[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.
State v. Lycan
Combined Opinion