abuse in the form of choking,

           name calling and being forced to stand in the corner for long periods

           of time. She also complained that she was deprived of food and

           privileges. [M.] also complained about the aunt’s discipline, choking

           and slapping. The trauma evaluation concludes that both girls have

           Adjustment Disorder with Anxiety and that their stories were

           independently consistent enough to suggest their credibility [sic].

                  Importantly, the court did not have the benefit of testimony

           from the girls. Evidence was present to suggest that given their

           disabilities, the girls have difficulty presenting accurate detail
Stark County, Case No. 2018CA00059                                                     5


           specifically with regard to time and duration also that they are

           inclined to embellish stories to garner attention.

                  The girls’ medical examinations do not show [unusual] injuries

           consistent with abuse.

                  After taking sworn testimony * * * t]he court finds:

                  Disposition:

                  Juvenile Rule 29(E)(4) and RC 2151.35(A) require a less

           demanding standard of proof—“clear and convincing” evidence in

           abuse, neglect and dependency cases. A preponderance of the

           evidence in this case suggests that the children were subjected to

           abusive treatment by their aunt but does not rise to the degree of

           proof so as to produce in the mind of the trier of facts a firm belief or

           conviction as to the facts sought to be established. See State v.

           Schiebel, 55 Ohio St.3d 71 (1990). As such, this court does not find

           the allegations of abuse or neglect to have been proven.

                  With regard to the allegation of dependency, the court does

           find that the girls’ psychological diagnosis supports the need for

           services, because the custodians have voluntarily engaged

           psychological services and other assistance, the court does not find

           that the children’s condition is such as to warrant the state’s

           assumption of custody. The allegation of dependency is not proven.

                  Case dismissed. Pre-adjudicatory orders are vacated.

                  * * * *.
Stark County, Case No. 2018CA00059                                                        6


       {¶6} The second entry attached to the motion is a Judgment Entry of the Stark

County Court of Common Pleas, Juvenile Division, in case no. 2017JCV00837, In Re:

[A.S.], dated September 20, 2017, which is identical to the entry in 2017JCV00836 other

than the names of the children being replaced.

       {¶7} On March 5, 2018, appellee filed a motion in limine seeking to exclude all

hearsay evidence, contending that appellant’s witnesses including a deputy and a

counselor from NEOBH had nothing to offer other than hearsay evidence because they

had no personal knowledge of the incident.

                                  Appellee’s motion to dismiss

       {¶8} Also on March 5, 2018, appellee filed a motion to dismiss stating the

criminal prosecution violates the prohibition against placing a person twice in jeopardy for

the same criminal conduct. The motion further states in pertinent part:

                     * * * *.

                     It is clear from the discovery provided by the State that the

              Canton Law Director’s office is going to re-litigate the allegation that

              the Defendant abused [A.], a profoundly developmentally delayed

              child she has custody of. Defendant has custody of [A.] due to the

              [fact] she is, and has been, the legal guardian of the child’s mother.

              Allegations that Defendant abused [A.] have twice been litigated in

              the Stark County Family Court with identical results [emphasis in

              original]. In both cases the Stark County Family Court did not find

              the evidence sufficient to determine [A.] had been abused by Carla.

              The second time the abuse allegations were litigated the Family
Stark County, Case No. 2018CA00059                                                         7


               Court did find the child, [A.], dependent but not abused.        It is

               noteworthy, the legal standard was lower than proof beyond a

               reasonable doubt.

                      In both instances referenced above, the child, [A.], was

               removed from the custody of Carla Lycan and her home. Certainly

               the state cannot contend this is not punishment. Losing custody and

               control of one’s child is certainly punishment.

                      The State of Ohio, through the Stark County Job and Family

               Services, filed a lawsuit alleging abuse against this Defendant. She

               has twice now been exonerated of this allegation. It simply is Double

               Jeopardy to, now, re-litigate this issue before the Court.

                      * * * *.

         {¶9} The trial court scheduled the three motions for hearing on April 17, 2018.

         {¶10} Appellant responded to appellee’s motion to dismiss on April 10, 2018.

Appellant pointed out that the allegations at issue in the cited judgment entries [involving

case number 2017JCV00837] are not the allegations at issue in the criminal case.

Appellant further stated the allegations in the instant criminal case are the same as those

in Stark County Court of Common Pleas, Family Court Division case number 2017 JCV

1408.1



1 We heard the appeal of the cited case in In re S. Children, 5th Dist. Stark No.
2018CA00040, 2018-Ohio-3559, ¶ 3-4. In that case, we noted the following facts:
       This case arose when Jane Doe passed a note to another student at school stating
she was being hurt at home. Jane was interviewed by a caseworker from the Agency,
police officers, and a social worker at Akron Children's Hospital. Jane's account was
consistent: she said Aunt yelled at her, pulled her hair, grabbed her by the throat, and hit
her head against a refrigerator. Jane said her body “went fuzzy” during the incident and
Stark County, Case No. 2018CA00059                                                       8


       {¶11} Appellant also responded in opposition to appellee’s motion to allow

testimony regarding false statements on April 10, 2018.

       {¶12} Finally on April 10, 2018, appellant filed a motion in limine asking the trial

court to exclude evidence of the Family Court proceedings.

       {¶13} On April 20, 2018, appellant filed a motion to determine admissibility of the

child victim’s statements to a forensic interviewer.

                                  Hearing on motion to dismiss

       {¶14} A hearing was held on April 23, 2018. No evidence was taken and the

parties argued the motion to dismiss. The trial court asked whether the Family Court

found that there was “dependency, but no neglect, no abuse?” and the prosecutor

answered in the affirmative. (T. 4). The trial court asked “[w]hat evidence was available

to the Common Pleas Court at the time of the dependency finding that’s not available at

this time?” and the prosecutor responded that the state was using the “same evidence.”

(T. 6-7). The trial court observed that the instant criminal prosecution constituted a

“collateral attack” on the decision of the Common Pleas Court. (T.8). The trial court

concluded as follows:




she saw black spots. Marks were observed on Jane's neck consistent with fingernail
marks.
       Deputy Simek further investigated Jane's allegations. He too observed the scratch
marks on her neck, a bump on her forehead, and minor redness and bruising on her neck.
Simek spoke to Aunt, who denied the allegations, and to Uncle, who said he was not
home when the incident occurred. Simek arrested Aunt for felonious assault and placed
Jane and Mary Doe into the emergency custody of the Agency. By the time the instant
case proceeded to the evidentiary hearing, the charges were amended to misdemeanor
domestic violence and child endangering but remained pending with a no-contact order.
       * * * *.
       We ultimately affirmed the decision of the trial court granting temporary custody of
[A.] and her sister to Stark County DJFS. Id. at ¶ 43.
Stark County, Case No. 2018CA00059                                                    9


                     Well, it’s a concern to this Court that the Common Pleas Court

             has already made a decision on the same facts, parties, and—and

             the Court that is in the best position to determine the nature of the

             acts and the welfare of the children, which is the ultimate

             responsibility of the Court, is the Family Court. Court’s gonna grant

             the Motion to Dismiss. That’ll be all.

                     T. 12.

      {¶15} On April 23, 2018, the trial court issued a judgment entry stating summarily

that the motion to dismiss was well-taken and therefore granted.

      {¶16} Appellant appealed from the decision of the trial court granting appellee’s

motion to dismiss.

      {¶17} Appellant raises one assignment of error:

                               ASSIGNMENT OF ERROR

      {¶18} “THE MUNICIPAL COURT ERRED IN DISMISSING [APPELLEE’S]

CRIMINAL CHARGES UNDER THE DOUBLE JEOPARDY CLAUSE BECAUSE THE

PREVIOUS FAMILY COURT CASE, WHICH ONLY CONSIDERED THE CARE AND

PROTECTION OF HER FOURTEEN-YEAR-OLD NIECE, WAS NOT A CRIMINAL

PROCEEDING.”

                                       ANALYSIS

      {¶19} Appellant argues the trial court erred in dismissing the criminal charges on

the basis of the family court proceeding. We agree.

      {¶20} We begin by noting that the facts underlying the charges of domestic

violence and child endangering which arose on November 19, 2017 are not in the record
Stark County, Case No. 2018CA00059                                                       10


before us.2 In appellant’s response to appellee’s discovery demand, appellant references

an attached incident report. That report, Stark County Sheriff Department case number

17-46830, is dated November 19, 2017 and names victims and witnesses, but does not

include a narrative statement of the allegations. Further, appellant’s answer to appellee’s

request for a bill of particulars states “see copy or copies of complaint(s) and discovery.”

       {¶21} Additionally, the record before us does not contain the judgment(s) of the

Family Court referenced by the parties and the trial court. Stark County Court of Common

Pleas, Family Court Division case number 2017 JCV 1408 purportedly involved the same

factual allegations at issue in the instant criminal case, per appellant’s argument in the

response to the motion to dismiss. The purportedly-related proceedings in Family Court

were not entered into the record at the hearing on the motion to dismiss.

       {¶22} Both parties make factual allegations in their briefs on appeal which are

therefore not corroborated by the record. Appellant asserts appellee grabbed A.S. by the

neck, hair, and throat, leaving scratch marks. Appellee responds that the investigating

officer lied; records from Akron Children’s Hospital do not corroborate the allegations; and

the Family Court “dismissed the abuse allegation.”

       {¶23} Appellant attached a judgment entry in Stark County Court of Common

Pleas, Juvenile Division, case number 2017JCV01409, which does not contain a

statement of the facts and establishes only that A.S. and her sister were placed in the




2As noted supra, a statement of the facts of the November 19 incident is contained in our
opinion affirming the decision of the Family Court, but those facts do not appear in the
record of the instant case. In re S. Children, 5th Dist. Stark No. 2018CA00040, 2018-
Ohio-3559, ¶ 3-4.
Stark County, Case No. 2018CA00059                                                         11


temporary custody of the Stark County DJFS. Appellee attached a parenting assessment

and an expert opinion, both of which pre-date the allegations in the instant case.

       {¶24} The omissions in the record are significant because we are charged with

reviewing the trial court’s decision to dismiss the criminal complaint for an abuse of

discretion. Although not specifically cited in the dismissal in the instant case, Crim. R.

48(B) provides a means by which a trial court can dismiss a complaint and states, “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.” In addressing the

breadth of Crim.R. 48(B), Justice Pfeiffer in State v. Busch, 76 Ohio St.3d 613, 615, 1996-

Ohio-82, 669 N.E.2d 1125 (1996), acknowledged the rule does not limit the reasons for

which a trial judge might sua sponte dismiss a case, but “may dismiss a case pursuant to

Crim.R. 48(B) if a dismissal serves the interests of justice.”3 We review a trial court’s

decision to dismiss a complaint for an abuse of discretion. State v. Songer, 5th Dist.

Ashland No. 03COA051, 2004-Ohio-1281, ¶ 19, motion for leave to file delayed appeal

granted, 102 Ohio St.3d 1470, 2004-Ohio-2830, 809 N.E.2d 1157, and appeal not

allowed, 103 Ohio St.3d 1477, 2004-Ohio-5405, 816 N.E.2d 254. In order to find an



3       Busch held that a trial judge could sua sponte dismiss a criminal case if the
complaining witness did not wish to proceed, even over objection by the state of Ohio.
Busch at syllabus. This holding was superseded by statute in 1998 when R.C. 2931.03
was amended with the addition of 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.” Although cases may no longer be dismissed solely at the request of the
complaining witness, the reasoning and principles established in Busch continue to be
cited today in reference to the trial court's general authority to dismiss a case pursuant to
Crim.R. 48(B). State v. Sanders, 2013-Ohio-5220, 3 N.E.3d 749, ¶ 15 (7th Dist.), citing
State v. Elqatto, 10th Dist. No. 11AP–914, 2012-Ohio-4303, 2012 WL 4321120; State v.
Congrove, 10th Dist. No. 06AP–1129, 2007-Ohio-3323, 2007 WL 1874249.
Stark County, Case No. 2018CA00059                                                         12


abuse of discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶25} An unreasonable decision is one that is not supported by a sound reasoning

process. State v. Rodriguez, 2nd Dist. Darke No. 1722, 2008-Ohio-3377, ¶ 8, citing AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 553 N.E.2d 597 (1990). An arbitrary attitude is one “without adequate determining

principle,” “not governed or fixed by any fixed rules or standard.” Rodriguez, id., citing

Dayton ex rel. Scandrick v. McGee, 67 Ohio St.2d 356, 359, 423 N.E.2d 1095 (1981).

Where the record includes extensive facts and reasoning explaining why the dismissal

was in the interest of justice, a reviewing court will not find an abuse of discretion. See,

State v. Sanders, 7th Dist. No. 12 CO 35, 2013-Ohio-5220, 3 N.E.3d 749; Rodriguez,

supra, 2nd Dist. Darke No. 1722, 2008-Ohio-3377; State v. Hostetter, 5th Dist. Delaware

No. 12 CAA 08 0059, 2013-Ohio-2000.

       {¶26} Generally, “[a] court has the ‘inherent power to regulate the practice before

it and protect the integrity of its proceedings.’” Busch, supra, 76 Ohio St.3d at 615, quoting

Royal Indemn. Co. v. J.C. Penney Co., 27 Ohio St.3d 31, 33–34, 501 N.E.2d 617 (1986).

The Ohio Supreme Court noted Crim.R. 48(B) does not limit the reasons for which a trial

judge might dismiss a case, therefore the Court concluded a judge may dismiss a case

pursuant to Crim.R. 48(B) if dismissal “serves the interests of justice.” Id. The Court also

stressed the flexibility a trial court should have to devise a solution in a given case, and

went on to state that “[t]rial judges have the discretion to determine when the court has

ceased to be useful in a given case.” Busch, 76 Ohio St.3d at 616.
Stark County, Case No. 2018CA00059                                                           13


       {¶27} Generally, it is an abuse of discretion to dismiss charges under Crim.R.

48(B) solely for the reason that the evidence is insufficient to support conviction. State v.

Nihiser, 4th Dist. No. 03CA21, 2004-Ohio-4067, 2004 WL 1737862, ¶ 17. Nevertheless,

a trial judge is allowed great flexibility in determining when the judicial process is no longer

useful in a given case such that a dismissal under Crim.R. 48(B) is warranted. State v.

Montiel, 185 Ohio App.3d 362, 2009-Ohio-6589, 924 N.E.2d 375, ¶ 15 (2d Dist.).

       {¶28} It is both appropriate and necessary to proffer evidence at a Crim.R. 48(B)

dismissal hearing since it is, by its very nature, an evidentiary hearing. State v. Anguiano,

2d Dist. No.2011 CA 9, 2012-Ohio-2094, 2012 WL 1657549, ¶ 12. The trial court is

required to state on the record its findings of fact supporting the dismissal. Crim.R. 48(B).

Therefore, “[Crim.R. 48(B)] contemplates an evidentiary hearing from which findings of

fact may be made, and which is necessary for subsequent appellate review of any error

assigned by the state regarding an objection by the state that the court overruled.” State

v. Montiel, 185 Ohio App.3d 362, 2009-Ohio-6589, 924 N.E.2d 375, ¶ 22 (J. Grady,

concurring). As noted supra, neither party offered evidence at the hearing.

       {¶29} In the instant case, the trial court’s judgment entry is summary and states

only that the motion to dismiss is well-taken and therefore granted, but the trial court’s

reasoning process may be ascertained from the record of the dismissal hearing. The trial

court noted that the complainant was the same in the both the criminal case and the

Family Court case—the state of Ohio—and that the evidence was the same. The trial

court concluded the criminal action was a collateral attack on the Family Court

proceeding.
Stark County, Case No. 2018CA00059                                                        14


       {¶30} We find the trial court abused its discretion in dismissing the criminal

charges herein. The Family Court proceeding involved a determination of child custody,

not a criminal sanction:

                     In the instant case, appellant was not prosecuted for an

              offense in the juvenile court proceeding. The Juvenile proceeding

              was a determination of the status of the children, and the State was

              not required to prove that appellant violated any criminal statute in

              order to remove the children from the home. The proceeding was not

              filed against appellant. Appellant was not in jeopardy of loss of liberty

              or other criminal sanctions. While appellant was faced with loss of

              custody of the children, the custody award to DHS was not in the

              nature of a criminal penalty against appellant for his actions, but

              rather was based on the status of the children and the parents' ability

              to care for the children properly.

                     Appellant's reliance on Breed v. Jones, [421 U.S. 519, 95

              S.Ct. 1779, 44 L.Ed.2d 346 (1975)], is misplaced. Appellant argues

              that Breed stands for the proposition that an adjudication in Family

              Court bars further criminal proceedings. However, Breed involves a

              determination as to whether the juvenile violated a criminal statute,

              and the consequence from such finding included deprivation of

              liberty. In the instant case, appellant was not on trial in the Family

              Court, and there was no necessity of a finding that appellant violated

              any criminal statute.
Stark County, Case No. 2018CA00059                                                       15

                      State v. Hoff, 5th Dist. Perry No. 99-CA-7, 1999 WL 668804,

              *1.

       {¶31} If a defendant is charged with a criminal offense in juvenile court, then a

subsequent criminal prosecution is barred on double jeopardy grounds, but if the Family

Court proceedings are civil in nature, double jeopardy does not attach to the subsequent

criminal prosecution. Oh. Domestic Violence L., Section 13:14 (Nov. 2018); see also, In

re Jones, 9th Dist. Summit No. 20766, 2002-Ohio-1748 [decision of Family Court

terminating defendant’s parental rights does not constitute punishment for double

jeopardy purposes and does not violate the Double Jeopardy Clauses of the United

States and Ohio Constitutions]; In re Creel, 9th Dist. Summit No. 20066, 2000 WL

1350021, *13 [permanent custody award to CSB is not criminal penalty against

defendant, but rather was based on general welfare of child and defendant’s ability to

properly care for child].

       {¶32} Even if we were to determine the trial court could conceivably dismiss the

criminal charges “in the interest of justice” under its inherent power pursuant to Crim.R.

48(B), we are left with an abuse of discretion on this record. Appellee’s hyperbolic

statements before the trial court about the child victim’s purported lack of credibility and

appellee’s “exoneration” of the allegations in Family Court is not supported by the record.

       {¶33} Appellant’s sole assignment of error is sustained and the judgment of the

Canton Municipal Court is reversed.
Stark County, Case No. 2018CA00059                                                  16


                                    CONCLUSION

       {¶34} The sole assignment of error is sustained; the judgment of the Canton

Municipal Court is reversed; and this matter is remanded to the trial court for further

proceedings consistent with this opinion.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.
