By disregarding the requirements of the law, these officers invalidated the complaints they filed on behalf of the victim, deprived the municipal court of jurisdiction, and secured the dismissal of Mr. Nerswick’s domestic-violence conviction.
State v. Nerswick
First District Appellate Court
May 21, 2025
Why is this case important?
State v. Nerswick serves as a reminder that procedural requirements matter. The First District vacated a domestic violence conviction not because the evidence was insufficient, but because officers failed to properly administer and document the oath required for the criminal complaints. For Ohio law enforcement, the lesson is simple: when filing criminal complaints, ensure that time is taken to properly notarize each affidavit.
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Background
On May 7, 2023, two criminal complaints, along with a supporting affidavit, were filed against Mr. Nick Nerswick in the Hamilton County Municipal Court. The complaints charged Mr. Nerswick with domestic violence against and the assault of his estranged (now former) wife, in violation of O.R.C. §2919.25 and §2903.13. All three documents were signed by a single complainant/affiant, Officer #1. All three bore the signature and seal of Police Officer #2 on the line reserved for a “Notary Public/Deputy Clerk,” indicating that Officer #1 had “[s]worn to and subscribed” the documents in Officer #2’s presence.
Note: Officer #1 and Officer #2 are identified in the case but are redacted in this article.
Mr. Nerswick is Convicted of Domestic Violence and Sentenced to Six Months
After a bench trial, the municipal court found Mr. Nerswick guilty of both offenses and merged the assault charge into the domestic-violence charge. The court sentenced Mr. Nerswick to 180 days’ incarceration, crediting him for the 24 days he had already served and suspending the remainder of the sentence. The court also placed Mr. Nerswick on two years’ probation. Mr. Nerswick timely appealed.
Appeal – Criminal Complaints were Not Notarized
In his first assignment of error, Mr. Nerswick asserts that the trial court “lacked subject matter jurisdiction over these charges.” Specifically, he argues that “the complaints and affidavits were not properly notarized under oath as required by Crim.R. 3(A) and as needed to invoke the jurisdiction of the municipal court.” The State concedes this error in its brief. While the State’s confession of error does not bind this court, we may nevertheless “accept the concession as part of our analysis,” so long as it has a sound basis in law and fact. See State v. Hermes, 2023-Ohio-2011, ¶ 26 (6th Dist.); see also Young v. United States, 315 U.S. 257, 258, 62 S. Ct. 510, 86 L. Ed. 832 (1942). In this case, the State’s confession of error is well-founded.
Established Case Law – Criminal Complaints
While the State may prosecute felonies only by indictment or information, the Ohio Rules of Criminal Procedure allow the prosecution of misdemeanors “by complaint . . . in courts inferior to the court of common pleas.” Crim.R. 7(A). Filing a criminal complaint is an act of jurisdictional significance. “The filing of a complaint invokes the jurisdiction of the municipal court,” and if a “complaint is not filed in a case, the trial court has not
obtained jurisdiction over it.” City of Zanesville v. Rouse, 126 Ohio St. 3d 1, 2010-Ohio-2218, ¶ 5, 929 N.E.2d 1044, vacated in part on other grounds, 126 Ohio St. 3d 1227, 2010-Ohio-3754, 933 N.E.2d 260; accord State v. Bess, 2012-Ohio-3333, ¶ 8 (1st Dist.). A criminal complaint must (1) include “a written statement of the essential facts constituting the offense charged,” (2) cite “the numerical designation of the applicable statute,” and (3) “be made upon oath before any person authorized by law to administer oaths.” Crim.R. 3(A); accord Bess at ¶ 6.
Established Case Law – Upon Oath
This case turns on the last requirement—that the complaint be made “upon oath.” If a court determines that a criminal complaint was not made under a proper oath, then it “must find the complaint defective and dismiss the case for lack of jurisdiction.” State (City of Riverside) v. Daly, 2021-Ohio-873, ¶ 14 (2d Dist.).
As is the case with affidavits and other sworn documents, courts generally accept a criminal complaint as duly sworn if it was signed by an official authorized to administer the oath. See State v. Davies, 2013-Ohio-436, ¶ 25 (11th Dist.). A notary’s signature and seal are evidence to prove that a complainant swore to the truth of their complaint. See id. at ¶ 24 (“[A] jurat is merely a certificate which is intended to establish that the oath was duly administered by a duly authorized individual.”); Stern v. Bd. of Elections, 14 Ohio St.2d 175, 181, 237 N.E.2d 313 2 Although Officer #2’s signatures on the documents are not legible, we can be certain they came from Officer #2’s hand based on footage from Officer #1’s body-worn camera, as we explain later in this opinion.
Several of the illegible signatures on the notary/clerk/judge lines appeared next to “#59.” (1968) (jurat bearing notary’s signature and seal is “prima facie evidence of the fact that the affidavit was properly made before such notary“). But even when a complaint is not notarized, it may still comply with Crim.R. 3 if it is evident that the complaint was “made upon oath” by someone “authorized by law to administer oaths.” See State v. Taylor, 2015-Ohio-819, ¶ 10-12 (12th Dist.) (“While the complaint . . . was not notarized, it was nonetheless signed by the deputy clerk of the Hamilton Municipal Court, who was authorized to administer the oath required by Crim.R. 3.”). The text of Crim.R. 3(A) is concerned with the oath itself, not merely the manner of its verification.
Peace Officer to Administer Oath or Take Acknowledgement – O.R.C.§2935.081
In this case, the complaints and affidavit bore Officer #2’s signature and seal, by which Officer #2 attested that the documents had been “[s]worn to and subscribed” by Officer #1 in his presence. Officer #2’s seal, which took the form of a round ink stamp, bore the words, “PEACE OFFICER,” in the middle, and the words, “AUTHORIZED TO ADMINISTER OATHS PURSUANT TO O.R.C. 2935.081,” along its circumference. The Revised Code section cited by the seal empowers certain peace officers, after training and designation, to “administer oaths and acknowledge criminal and juvenile court complaints, summonses, affidavits, and returns of court orders in matters related to the peace officer’s official duties.” O.R.C.§ 2935.081(B).
Body Worn Camera Video
Standing alone, Officer #2’s signature and seal would likely be enough to show that Officer #1 made his complaints under oath and signed the documents in Officer #2’s presence. But Mr. Nerswick points us to Officer #1’s body-worn-camera video from the night Officer #1 responded to the home of Mr. Nerswick’s ex-wife, which was admitted into evidence at trial, to rebut this presumption.
Officer #2 Notarizes Blank Criminal Complaints
In the video, a police officer, identified as Officer #2 by the name on his uniform, can be seen at the window of Officer #1’s cruiser. Officer #2 is signing and stamping what he describes to Officer #1 as an assault complaint and affidavit, which he has brought with him from his own vehicle. Officer #2 explains to Officer #1, “What I’m doing is I’m going to notarize these. Then you’ll just need to sign them. Then you can just go straight down from here to the jail.” Officer #1 then pulls out a third form—a visibly blank domestic violence complaint—which he hands to Officer #2 for his stamp and signature. Officer #2 obliges before handing it back to Officer #1 with the whole stack of papers and cautioning him that the forms “still need to be filled out.” Officer #1’s camera shows that the domestic-violence complaint atop the stack remains blank, apart from Officer #2’s signature, seal, and date. Officer #1 places the stack on his vehicle’s dashboard without signing them. Shortly thereafter, Officer #2 departs.
A notary public could have his commission revoked for such actions.
The body-worn-camera footage does not show Officer #1 taking any oath or signing any of the documents. Thus, contrary to Officer #2’s attestations by signature and seal, the complaints and affidavit were neither “[s]worn to” nor “subscribed” at the time Officer #2 put pen to paper. Officer #2’s attestations to that effect were therefore false, and his signature on those documents a nullity. A notary public could have his commission revoked for such actions. See O.R.C. §147.141(A)(8) (“A notary public shall not . . . [a]ffix the notary’s signature to a blank form of an affidavit or certificate of acknowledgment and deliver that form to another person with the intent that it be used as an affidavit or acknowledgment . . . .”); see also former O.R.C. §147.14 (providing that, at the time these complaints were filed, any notary who “certif[ied] to the affidavit of a person without administering the appropriate oath or affirmation to the person . . . shall be removed from office by the secretary of state“). An attorney, too, would risk serious reprimand for notarizing an affidavit to be signed and completed outside their presence. See, e.g., Dayton Bar Ass’n v. Brown, 124 Ohio St. 3d 221, 2009-Ohio-6424, ¶ 10-14, 23, 921 N.E.2d 220 (imposing sanctions on attorney in part for signing and mailing affidavits for a client to sign outside his presence); Cincinnati Bar Ass’n v. Thompson, 129 Ohio St. 3d 127, 2011-Ohio-3095, ¶ 3-5, 950 N.E.2d 550 (upholding consent-to-discipline agreement for attorney who stipulated to notarizing documents to be signed outside his presence).
The administration of oaths is thus a matter “of substance, not form,”
Oaths are not vain formalities. They “‘lay[] hold of the conscience of the witness, and appeal to his sense of accountability,'” in the hope of “‘best insur[ing] the utterance of truth.'” State v. Ballou, 21 Ohio App.2d 59, 61, 254 N.E.2d 697 (1st Dist. 1969), quoting Clinton v. State, 33 Ohio St. 27, 33 (1877). Oaths carry legal, as well as moral heft, as they threaten to “expose [the declarant] to the penalty of a prosecution for perjury if he testifies falsely and corruptly.” State ex rel. Ross v. King, 70 Ohio Law Abs. 554, 556, 129 N.E.2d 103 (C.P. 1955). The administration of oaths is thus a matter “of substance, not form,” and constitutes “an essential component of . . . legal proceedings.” See State v. Tye, 2001 WI 124, ¶ 19, 248 Wis. 2d 530, 636 N.W.2d 473.
We are therefore troubled by the casual disregard the officers in the video showed for the duties.
We are therefore troubled by the casual disregard the officers in the video showed for the duties that come with the power to administer oaths under Ohio law, and for the safeguards and formalities of the legal process. By disregarding the requirements of the law, these officers invalidated the complaints they filed on behalf of the victim, deprived the municipal court of jurisdiction, and secured the dismissal of Mr. Nerswick’s domestic-violence conviction.
Conclusion and Holding
Given the “public trust reposed in [the State’s] law enforcement officers” to see that justice be properly done, the State was right to confess this error. See Young, 315 U.S. at 258. We accept that confession and sustain Mr. Nerswick’s first assignment of error.
For the foregoing reasons, we vacate the judgment of conviction and remand the cause to the municipal court with instructions to dismiss the complaints against Mr. Nerswick for lack of jurisdiction. See R.C. 2501.02(C) (courts of appeals “shall have jurisdiction upon an appeal . . . to review, affirm, modify, set aside, or reverse judgments or final orders“. Because this disposition renders Mr. Nerswick’s other assignments of error moot, we do not address them.
Information for this article was obtained from State v. Nerswick, 2025 – Ohio – 1802.
State v. Nerswick, 2025 – Ohio – 1802 was issued by the First District Appellate Court on May 21, 2025 and is binding in Hamilton County, Ohio.
Lessons Learned
Fourth Amendment – On Thursday December 15, 1791 the Bill of Rights of Ratified to include the Fourth Amendment. The third part of the Fourth Amendment addresses Oath or Affirmation – “… and no warrant shall issue except with probable cause, supported by oath or affirmation …”
What is Oath or Affirmation?
The affiant-officer must swear or affirm that the facts in the affidavit are true to the best of their knowledge. A filed warrant is presumed to be supported by an oath or affirmation, but this presumption is rebuttable; defense counsel may offer evidence that no oath was administered.
The requirement that a warrant not issue “but upon probable cause, supported by Oath or affirmation,” would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, Franks v. Delaware, 438 U.S. 154, 168 (1978)
The uncontested evidence is that for at least 17 years, deputy clerks in the Toledo Municipal court have not determined probable cause before issuing arrest warrants – a flagrant Fourth Amendment violation. State v. Hoffman, 2014 – Ohio – 4795 [Supreme Court of Ohio]
Peace Officer to Administer Oath or Take Acknowledgement – O.R.C. §2935.081(B) states “A peace officer who has completed a course of in-service training that includes training in the administration of oaths and the acknowledgment of documents … may administer oaths and acknowledge criminal and juvenile court complaints, summonses, affidavits, and returns of court orders in matters related to the peace officer’s official duties.” Effective March 23, 2018
Can Law Enforcement Notarize a Blank Criminal Complaint? NO! O.R.C. §2935.081(B) permits properly trained peace officers to administer oaths and acknowledge criminal complaints. That authority carries the same responsibility as a notary public. Officers exercising that authority must ensure the oath is administered and the documents are signed in their presence. Additionally, notaries and law enforcement officers administering oaths cannot notarize a blank document. In this case the court explained “Officer #2 explains to Officer #1, “What I’m doing is I’m going to notarize these. Then you’ll just need to sign them. Then you can just go straight down from here to the jail.” Officer #1 then pulls out a third form—a visibly blank domestic violence complaint—which he hands to Officer #2 for his stamp and signature. Officer #2 obliges before handing it back to Officer #1 with the whole stack of papers and cautioning him that the forms “still need to be filled out.”.
Body-Worn Camera – The prosecution’s problem in this case was not discovered through testimony. It was discovered through body-worn camera video that captured the officer signing and stamping blank complaints before they were completed or sworn to. Body camera video documents not only criminal conduct but also an officer notarizing blank criminal complaints.
Room for Improvement – Law enforcement has THE hardest job in America and this case demonstrates just how demanding a patrol shift can be. In this incident, the officers arrested Mr. Nerswick for domestic violence, an offense that often involves some of the most dangerous arrests officers face. After the arrest, they were required to complete a significant amount of paperwork. While it is human nature to take shortcuts, both Ohio law and established case law require officers to properly notarize each criminal complaint. By taking a shortcut and notarizing blank criminal complaints before they were signed and sworn to, the officers invalidated the criminal complaints. As a result, Mr. Nerswick’s domestic violence conviction was overturned.
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