[Cite as State v. Metcalf, 2012-Ohio-4947.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120041 TRIAL NO. 11CRB-36181 Plaintiff-Appellee, :
vs. : O P I N I O N.
JOSHUA METCALF, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 26, 2012
John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and David Sturkey, Assistant City Prosecutor, for Plaintiff-Appellee,
Susannah M. Meyer, and Robert R. Hastings, Jr., Law Office of the Hamilton County Public Defender, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Presiding Judge.
{¶1} Defendant-appellant Joshua Metcalf appeals the judgment of the
Hamilton County Municipal Court convicting him of domestic violence, a misdemeanor of
the first degree.
The Complaint, Affidavit, and Trial
{¶2} Metcalf and Brandy Barrow have a daughter together. On November 19,
2011, Cincinnati Police Officer Jacob Hicks filed a complaint against Metcalf alleging
domestic violence under R.C. 2919.25. In setting forth the basis of the charge, the
document stated, “[t]he complainant states that this complaint is based on the defendant
striking the victim in the forehead with a closed fist.” In the affidavit accompanying the
complaint, Hicks alleged that “Metcalf did knowingly cause harm to Brandy Barrow by
striking her on her forehead with a closed fist. Defendant and victim have a child
together.”
{¶3} Metcalf was arrested pursuant to a warrant issued by the municipal
court, and the case proceeded to a bench trial. At trial, Barrow testified that Metcalf had
punched her after he had discovered that she had been communicating with other men.
The state produced photographic evidence of Barrow’s injury. Metcalf testified that he
had not assaulted Barrow, suggesting that she had fabricated the allegations to gain
leverage in their custody dispute.
{¶4} The trial court found Metcalf guilty and sentenced him to 180 days in jail,
with credit for 27 days served. The court suspended the remainder of the days and placed
Metcalf on community control.
Sufficiency of the Affidavit
{¶5} In his first assignment of error, Metcalf argues that the trial court lacked
jurisdiction because of the alleged deficiency of the affidavit accompanying the
complaint. He contends that the affidavit contained insufficient factual information for
2 OHIO FIRST DISTRICT COURT OF APPEALS
a neutral magistrate to determine that probable cause existed. Therefore, he maintains
that Officer Hicks in effect made the determination that there was sufficient evidence for
the issuance of a warrant.
{¶6} We find no merit in this argument. The filing of a complaint invokes the
jurisdiction of the municipal court. State v. Miller, 47 Ohio App.3d 113, 114, 547 N.E.2d
399 (1st Dist.1988). Under Crim.R. 3, a valid complaint must contain “a written
statement of the essential facts constituting the offense charged” in addition to “the
numerical designation of the applicable statute or ordinance.” Finally, the complaint
must be “made upon oath before any person authorized by law to administer oaths.”
Crim.R. 3.
{¶7} In this case, the complaint fully complied with Crim.R. 3. It cited R.C.
2919.25 and stated that Metcalf had caused physical harm to a person with whom he
had a child. The complaint was sworn to and subscribed before a deputy clerk of the
municipal court. Thus, the trial court had subject-matter jurisdiction.
{¶8} In arguing that the complaint was subject to dismissal, Metcalf in essence
contends that there was a defect in the institution of the prosecution. But Crim.R. 12(C)
provides as follows:
[t]he following must be raised before trial: (1) Defenses and objections
based on defects in the institution of the prosecution; (2) Defenses and
objections based on defects in the indictment, information, or complaint
(other than failure to show jurisdiction in the court or to charge an offense,
which objections shall be noticed by the court at any time during the
pendency of the proceeding.)
Crim.R. 12(H) states that the “[f]ailure by the defendant to raise defenses or objections or
to make requests that must be made prior to trial * * * shall constitute waiver of the
defenses or objections.” (Emphasis added.)
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In the case at bar, Metcalf did not challenge sufficiency of the allegations
to support the warrant in a pretrial motion. Thus, we hold that he waived any challenge to
the allegedly defective affidavit.
{¶10} In doing so, we are guided by the holding of the Supreme Court of
Ohio in State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025. In
Mbodji, the court addressed the issue of whether the failure of the clerk of courts to
forward a privately filed complaint to a neutral “reviewing official” under R.C.
2935.09 divested the municipal court of jurisdiction. The court answered that
question in the negative, holding that the lack of review had been waived by the
defendant’s failure to file a pretrial motion to challenge the institution of the
proceedings. Id. at paragraph two of the syllabus. The court emphasized that “[a]ny
procedural defect in the prosecution or the complaint and associated affidavit
because of the lack of review pursuant to R.C. 2935.09 could have been remedied
through a Crim.R. 12(C) motion.” Id. at ¶ 19.
{¶11} Thus, the procedural protection of having a detached reviewing official
authorize the institution of a criminal proceeding is a safeguard that is waived if not
challenged in a pretrial motion.
{¶12} In arguing for reversal, Metcalf relies heavily on State v. Jones, 7th
Dist. No. 11 MA 60, 2012-Ohio-1301. In Jones, a police officer filed a complaint for
selling alcohol to an underage person without filing an accompanying affidavit. Id. at
¶ 7. The complaint merely contained a statement that the defendant had committed
the offense on a certain date at a certain place, without any statement as to the
source of the officer’s knowledge about the offense. Id. at ¶ 4. The trial court
overruled the defendant’s motion to dismiss based upon the defects in the institution
of the proceedings. Id. at ¶ 13. The Seventh Appellate District reversed the
4 OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s conviction and ordered the warrant quashed based on the lack of
meaningful review of the complaint. Id. at ¶ 61.
{¶13} We find Jones to be distinguishable from the case at bar. The
defendant in Jones preserved her right to challenge the institution of the proceedings
by filing a motion to dismiss under Crim.R. 12(C). Thus, the issue of waiver
addressed in Mbodji was inapplicable. By contrast, Metcalf’s failure to file such a
motion resulted in a waiver of his rights, and we overrule the first assignment of
error.
The Oaths Supporting the Complaint and Affidavit
{¶14} In his second and third assignments of error, Metcalf argues that the trial
court lacked jurisdiction because the complaint and affidavit did not reflect that they
had been sworn before a person authorized to administer an oath. Specifically, he
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[Cite as State v. Metcalf, 2012-Ohio-4947.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120041 TRIAL NO. 11CRB-36181 Plaintiff-Appellee, :
vs. : O P I N I O N.
JOSHUA METCALF, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 26, 2012
John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and David Sturkey, Assistant City Prosecutor, for Plaintiff-Appellee,
Susannah M. Meyer, and Robert R. Hastings, Jr., Law Office of the Hamilton County Public Defender, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, Presiding Judge.
{¶1} Defendant-appellant Joshua Metcalf appeals the judgment of the
Hamilton County Municipal Court convicting him of domestic violence, a misdemeanor of
the first degree.
The Complaint, Affidavit, and Trial
{¶2} Metcalf and Brandy Barrow have a daughter together. On November 19,
2011, Cincinnati Police Officer Jacob Hicks filed a complaint against Metcalf alleging
domestic violence under R.C. 2919.25. In setting forth the basis of the charge, the
document stated, “[t]he complainant states that this complaint is based on the defendant
striking the victim in the forehead with a closed fist.” In the affidavit accompanying the
complaint, Hicks alleged that “Metcalf did knowingly cause harm to Brandy Barrow by
striking her on her forehead with a closed fist. Defendant and victim have a child
together.”
{¶3} Metcalf was arrested pursuant to a warrant issued by the municipal
court, and the case proceeded to a bench trial. At trial, Barrow testified that Metcalf had
punched her after he had discovered that she had been communicating with other men.
The state produced photographic evidence of Barrow’s injury. Metcalf testified that he
had not assaulted Barrow, suggesting that she had fabricated the allegations to gain
leverage in their custody dispute.
{¶4} The trial court found Metcalf guilty and sentenced him to 180 days in jail,
with credit for 27 days served. The court suspended the remainder of the days and placed
Metcalf on community control.
Sufficiency of the Affidavit
{¶5} In his first assignment of error, Metcalf argues that the trial court lacked
jurisdiction because of the alleged deficiency of the affidavit accompanying the
complaint. He contends that the affidavit contained insufficient factual information for
2 OHIO FIRST DISTRICT COURT OF APPEALS
a neutral magistrate to determine that probable cause existed. Therefore, he maintains
that Officer Hicks in effect made the determination that there was sufficient evidence for
the issuance of a warrant.
{¶6} We find no merit in this argument. The filing of a complaint invokes the
jurisdiction of the municipal court. State v. Miller, 47 Ohio App.3d 113, 114, 547 N.E.2d
399 (1st Dist.1988). Under Crim.R. 3, a valid complaint must contain “a written
statement of the essential facts constituting the offense charged” in addition to “the
numerical designation of the applicable statute or ordinance.” Finally, the complaint
must be “made upon oath before any person authorized by law to administer oaths.”
Crim.R. 3.
{¶7} In this case, the complaint fully complied with Crim.R. 3. It cited R.C.
2919.25 and stated that Metcalf had caused physical harm to a person with whom he
had a child. The complaint was sworn to and subscribed before a deputy clerk of the
municipal court. Thus, the trial court had subject-matter jurisdiction.
{¶8} In arguing that the complaint was subject to dismissal, Metcalf in essence
contends that there was a defect in the institution of the prosecution. But Crim.R. 12(C)
provides as follows:
[t]he following must be raised before trial: (1) Defenses and objections
based on defects in the institution of the prosecution; (2) Defenses and
objections based on defects in the indictment, information, or complaint
(other than failure to show jurisdiction in the court or to charge an offense,
which objections shall be noticed by the court at any time during the
pendency of the proceeding.)
Crim.R. 12(H) states that the “[f]ailure by the defendant to raise defenses or objections or
to make requests that must be made prior to trial * * * shall constitute waiver of the
defenses or objections.” (Emphasis added.)
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In the case at bar, Metcalf did not challenge sufficiency of the allegations
to support the warrant in a pretrial motion. Thus, we hold that he waived any challenge to
the allegedly defective affidavit.
{¶10} In doing so, we are guided by the holding of the Supreme Court of
Ohio in State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025. In
Mbodji, the court addressed the issue of whether the failure of the clerk of courts to
forward a privately filed complaint to a neutral “reviewing official” under R.C.
2935.09 divested the municipal court of jurisdiction. The court answered that
question in the negative, holding that the lack of review had been waived by the
defendant’s failure to file a pretrial motion to challenge the institution of the
proceedings. Id. at paragraph two of the syllabus. The court emphasized that “[a]ny
procedural defect in the prosecution or the complaint and associated affidavit
because of the lack of review pursuant to R.C. 2935.09 could have been remedied
through a Crim.R. 12(C) motion.” Id. at ¶ 19.
{¶11} Thus, the procedural protection of having a detached reviewing official
authorize the institution of a criminal proceeding is a safeguard that is waived if not
challenged in a pretrial motion.
{¶12} In arguing for reversal, Metcalf relies heavily on State v. Jones, 7th
Dist. No. 11 MA 60, 2012-Ohio-1301. In Jones, a police officer filed a complaint for
selling alcohol to an underage person without filing an accompanying affidavit. Id. at
¶ 7. The complaint merely contained a statement that the defendant had committed
the offense on a certain date at a certain place, without any statement as to the
source of the officer’s knowledge about the offense. Id. at ¶ 4. The trial court
overruled the defendant’s motion to dismiss based upon the defects in the institution
of the proceedings. Id. at ¶ 13. The Seventh Appellate District reversed the
4 OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s conviction and ordered the warrant quashed based on the lack of
meaningful review of the complaint. Id. at ¶ 61.
{¶13} We find Jones to be distinguishable from the case at bar. The
defendant in Jones preserved her right to challenge the institution of the proceedings
by filing a motion to dismiss under Crim.R. 12(C). Thus, the issue of waiver
addressed in Mbodji was inapplicable. By contrast, Metcalf’s failure to file such a
motion resulted in a waiver of his rights, and we overrule the first assignment of
error.
The Oaths Supporting the Complaint and Affidavit
{¶14} In his second and third assignments of error, Metcalf argues that the trial
court lacked jurisdiction because the complaint and affidavit did not reflect that they
had been sworn before a person authorized to administer an oath. Specifically, he
argues that the documents did not identify the state and county where the oath was
administered and did not specify that the person administering the oath was a
deputy clerk of Hamilton County. We address the assignments of error together.
{¶15} As we have already noted, a complaint must be sworn before a
person authorized to administer oaths. Crim.R. 3. In this case, the documents
demonstrated that the person who notarized both the complaint and the affidavit
had the authority to do so. Both documents were captioned “Hamilton County
Municipal Court” and indicated that the person administering the oath was a deputy
clerk. The complaint included an additional stamp stating, “TRACY WINKLER,
COURT OF HAMILTON CO. MUNICIPAL COURT.” Under these circumstances, the
complaint and affidavit contained sufficient indicia that the oaths were administered
in Hamilton County, Ohio and were therefore valid. We overrule the second and
third assignments of error.
5 OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶16} The judgment of the trial court is affirmed.
Judgment affirmed.
HENDON and CUNNINGHAM, JJ., concur.
Please note:
The court has recorded its own entry this date.