[Cite as State v. Walker, 2020-Ohio-4949.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLANT, CASE NO. 14-20-01 

 v. 

TRACEY L. WALKER, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeal from Marysville Municipal Court 

Trial Court No. 19 CRB 00893 

Judgment Reversed and Cause Remanded 

Date of Decision: October 19, 2020 

 

APPEARANCES: 

 

John M. Eufinger for Appellant 

 Charles A. Koenig for Appellee 
Case No. 14-20-01 

-2- 

PRESTON, J. 

{¶1} Plaintiff-appellant, the State of Ohio, appeals the December 3, 2019 

judgment of the Marysville Municipal Court dismissing the criminal complaint 

against defendant-appellee, Tracey L. Walker (“Walker”). For the reasons that 

follow, we reverse. 

{¶2} This case arises from a December 2, 2019 incident in which it was 

alleged that Walker caused or attempted to cause physical harm to his minor child, 

G.W. (See Doc. No. 1). As a result of the incident, a criminal complaint was filed 

in the Marysville Municipal Court on December 2, 2019 charging Walker with a 

single count of domestic violence in violation of R.C. 2919.25(A), a first-degree 

misdemeanor. (Id.). 

{¶3} Later that day, Walker appeared in front of the trial court for an initial 

appearance on the charge. (Doc. No. 3). At the hearing, Walker requested a 

continuance to obtain an attorney. (Id.). Then, the trial court released Walker on 

his own recognizance on the condition that Walker have no contact with the victim 

during the pendency of the case. (Id.). The trial court then scheduled the matter for 

an arraignment hearing on a later date. (Id.). 

{¶4} The following day, the trial court sua sponte dismissed the criminal 

charge without a hearing. (Doc. No. 5). In the journal entry dismissing the case, 

the trial court made the following findings: 
Case No. 14-20-01 

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1) The complaint alleges defendant was exercising reasonable 

parental discipline when [G.W.] struck him. 

2) Defendant then is alleged to have fought with his son. 

3) Case dismissed. No crime is alleged. 

4) [The] [c]ase should have been filed in juvenile [c]ourt as an 

unruly child case or for neglect [and] dependency. 

(Id.). 

{¶5} On January 3, 2020, the State filed its notice of appeal. (Doc. No. 8). 

It raises one assignment of error for our review. 

Assignment of Error No. I 

The trial court abused its discretion when it sua sponte dismissed 

the complaint filed by the State of Ohio. 

{¶6} In its assignment of error, the State argues that the trial court abused its 

discretion by sua sponte dismissing the criminal complaint charging Walker with 

domestic violence without providing it with the opportunity to object to the 

dismissal or provide an argument in opposition to the dismissal. The State further 

argues that the trial court abused its discretion by dismissing the case without a 

hearing and without providing either party with notice of its intention to dismiss the 

case. 

{¶7} We review a trial court’s dismissal of a criminal charge under Crim.R. 

48(B) for an abuse of discretion. State v. Myrick, 3d Dist. Union No. 14-19-27, 
Case No. 14-20-01 

-4- 

2020-Ohio-974, ¶ 6, citing State v. Heard, 12th Dist. Clinton No. CA2016-03-008, 

2017-Ohio-4, ¶ 10 and State v. Elqatto, 10th Dist. Franklin No. 11AP-914, 2012-

Ohio-4303, ¶ 17. An abuse of discretion is more than an error in judgment; rather, 

it implies that the trial court’s attitude was unreasonable, arbitrary, or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “When 

applying the abuse of discretion standard of review, this court is not free merely to 

substitute its judgment for that of the trial court.” Kreitzer v. Anderson, 157 Ohio 

App.3d 434, 2004-Ohio-3024, ¶ 16 (3d Dist.). 

{¶8} Criminal Rule 48, which governs the dismissal of indictments, 

informations, and complaints, provides, in pertinent part, that “[i]f 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.” Crim.R. 48(B). 

Thus, Crim.R. 48 “‘incorporates language clearly envisioning the awareness and 

participation of the state in the dismissal process.’” Myrick at ¶ 7, quoting Huron v. 

Slauterbeck, 6th Dist. Erie No. E-15-026, 2015-Ohio-5022, ¶ 8. 

{¶9} In State v. Myrick, under facts strikingly similar to those in the present 

case, this court held that although a trial court need not necessarily hold a dismissal 

hearing prior to dismissing a criminal complaint under Crim.R. 48(B), “because 

Crim.R. 48 (B) and its corresponding jurisprudence contemplate an opportunity for 

the State to voice its objection (if any), the State must be afforded an occasion to 
Case No. 14-20-01 

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voice its opposition to a dismissal and preserve its argument for appeal.” Myrick at 

¶ 8. 

{¶10} Here, the record indicates that the trial court dismissed the complaint 

the day after it was filed without notifying the parties that it was contemplating 

dismissal of the action. Although a hearing was held just one day before the trial 

court sua sponte dismissed the case, the trial court did not make any statement on 

the record indicating to the parties that it was considering dismissing the action. 

Rather, at the December 2, 2019 hearing, the trial court scheduled the matter for an 

entry of plea hearing at a later date, once Walker had an opportunity to obtain 

counsel. Thus, the State did not have the opportunity to voice its opposition to a 

dismissal and preserve its argument for appeal. Therefore, based on the record 

before us, because the State was not afforded the opportunity to object to the 

dismissal or provide an argument in opposition to dismissal, we conclude that the 

trial court abused its discretion by dismissing the criminal charges against Walker.1

 

Myrick, 2020-Ohio-974, at ¶ 9. 

 

1

 Although we need not address the validity of the trial court’s findings of fact and reasons that it articulated 

in support of its dismissal, we note that in its findings of fact justifying the dismissal of the domestic violence 

complaint against Walker, the trial court stated that “[t]he complaint alleges [Walker] was exercising 

reasonable parental discipline when [G.W.] struck him.” (Doc. No. 5). Accordingly, the trial court dismissed 

the case and stated that “[n]o crime is alleged” in the complaint. However, we caution the trial court that the 

Supreme Court of Ohio has held “that reasonable parental discipline is an affirmative defense to a charge of 

domestic violence under R.C. 2919.25(A) * * *, with the burden of proof resting with the accused pursuant 

to R.C. 2901.05(A).” State v. Faggs, 159 Ohio St.3d 420, 2020-Ohio-523, ¶ 29. See R.C. 2901.05(D)(1)(b) 

(“[A]n ‘affirmative defense’ is * * * [a] defense involving an excuse or justification peculiarly within the 

knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”). 

Thus, reasonable parental discipline is not an element of domestic violence and does not have any bearing 

on the sufficiency of the complaint. Furthermore, “only the charged parent * * * knows and is able to describe 
Case No. 14-20-01 

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{¶11} Thus, the State’s assignment of error is sustained. 

{¶12} Having found error prejudicial to the appellant herein in the particulars 

assigned and argued, we reverse the judgment of the trial court and remand for 

further proceedings consistent with this opinion. 

Judgment Reversed and 

 Cause Remanded 

SHAW, P.J. and ZIMMERMAN, J., concur. 

/jlr 

 

the corrective intent behind the use of corporal punishment and why he or she felt it necessary to resort to 

such means, including, for example, the child’s behavioral history and responses to prior discipline.” Faggs

at ¶ 22. Accordingly, only Walker has the knowledge to properly raise the affirmative defense of reasonable 

parental discipline to the charge of domestic violence.