State v. DeVore

2022 Ohio 3314

• Court: Ohio Court of Appeals
• Decided: September 21, 2022
• Docket: 2022-COA-024
• Status: Published

Opinion

[Cite as State v. DeVore, 2022-Ohio-3314.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Earle E. Wise, Jr., P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delaney, J. -vs- : : ADAM M. DEVORE : Case No. 2022-COA-024 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case No. 16-CRB-867

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 21, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW N. BUSH ADAM M. DEVORE, PRO SE 1213 East Main Street P.O.W. 704-923 Ashland, OH 44805 Richland Correctional Institution P.O. Box 8107 Mansfield, OH 44901 Ashland County, Case No. 2022-COA-024 2

Wise, Earle, P.J.

{¶ 1} Defendant-Appellant, Adam M. DeVore, appeals his 2016 conviction on one

count of assault in the Municipal Court of Ashland County, Ohio. Plaintiff-Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On August 5, 2016, a criminal complaint was filed charging appellant with

one count of assault in violation of R.C. 2903.13. A jury trial was held on December 28,

2016. The jury found appellant guilty as charged. By judgment entry filed January 23,

2017, the trial court sentenced appellant to one hundred eighty days in jail.

{¶ 3} Appellant filed an appeal and argued his conviction was against the

manifest weight of the evidence. This court affirmed his conviction. State v. DeVore, 5th

Dist. Ashland No. 17 COA 2, 2017-Ohio-6956.

{¶ 4} On July 6, 2022, appellant filed a motion to dismiss for failure to show

jurisdiction. By judgment entry filed same date, the trial court denied the motion.

{¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 6} "THE ASHLAND MUNICIPAL COURT FOR ASHLAND COUNTY, OHIO,

ERRED BY FAILING TO DISMISS THE SINGLE FORM COMPLAINT WITH SUMMONS

FILE ON AUGUST 5, 2016, FOR LACK OF SUBJECT-MATTER JURISDICTION

WHERE: (1) THE ISSUING LAW ENFORCEMENT OFFICER OF THE SINGLE FORM

COMPLAINT WITH SUMMONS, OFFICER B. KUNZEN, DID NOT SWEAR TO OR

EXECUTE THE JURAT AS REQUIRED; AND (2) THE DEPUTY CLERK WHOM Ashland County, Case No. 2022-COA-024 3

ADMINISTERED AN OATH TO SGT. JOHN SINX COULD NOT HAVE KNOWLEDGE

OR SATISFACTORY EVIDENCE THAT THE PERSON ACKNOWLEDGING THE

SINGLE FORM COMPLAINT WITH SUMMONS (SINX) WAS OFFICER B. KUNZEN,

THE PERSON NAMED IN THE INSTRUMENT, WHICH VOIDS THE

ACKNOWLEDGEMENT AND JURAT AS FRAUDULENT, CONTRARY TO R.C.

147.541(D)."

{¶ 7} In his sole assignment of error, appellant claims the trial court erred in

denying his motion to dismiss for lack of subject matter jurisdiction. We disagree.

{¶ 8} "The standard of review for a dismissal pursuant to Civ.R. 12(B)(1) [lack of

jurisdiction over the subject matter] is whether any cause of action cognizable by the

forum has been raised in the complaint." State ex rel. Bush v. Spurlock, 42 Ohio St.3d

77, 80, 537 N.E.2d 641 (1989). We review an appeal of a motion for dismissal under

Civ.R. 12(B)(1) de novo. Moore v. Franklin County Children Services, 10th Dist. Franklin

No. 06AP-951, 2007-Ohio-4128, ¶ 15.

{¶ 9} Crim.R. 3 governs complaint. Subsection (A) states: "The complaint is a

written statement of the essential facts constituting the offense charged. It shall also state

the numerical designation of the applicable statute or ordinance. It shall be made upon

oath before any person authorized by law to administer oaths." In reviewing the

complaint, we find it complies with the rule. It contains a written statement of the facts

constituting the offense charged, the numerical designation of the applicable statute, and

an oath acknowledged by a deputy clerk. Ashland County, Case No. 2022-COA-024 4

{¶ 10} Appellant argues the complaint is void because the issuing law enforcement

officer ("Kunzen") did not swear to or execute the jurat, and the deputy clerk who

administered the oath had insufficient knowledge to do so.

{¶ 11} The complaint with summons was signed by the issuing officer, "Kunzen."

"Sinx" was the issuing officer who swore he read the complaint and it was true. As stated

by our colleagues from the Third District in State v. Villagomez, 44 Ohio App.2d 209, 211-

212, 337 N.E.2d 167 (3d Dist.1974):

The purpose and function of a complaint is to inform the accused of

the crime of which he is charged. It forms the essential basis of the court's

jurisdiction and the subsequent trial and judgment. It must, therefore,

contain the essential elements required by Criminal Rule 3. Once filed,

however, knowledge of the affiant is immaterial to the criminal cause. The

issue is whether or not the crime was committed, not whether the affiant

had personal knowledge of each element of the offense.

In State v. Biedenharn (1969), 19 Ohio App.2d 204, 250 N.E.2d 778,

it is said in the syllabus:

'Personal knowledge of the commission of an offense is not a

prerequisite to the filing of an affidavit therefor under Section 2935.09,

Revised Code, which provides for accusation by affidavit to cause arrest

(for) prosecution.'

*** Ashland County, Case No. 2022-COA-024 5

Under the rule above cited, it is not necessary that the one signing a

complaint personally know all the facts constituting the elements of the

offense. He may rely upon the testimony and investigation of others to

establish matters not within the orbit of his personal knowledge. Few

persons are personally aware of all elements of an offense and must

necessarily so rely.

In Sopko v. Maxwell (1965), 3 Ohio St.2d 123, at 124, 209 N.E.2d

201, at 202, the Supreme Court states, in a per curiam decision:

'It is not necessary that the affidavit be executed by one who

observed the commission of the offense. It is sufficient if such person has

reasonable grounds to believe that the accused has committed the crime[.]'

{¶ 12} In our review of the complaint and the applicable rules and case law, we do

not find any merit to appellant's arguments.

{¶ 13} The sole assignment of error is denied.

{¶ 14} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Wise, Earle, P.J.

Gwin, J. and

Delaney, J. concur.

EEW/db