State v. Glover

[Cite as State v. Glover, 2026-Ohio-1332.]


                    IN THE COURT OF APPEALS OF OHIO
                     ELEVENTH APPELLATE DISTRICT
                           TRUMBULL COUNTY

STATE OF OHIO,                                      CASE NO. 2025-T-0086
CITY OF WARREN,

                 Plaintiff-Appellant,               Criminal Appeal from the
                                                    Warren Municipal Court
        - vs -

CHRISTOPHER SEAN GLOVER,                            Trial Court No. 2025 CRB 001807

                 Defendant-Appellee.


                            OPINION AND JUDGMENT ENTRY

                                        Decided: April 13, 2026
                                         Judgment: Reversed


Edward C. Czopur, P.O. Box 3313, 407 Boardman-Canfield Road, Suite 3313,
Youngstown, OH 44503 (For Plaintiff-Appellant).

Elizabeth Miller, Ohio Public Defender, and Melissa Seabolt, Assistant Public Defender,
250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Defendant-Appellee).


EUGENE A. LUCCI, J.

        {¶1}     Appellant, the State of Ohio/City of Warren (“the State”), appeals the

interlocutory judgment of the Warren Municipal Court, overruling its motion to dismiss the

charge of aggravated menacing against appellee, Christopher Sean Glover. The State

maintains, and Mr. Glover agrees, that the trial court erred when it determined the State

lacked good cause to dismiss the charge based upon insufficient evidence. We conclude,

under the circumstances of this matter, the trial court abused its discretion when it

overruled the State’s motion. The phrase “abuse of discretion” is one of legal art, implying
a judgment exercised which neither comports neither with reason, nor the record. See,

e.g., State v. Marcellino, 2019-Ohio-4837, ¶ 23 (11th Dist.).

       {¶2}   On October 5, 2025, Warren Township officers responded to a 911 call from

an unidentified female for an unknown disturbance. Mr. Glover was apparently staying at

a friend’s home which is near the residence of the alleged victim (“A.H.”). Officers arrived

and noticed Mr. Glover arguing with A.H. and her father (“C.H.”). Mr. Glover subsequently

walked to his friend’s home, entered, and closed the door.

       {¶3}   Officers interviewed A.H. and C.H. and learned that A.H. had a civil

protection order against Mr. Glover and, during the exchange between C.H. and Mr.

Glover, the latter revealed “from his hoodie pocket the butt of a gun.” According to

statements at the scene, C.H. was not in fear of Mr. Glover and that, after he “show[ed]

me he’s armed,” “he walked away . . . .” Apparently, C.H. confronted Mr. Glover to

“deescalate” any potential situation, and he had no fear of Mr. Glover because “Mr. Glover

and [C.H.’s] daughter are constantly engaged in altercations, and [C.H.] just wanted them

separated at that point.” During her interview with responders, A.H. also represented she

did not experience any fear of Mr. Glover during the encounter.

       {¶4}   During a pretrial hearing, the prosecutor interviewed A.H. regarding the

incident. According to the State, “[w]e took her into the office with us, and I was very direct

and clear with her, and . . . what she told us is that she did not see a gun. She never saw

a gun. She believes when her father, [C.H.,] approached Mr. Glover in the roadway, she

believes she was inside the house at the time.” A.H. explained that she subsequently

exited the house due to her concern that C.H. and Mr. Glover were having a confrontation.

A.H. emphasized, however, “[s]he didn’t see the gun.” The record suggests that it was at



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Case No. 2025-T-0086
this point Mr. Glover retreated from the front of A.H.’s home and returned to his friend’s

residence.

       {¶5}   The responding officers filed a report charging Mr. Glover with violating a

protection order, in violation of R.C. 2919.27(A) and (B), a misdemeanor of the first

degree. Additionally, an unnamed prosecutor, after speaking with officers about the

incident, elected to file an additional charge of aggravated menacing, in violation or R.C.

2903.21, a misdemeanor of the first degree. The victim listed in the charging instrument

was A.H.

       {¶6}   On November 12, 2025, the State filed a motion for leave to dismiss the

aggravated menacing charge, claiming there was insufficient evidence to establish the

charge beyond a reasonable doubt. In its motion, the State asserted that the alleged

victim of the crime, A.H., admitted she never experienced fear during the incident and,

further, never observed a firearm. Accordingly, the State submitted it could not establish

that Mr. Glover knowingly caused A.H. to believe he would cause her serious physical

harm. Although C.H. observed the firearm, he also asserted he never experienced fear,

and, regardless, Mr. Glover was never charged with aggravated menacing against C.H.

       {¶7}   The trial court held an initial hearing on the motion for leave to dismiss on

November 13, 2025. Counsel for Mr. Glover joined the request for leave to dismiss. The

trial judge, however, denied the request stating that she felt “uncomfortable” dismissing

an aggravated menacing charge where a firearm is involved. The trial court specifically

maintained:

              [T]he mens rea here is knowing, and it’s either knowledge that
              your actions could probably cause a certain result or an
              awareness of the possibility or probability that the actions
              would cause a certain result. So what you’re telling me is that

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Case No. 2025-T-0086
              there was a circumstance where somebody held up their shirt
              in an argument, showed there was a gun, and I’ve looked at
              all the case law on this. And while a victim can take a witness
              stand and say, I wasn’t really afraid, you look at all of the
              surrounding circumstances; such as, was a 911 call placed?
              Was there - - you know, the conduct of the individuals, and so
              I’m looking at this circumstance and I am, quite honestly, very
              uncomfortable outright dismissing this charge for good cause
              when what you’re telling me is - - I don’t think that it really rises
              to the level of good cause.

       {¶8}    The trial court recognized a different prosecutor elected to file the

aggravated menacing charge and advised the State and defense to meet and continue

to discuss the issue. The trial court also suggested that the State could amend the charge

to include C.H. as a victim. From the bench, the trial court observed that “the prosecutor

can review a case and change charges. They can add charges.” The State responded

that, under the circumstances of the underlying charge: “The threatening behavior [A.H.]

wasn’t present for. So if this is while [Mr. Glover’s] arguing with [A.H.] and some threat is

made but directed at [C.H.], that may be a different ball game, but it’s not. It’s a totally

different series of acts . . . .” The State emphasized that the trial was scheduled to proceed

against Mr. Glover. The State further submitted that

              I don’t know what information the prosecutor bringing it in had
              at the time. I know that the only thing they would have had
              available to them is a police report with no indication of any
              threats made and an officer who delivered that police report
              wasn’t on scene. I know that I have two officers on scene who
              will tell me they didn’t find there to be aggravated menacing.

       {¶9}   Notwithstanding this statement, the trial court advised the prosecutor that

“with regard to changing the name of a victim in the matter, that’s certainly something

that’s able to be done, and I believe it’s under Criminal Rule 7, allows the name to be




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Case No. 2025-T-0086
changed for a victim. And what was presented to me and what was presented to me

previous than this week [sic] was that it was a different victim.”

       {¶10} After proceedings concluded, the parties reconvened on November 17,

2025, for an additional pretrial on the request for leave to dismiss. During that proceeding,

the trial court conclusively determined that it found no good cause to dismiss the

aggravated menacing charge. The trial court cited Lakewood v. Pfeifer, 61 Ohio Misc.2d

704 (1991), a municipal court case that denied a prosecutor’s request for leave to dismiss

a domestic violence charge where the prosecutor sought dismissal “without any

supporting factual statements or evidence.” Id. at 709. The trial court determined that

such “a single conclusory legal statement, without factual information, does not provide

the court with a basis for making a decision.” Id. The court in Pfeifer underscored that the

prosecutor failed to offer “any reason for dismissal other than ‘insufficient evidence’

without elaboration.” Id. at 710. The court pointed out that its

              decision to overrule the motion to dismiss in the present case
              should not be taken as the court’s view on the innocence or
              guilt of the defendant. Not only has no evidence been
              presented in this case, but, further, no factual recitation of the
              incident which gave rise to this case has been given to the
              court. Moreover, by asserting insufficient evidence, without
              elaboration, the court is unaware if the lack of evidence is due
              to a missing element of the offense, such as the complaining
              witness not being a member of the defendant’s household for
              the purposes of R.C. 2919.25, the reluctancy of the
              complaining witness to go forward, or merely the prosecutor’s
              lack of belief of the complaining witness.

Pfeifer at 711.

       {¶11} Relying primarily on Pfeifer, the trial court in the underlying matter

concluded it lacked good cause to grant the request to dismiss the aggravated menacing

charge alleging A.H. as a victim. The State filed the instant interlocutory appeal, pursuant

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Case No. 2025-T-0086
to R.C. 2945.67(A) and App.R. 5(C). This court granted the State’s leave to file, and it

now assigns the following as error:

       {¶12} “The trial court abused its discretion when it denied leave to the City to

dismiss the aggravated menacing charge after the City showed ‘good cause’ for

dismissal.”

       {¶13} This matter involves the interplay of the respective roles of two separate but

co-equal branches of our government. “Like the federal Constitution, the Ohio

Constitution creates a system of separation of powers.” TWISM Ents., L.L.C. v. State Bd.

of Registration for Professional Engineers & Surveyors, 2022-Ohio-4677, ¶ 30. “The

‘separation of powers is designed to preserve the liberty of all people.’” Id. at ¶ 31, quoting

Collins v. Yellen, 594 U.S. 220, 245 (2021). Without the separation of powers “‘“there can

be no liberty, where the legislative and executive powers are united in the same person,

or body of magistrates;” or, “if the power of judging, be not separated from the legislative

and executive powers.”’” TWISM Ents. at ¶ 31, quoting The Federalist No. 47, at 251

(James Madison) (Gideon Ed.2001), quoting Montesquieu, The Spirit of Law 181 (1748).

“Each branch of government ‘can exercise such power and such only, as falls within the

scope of the express delegation.’” TWISM Ents. at ¶ 32, quoting Scovill v. Cleveland, 1

Ohio St. 126, 134 (1853).

       {¶14} Federal courts, not the least of which is the United States Supreme Court,

have had occasion to offer insight into these roles while discussing the separation of

powers doctrine. For instance, the Supreme Court of the United States has repeatedly

emphasized that “[w]hether to prosecute and what charge to file or bring before a grand

jury are decisions that generally rest in the prosecutor’s discretion.” (Citations


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Case No. 2025-T-0086
omitted.) United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v.

Hayes, 434 U.S. 357, 364 (1978).

       {¶15} Correspondingly, “judicial authority is . . . at its most limited” when reviewing

the executive’s exercise of discretion over charging determinations. (Citations

omitted.) Community for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C.Cir.

1986); see also Interstate Commerce Comm. v. Bhd. of Locomotive Engineers, 482 U.S.

270, 283 (1987). The decision whether to prosecute turns on factors such as “the strength

of the case, the prosecution’s general deterrence value, the [g]overnment’s enforcement

priorities, and the case’s relationship to the [g]overnment’s overall enforcement plan . . .

.” Wayte v. United States, 470 U.S. 598, 607 (1985). The executive routinely undertakes

those assessments and is accordingly well-equipped to implement these determinations.

       {¶16} By contrast, the judiciary, as the United States Supreme Court has

observed, is generally not “competent to undertake” that sort of inquiry. Id. Indeed, “[f]ew

subjects are less adapted to judicial review than the exercise by the Executive of his

discretion in deciding when and whether to institute criminal proceedings, or what precise

charge shall be made, or whether to dismiss a proceeding once brought.” Newman v.

United States, 382 F.2d 479, 480 (D.C.Cir. 1967). “Judicial supervision in this area” would

also “entail systemic costs . . . .” Wayte at 607. It could “chill law enforcement,” cause

delay, and “impair the performance of a core executive constitutional function.” Id.; United

States v. Armstrong, 517 U.S. 456, 465 (1996). As a result, the “‘presumption of

regularity’” applies to “prosecutorial decisions and, ‘in the absence of clear evidence to

the contrary, courts presume that [prosecutors] have properly discharged their official

duties.’” Armstrong at 464, quoting United States v. Chem. Found., 272 U.S. 1, 15 (1926).



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Case No. 2025-T-0086
       {¶17} It also bears emphasis that the trial court’s reasoning reflected a category

error. By examining whether the surrounding circumstances—the 911 call, the argument,

the display of a firearm—could support a jury’s finding of knowing conduct, the trial court

was performing a sufficiency-of-the-evidence analysis. That function belongs to post-

conviction review, not pre-trial gatekeeping of prosecutorial discretion. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (sufficiency inquiry asks whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt). A

trial court assessing whether the prosecution’s charging decision meets its own

satisfaction at the motion stage is not conducting a preliminary hearing—it is substituting

its own prosecutorial judgment for that of the executive, which is precisely the

constitutional overreach these authorities prohibit.

       {¶18} With these settled points in mind, Crim.R. 48(A) states: “The [S]tate may

by leave of court and in open court file an entry of dismissal of an indictment, information,

or complaint and the prosecution shall thereupon terminate.” Under this rule, the

prosecuting attorney, with the court’s discretionary permission, has the ability to request

“when and which charges should be dropped.” State v. Jones, 2015-Ohio-1818, ¶ 31 (8th

Dist.); see also State v. Jones, 2009-Ohio-1957, ¶ 13 (2d Dist.).

       {¶19} As previously observed, “[t]he [trial] court’s discretion, however, is limited

by the separation of powers—the decision whether to prosecute, and the decision as to

the charge to be filed, rests in the discretion of the prosecuting attorney.” Cleveland v.

Primm, 2017-Ohio-7242, ¶ 5 (8th Dist.), citing State ex rel. Master v. Cleveland, 1996-

Ohio-228, ¶ 15 (“the decision whether to prosecute is discretionary, and not generally

subject to judicial review”); and In re United States, 345 F.3d 450, 454 (7th Cir.



                                       PAGE 8 OF 17

Case No. 2025-T-0086
2003) (“[T]he plenary prosecutorial power of the executive branch safeguards liberty, for,

in conjunction with the plenary legislative power of Congress, it assures that no one can

be convicted of a crime without the concurrence of all three branches. . . . When a judge

assumes the power to prosecute, the number shrinks to two.”). “Broadly interpreting

the Crim.R. 48(A) leave-of-court requirement could be an invitation for the judiciary to

exceed its constitutional role and breach the separation of powers by intruding upon the

plenary prosecution power of the executive branch.” Primm at ¶ 5. The Ohio Supreme

Court has similarly recognized that charging decisions are committed to prosecutorial

discretion and are not generally subject to judicial control. State v. Busch, 76 Ohio St.3d

613, 615 (1996).

        {¶20} Considering these observations, we emphasize that courts counsel against

utilizing statutes and rules in a manner that would impinge on the executive branch’s

constitutionally-rooted primacy over criminal charging decisions. Recourse to federal

cases construing Fed.R.Crim.P. 48(a) is helpful in developing this discussion.1

        {¶21} Fed.R.Crim.P. 48(a) requires a prosecutor to obtain “leave of court” before

dismissing charges against a criminal defendant. That language might be openly read to

permit considerable judicial involvement in the determination to dismiss criminal charges.

This reading, however, is not tenable. Decisions to dismiss pending criminal charges—

no less than decisions to initiate charges and to identify which charges to bring—are

squarely within the realm of prosecutorial discretion. See, e.g., Newman, 382 F.2d at 480.

To that end, “[t]he Supreme Court has declined to construe [Fed.R.Crim.P.] 48(a)’s



1. Fed.R.Crim.P. 48(a) provides, in relevant part, that a dismissal may be made: “By the Government. The
government may, with leave of court, dismiss an indictment, information, or complaint.” The “leave-of-court”
requirement of Ohio’s Crim.R. 48(A), therefore, tracks the language of the federal rule.

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Case No. 2025-T-0086
‘leave-of-court’ requirement to confer any substantial role for courts in the determination

whether to dismiss charges.” United States v. B.G.G., 53 F.4th 1353, 1361 (11th Cir.

2022), quoting United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C.Cir. 2016);

see also Rinaldi v. United States, 434 U.S. 22 (1977).

       {¶22} Rather, and of significant importance, the “principal object of the ‘leave[-]of[-

]court’ requirement” has been understood to be a narrow one—“to protect a defendant

against prosecutorial harassment . . . when the [g]overnment moves to dismiss an

indictment over the defendant’s objection.” (Citations omitted.) Rinaldi at 29, fn. 15. A

court thus reviews the prosecution’s motion under Rule 48(a) primarily to guard against

the prospect that dismissal is part of a scheme of “prosecutorial harassment” of the

defendant through repeated efforts to bring—and then dismiss—charges. Id.

       {¶23} The Fifth Circuit Court of Appeals has also addressed the phrase “leave of

court” in relation to the federal counterpart to Crim. R. 48(A). The court stated:

              [I]t seems altogether proper to say that the phrase “by leave
              of court” in [Fed.R.Crim.P.] 48(a) was intended to modify and
              condition the absolute power of the Executive, consistently
              with the Framer’s concept of Separation of Powers, by
              erecting a check on the abuse of Executive prerogatives. But
              this is not to say that the Rule was intended to confer on the
              Judiciary the power and authority to usurp or interfere with the
              good faith exercise of the Executive power to take care that
              the laws are faithfully executed. The rule was not promulgated
              to shift absolute power from the Executive to the Judicial
              Branch. Rather, it was intended as a power to check power.
              The Executive remains the absolute judge of whether a
              prosecution should be initiated and the first and presumptively
              the best judge of whether a pending prosecution should be
              terminated. The exercise of its discretion with respect to the
              termination of pending prosecutions should not be judicially
              disturbed unless clearly contrary to manifest public interest.

United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).



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Case No. 2025-T-0086
       {¶24} Moreover, in Rinaldi, 434 U.S. at 29, fn. 15, the Supreme Court of the

United States observed,

              The words “leave of court” were inserted in [Federal] Rule
              48(a) without explanation. While they obviously vest some
              discretion in the court, the circumstances in which that
              discretion may properly be exercised have not been
              delineated by this Court. The principal object of the “leave of
              court” requirement is apparently to protect a defendant
              against prosecutorial harassment, e.g., charging, dismissing,
              and recharging, when the Government moves to dismiss an
              indictment over the defendant’s objection . . . But the Rule has
              also been held to permit the court to deny a Government
              dismissal motion to which the defendant has consented if the
              motion is prompted by considerations clearly contrary to the
              public interest.

       {¶25} Additionally, and germane to the analysis of the underlying appeal, the

Eleventh Circuit Court of Appeals has observed:

              The judiciary has a role to play when the government seeks
              to dismiss a prosecution—but it’s a limited one. See United
              States v. Bernard, 42 F.4th 905, 908 (8th Cir.
              2022) (“[A]lthough the district court has some discretion in this
              area, it ‘is sharply limited by the separation of powers balance
              inherent in [r]ule 48(a).’” (quotation omitted)). The “Supreme
              Court has declined to construe [r]ule 48(a)’s ‘leave of court’
              requirement to confer any substantial role for courts in the
              determination whether to dismiss charges.” United States v.
              Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016).

(Bracketed text in original.) B.G.G., 53 F.4th at 1361; see also United States v. Cox, 342

F.2d 167, 171 (5th Cir. 1965) (“The purpose of [Fed.R.Crim.P. 48(a)] is to prevent

harassment of a defendant by charging, dismissing and re-charging without placing a

defendant in jeopardy.”).

       {¶26} Further, in construing the phrase “good cause,” the Eighth Appellate District

succinctly stated: “While insufficiency of proof has always been regarded as good cause

for the nolle prosequi of an indictment[ or charge] . . ., the cases which discuss such a

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Case No. 2025-T-0086
demonstration of good cause indicate that the [S]tate did not simply recite that the

evidence was insufficient, and the [S]tate must state in the record the nature of the

insufficiency.” (Emphasis added.) Lakewood v. Pfeifer, 83 Ohio App.3d 47, 51 (8th Dist.

1992) (“Pfeifer II”) (appeal affirming the judgment issued in Pfeifer, 61 Ohio Misc.2d 704,

cited by the trial court). Consistent with this statement, the Eighth District held

               that to require the trial court to simply accede to the
               prosecutor’s conclusory assertion of insufficient evidence
               would completely nullify the “leave of court” and “good cause”
               provisions of Crim.R. 48(A) and R.C. 2941.33, and would
               render meaningless any true demonstration of good cause.
               We hasten to add, however, that if the prosecution had
               enunciated or the record revealed more than a purely
               conclusory basis for the nolle, then the requirements for the
               nolle should be met.

Pfeifer II at 52.

       {¶27} Two features of Pfeifer fundamentally distinguish it from this case and

render it inapposite. First, the prosecutor in Pfeifer offered no factual basis whatsoever

for dismissal—only a bare recitation of “insufficient evidence” without elaboration. Here,

by contrast, the State provided a detailed, element-by-element recitation of the

evidentiary deficiency: identifying the named victim’s denial of fear, her denial of having

observed a firearm, the absence of corroboration from two on-scene officers, and the

foundational impossibility of proving the “knowing” mens rea element as charged.

Second, in Pfeifer, the defendant did not join the request for dismissal. Here, both parties

agreed that the charge should be dismissed. A motion joined by both the prosecution and

the defense implicates none of the “prosecutorial harassment” concerns that the leave-

of-court requirement was designed to guard against. Pfeifer thus has no analogical

purchase on the facts before us.



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Case No. 2025-T-0086
        {¶28} In this case, the prosecutor provided significantly more than mere

conclusory statements to undergird her request for leave to dismiss the aggravated

menacing count listing A.H. as a victim.

        {¶29} Aggravated menacing, under these circumstances, required proof, beyond

a reasonable doubt, that Mr. Glover knowingly caused A.H. to believe that he would cause

her or her property serious physical harm. See R.C. 2903.21(A); see also Municipal Court

complaint (Mr. Glover “did knowingly cause [A.H.] to believe that the said Christopher

Glover would cause serious physical harm to the person or property of [A.H.]”).

        {¶30} In seeking leave to dismiss, the prosecutor emphasized that neither C.H.

nor A.H. experienced any fear during the encounter with Mr. Glover. Although A.H.

(presumably) called 911 due to Mr. Glover’s appearance at her residence, the call did not

include any factual foundation for an emergency.2 Although the trial court appears to have

treated the 911 call as circumstantial evidence of A.H.’s fear, this inference is undermined

by a threshold evidentiary problem: the caller was unidentified and was never confirmed

to be A.H. An inference of the named victim’s subjective fear cannot be reliably drawn

from an anonymous 911 call. It was later determined, however, that A.H. had a civil

protection order against Mr. Glover, a violation of which was ultimately filed. According to

the prosecutor, A.H. was in the home until officers arrived, and she did not observe, at

any point, Mr. Glover flash let alone brandish a firearm. C.H. asserted he did observe Mr.

Glover flash the firearm from the pocket of his hoodie; after Mr. Glover did so, however,

C.H. stated Mr. Glover left the scene and returned to his friend’s residence. And, the State

submitted that two, on-scene responding officers could not attest that Mr. Glover engaged



2. The 911 caller, while a female, was unidentified.

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Case No. 2025-T-0086
in aggravated menacing against A.H. Finally, in its factual recitation to the court in support

of its motion for leave to dismiss, the State emphasized that A.H. firmly maintained she

neither saw a firearm in Mr. Glover’s possession nor was in fear that Mr. Glover would

cause her any harm.

       {¶31} Because A.H. was the only alleged victim in this case, she stated she was

not in fear of physical harm (let alone serious physical harm) from Mr. Glover, and she

did not observe Mr. Glover with a firearm, we conclude there was “good cause” for the

State to seek leave to dismiss the aggravated menacing charge against him. In other

words, the State fundamentally demonstrated it lacked sufficient evidence to prove

beyond a reasonable doubt that Mr. Glover knowingly caused A.H. to believe he would

cause her serious physical harm (or any such harm to her property). The trial court erred

in denying the State leave to dismiss that charge under Crim.R. 48(A). Applying the

governing standard articulated in Cowan, there is nothing in this record suggesting that

dismissal would be “clearly contrary to manifest public interest.” 524 F.2d at 513. To the

contrary: the named victim denied both the fear and the observation of a weapon essential

to the charge, the defendant joined the motion, and both on-scene officers declined to

attest to the conduct alleged. No cognizable public interest is served by compelling

prosecution of a charge whose foundational element the alleged victim herself refutes.

       {¶32} This conclusion is further reinforced by Ohio’s constitutional guarantee of

victims’ rights. Ohio Const. Art. I, § 10a (Marsy’s Law) affords crime victims the right to

be heard and to be treated with fairness throughout criminal proceedings. A.H.—the only

named victim in this case—not only declined to support the prosecution but affirmatively

represented that she experienced no fear and did not observe a firearm. Compelling



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Case No. 2025-T-0086
prosecution of a charge over the unambiguous objection of the sole named victim inverts

the very framework Marsy’s Law was designed to establish. It serves neither justice nor

the victim herself.

       {¶33} That said, the trial court essentially advised the State, at the November 13,

2025, pretrial hearing, that it could amend the charge to allege C.H. as a victim. Although

this point is tangential to the issue before us on appeal, it also invokes a separation of

powers concern.

       {¶34} We caution a judge (a member of the judicial branch of government) against

advising a prosecutor (a member of the executive branch of government), who has

plenary power to exercise discretion to charge or allege criminal malfeasance, to

supplement or amend a charge. See In re United States, 345 F.3d at 454 (when a judge

takes the role of prosecutor, the tripartite and co-equal powers of the government reduce

to two therefore eliminating the prosecution’s plenary discretionary power to charge a

crime).

       {¶35} Lawyers, let alone judges, take an oath to uphold the constitution. This

fundamentally embraces upholding the well-established concept of a separation of

powers in government. By virtue of this oath, and the rules of judicial conduct (see, e.g.,

Jud.Cond.R. 1.2, requiring judges to act in “a manner that promotes public confidence in

the independence, integrity, and impartiality of the judiciary, and [to] avoid impropriety

and the appearance of impropriety”; see also Jud.Cond.R. 2.6 (requiring judges to accord

every person who has a legal interest in a proceeding the right to be heard according to

law—a principle that implies judicial neutrality as to how proceedings are conducted, not

active steering toward outcomes the court personally prefers)), a judge must avoid



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Case No. 2025-T-0086
potential trespasses onto the executive branch’s domain. A judge has a legal and ethical

duty to respect the role of the executive branch in charging an individual with a crime. As

emphasized, prosecutorial discretion resides in the executive branch, not in the judicial

branch. While that discretion is subject to review (to protect a defendant’s constitutional

rights), it is not unlimited, and it is not the judge’s role to exhort or even advise a

prosecutor in the manner that the executive officer elects to exercise his or her discretion.

       {¶36} The prosecutor could decide to charge Mr. Glover with aggravated

menacing against C.H. That decision, however, is not within the trial court’s bailiwick or

even potential authority. The charge in this matter was against Mr. Glover against the

alleged victim, i.e., A.H. Given the State’s representations of fact on record, good cause

existed for the trial court to enter a nolle prosequi on the aggravated menacing charge

against A.H. The trial court, in recognition of the essential lack of evidence, should have

granted the State’s motion. Moreover, the trial court, in the interest of remaining neutral

and not creating an appearance of impropriety, as well as upholding and respecting the

separation of powers doctrine, should have refrained from commenting or advising the

State regarding any amendment to the underlying charges.

       {¶37} The State’s assignment of error is with merit.

       {¶38} The judgment of the Warren Municipal Court is reversed.



JOHN J. EKLUND, J.,

ROBERT J. PATTON, J.,

concur.




                                       PAGE 16 OF 17

Case No. 2025-T-0086
                                JUDGMENT ENTRY



       For the reasons stated in the opinion of this court, appellant’s assignment of error

is with merit. It is the judgment and order of this court that the judgment of the Warren

Municipal Court is reversed.

       Costs to be taxed against the parties equally.




                                                JUDGE EUGENE A. LUCCI



                                                JUDGE JOHN J. EKLUND,
                                                       concurs



                                               JUDGE ROBERT J. PATTON,
                                                       concurs


           THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

    A certified copy of this opinion and judgment entry shall constitute the mandate
              pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.




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Case No. 2025-T-0086