[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