COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70565 CHESTER L. BRAND, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION BARBARA GEISSBUHLER, ET AL. : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 27, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-274243 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: JULES N. KOACH (#0021702) MONROE & ZUCCO 1525 LEADER BUILDING CLEVELAND, OHIO 44114-1444 For Defendant-Appellees, Barbara Geissbuhler and Goodwill Industries of Cleveland: JOHN F. McCAFFREY (#0039486) MANSOUR, GAVIN, GERLACK, & MANOS 55 PUBLIC SQUARE, SUITE 2150 CLEVELAND, OHIO 44113-1994 For Appellee, City of North Olmsted: JOHN T. McLANDRICH (#0021494) JAMES A. CLIMER (#0001532) MAZANEC, RASKIN & RYDER CO., L.P.A. 100 FRANKLIN'S ROW 34305 SOLON ROAD CLEVELAND, OHIO 44139 SPELLACY, J.: Plaintiffs-appellants Chester L. Brand and Donnalee West ("appellants") appeal the grant of summary judgment for defendants- appellees Barbara Geissbuhler, Goodwill Industries of Cleveland, and the City of North Olmsted. Appellants had brought suit against Geissbuhler and Goodwill Industries for malicious prosecution and against North Olmsted for an alleged violation of Section 1983, Title 42 U.S. Code. Appellants assign the following errors for review: I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANTS, WHEN IN CONSIDERING THE MOTIONS FOR SUMMARY JUDGMENT FILED BY APPELLEES, IT CONSIDERED AS EVIDENCE CERTAIN RECORDS OF THE POLICE DEPARTMENT OF APPELLEE CITY OF NORTH OLMSTED, SAID RECORDS IDENTIFIED IN THE RECORD AS BEING EXHIBITS A, B, E AND G OF THE JOINT MOTION OF APPELLEES BARBARA GEISSBUHLER AND GOODWILL INDUSTRIES OF CLEVELAND, AND EXHIBITS B, B-1, B-2 AND B-3 OF THE MOTION OF APPELLEE CITY OF NORTH OLMSTED. II. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANTS, WHEN IN CONSIDERING THE MOTIONS FOR SUMMARY JUDGMENT FILED BY APPELLEES IT CONSIDERED AS EVIDENCE PORTIONS OF THE AFFIDAVITS OF MONTGOMERY PAUL PLOCICA AND ROBERT E. DUNGAN, SAID AFFIDAVITS IDENTIFIED IN THE RECORD AS BEING EXHIBITS E AND F OF THE MOTION OF APPELLEE CITY OF NORTH OLMSTED. III. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANTS, WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT FILED JOINTLY BY APPELLEES BARBARA GEISSBUHLER AND GOODWILL INDUSTRIES OF CLEVELAND, AND ENTERED FINAL JUDGMENT IN FAVOR OF SAID APPELLEES, WHICH JUDGMENT IS CONTRARY TO LAW. - 3 - IV. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANTS, WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT FILED BY APPELLEE CITY OF NORTH OLMSTED, AND ENTERED FINAL JUDGMENT IN FAVOR OF SAID APPELLEE, WHICH JUDGMENT IS CONTRARY TO LAW. Finding none of the assignments of error to have merit, the judgment of the trial court is affirmed. I. On July 16, 1993, appellants were stopped by Westlake police at approximately 11:30 p.m. The Westlake police officer was acting on a report received from the North Olmsted police that, at approx- imately 11:15 p.m., a witness observed a male and female take items from underneath the trailer located outside the Goodwill Industries Store in North Olmsted. The trailer is used as a dropoff location for donated goods. Although Goodwill Industries discouraged the practice, patrons would leave items to be donated underneath the trailer when the store was closed. The North Olmsted store experienced problems with goods left in this fashion being stolen. Appellants were escorted to the police station in North Olmsted where both separately made statements and the contents of their truck was seized and inventoried. Both were released and not arrested at that time. Barbara Geissbuhler, the Goodwill Industries store manager, received a telephone call from the North Olmsted police relative to the incident after 11:00 p.m. the night of July 16, 1993. She went to the police station and viewed the property. Geissbuhler could - 4 - not specifically identify the goods as belonging to Good-will Industries but stated it was of the kind typically donated to Goodwill Industries. Geissbuhler told police Goodwill Industries would prosecute. Goodwill Industries has a policy to prosecute someone removing items from one of the stores. However, the decision of whether or not to prosecute lies within the discretion of the store manager. Geissbuhler signed criminal complaints against appellants on July 22, 1993. Appellants were directed to report to the police station that day. Both were charged with petty theft and released. Appellants maintain they were innocent of the charges. In depositions, both testified they stopped at the trailer that night to donate property left by their tenants. In order to reach the goods to be donated, it was necessary to remove other property from their truck. These items were placed on the ground near the trailer and reloaded after the donated goods were left. The witness to the incident originally stated she did not wish to be involved in the case but later reluctantly agreed to testify. Prior to trial, the witness moved from her residence and could not be located. Before charges were filed, the North Olmsted City Prosecutor had made the determination that the case could not proceed without the testimony of this witness. The case was called to trial but dismissed for want of prosecution. On July 22, 1994, appellants filed a complaint against Geissbuhler, Goodwill Industries, and North Olmsted. The complaint - 5 - brought a cause of action against Geissbuhler and Goodwill Industries for malicious criminal prosecution. Appellants brought a Section 1983, Title 42, U.S. Code claim against North Olmsted alleging it violated their federal civil rights by permitting a private citizen or entity to decide whether or not to prosecute them. Geissbuhler and Goodwill Industries filed a joint motion for summary judgment while North Olmsted filed a separate summary judgment motion. The trial court granted both motions. II. Appellants' first and second assignments of error will be addressed together as appellants failed to address the errors separately and similar issues of law are present. Appellants argue the trial court erred in considering certain evidence when deciding the joint motion for summary judgment of Geissbuhler and Goodwill Industries and the summary judgment motion filed by North Olmsted. Civ.R. 56(C) provides in pertinent part: Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. Civ.R. 56(E) sets forth the requirements for the submission of affidavits and states in part: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth - 6 - such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. North Olmsted appended various police department records to its motion for summary judgment. The affidavit of Kevin Whelan filed with the documents stated that he is the custodian of records for the North Olmsted Police Department; that the documents are true and accurate copies of public records maintained by the North Olmsted Police Department setting forth activities of and matters observed by members of the North Olmsted Police Department as part of their duties imposed by law and for which they have a duty to report; and that the foregoing is based upon Whelan's personal knowledge unless otherwise designated. Appellants assert the affidavit is insufficient pursuant to Civ.R. 56(E). Appellants argue Whelan's statement that he is custodian of records does not identify Whelan's duties and responsibilities and that the statement that the documents are public records maintained by the police department is hearsay as is the content of the documents. Appellants maintain there was no way for the trial court to have determined whether Whelan had personal knowledge as stated in the affidavit. The proper way to introduce evidentiary matter not specifi- cally authorized by Civ.R. 56(C) is to incorporate it by reference - 7 - in a properly framed affidavit pursuant to Civ.R. 56(E). Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220. A specific allegation in an affidavit that it was made upon personal knowledge is sufficient to meet the requirement of such under Civ.R. 56(E). If the adverse party contends otherwise, an opposing affidavit setting forth the appropriate facts must be submitted. State, ex rel. Corrigan, v. Seminatore (1981), 66 Ohio St.2d 459, 467. Appellants provided no opposing affidavit showing Whelan did not have personal knowledge. Therefore, Whelan's assertion of personal knowledge is sufficient. Pursuant to Evid.R. 901(B)(7), writings authorized by law to be recorded or filed in a public office or a purported public record meet the requirement of authentication by the submission of evidence sufficient to support a finding the writings are what its proponent claims. A police report constitutes a public record for evidentiary purposes. Evid.R. 803(8). All the rule requires is that the proponent of the document introduce evidence that the document is from the office where the record is kept. State v. Beam (1991), 77 Ohio App.3d 200, 206. Whelan's affidavit complies with the rule as he stated he is custodian of the records and that the documents are public records kept by the North Olmsted Police Department. The records in question relate to documents concerning the alleged theft as well as reports from two earlier incidents in which vehicles registered to appellants were seen parked next to - 8 - the Goodwill trailer at night. Occupants of the vehicles took items from underneath the trailer and placed them in the vehicles. Appellants assert it is not apparent from the record that the decision to bring charges against appellants was based at all on the documents. In reviewing the deposition testimony filed with the trial court, it is evident there was adequate evidence without the disputed police records to establish probable cause. The police were acting on the statement of a witness that she observed appellants remove property from underneath Goodwill's trailer. Appellants' license plate was provided to police as being that of the vehicle used to transport the alleged contraband. Property similar to that left at Goodwill Industries by patrons was found in appellants' vehicle at the time they were stopped by police within minutes of the alleged theft. The evidence in question is not determinative of North Olmsted's defense to appellants' Section 1983 claim. That claim related to whether North Olmsted had a policy or custom of allowing private persons to decide if charges would be filed in some cases but not in others. Other evidence is sufficient to establish Geissbuhler and Goodwill Industries' defense to appellants' malicious criminal prosecution cause of action. If there was any error, it was harmless. Appellants further contend certain statements in the affi- davits of two police officers were inadmissible hearsay. The evidence consists of a statement made by the witness to the alleged incident. Hearsay is an out-of-court statement offered in court as - 9 - evidence to prove the truth of the matter asserted. Evid.R. 801(C). A review of the record indicates the statements were not offered to prove the truth of the matter asserted and, therefore, are not hearsay. See State v. Cantlebarry (1990), 69 Ohio App.3d 216, 220. The statements were offered to explain the investigation of the case and the conduct of the police officers. As such, the statements are not hearsay. See State v. Price (1992), 80 Ohio App.3d 108. Appellants' first and second assignments of error are not well taken. III. In their third assignment of error, appellants assert the trial court erred in granting the summary judgment motion of Geissbuhler and Goodwill Industries. Appellants argue there is evidence in the record sufficient to support their claim of malicious prosecution against Geissbuhler and Goodwill Industries. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclu- sion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. - 10 - Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322. The tort of malicious criminal prosecution provides redress for the harm to a plaintiff's dignity and reputation occasioned by the misuse of criminal proceedings. Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 84. In order to prevail the plaintiff must prove by a preponderance of the evidence the following elements: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause for undertaking the prosecution, and (3) termination of the prosecution in favor of the accused. Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, syllabus. A termination in the accused's favor occurs when the final disposition indicates the accused is innocent. An unconditional, unilateral dismissal of criminal charges or an abandonment of a prosecution by the prosecutor or the complaining witness that - 11 - results in the discharge of the accused generally constitutes a termination in favor of the accused. Ash v. Ash (1995), 72 Ohio St.3d 520. In the instant case, appellants' case was dismissed for want of prosecution. This is sufficient under Ash to constitute a termination in appellants' favor. The Supreme Court of Ohio has defined "malice" for purposes of a claim of malicious prosecution as "an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice." Criss, supra, at 85. In determining whether a criminal prosecution was instituted or continued for an improper purpose, inquiry must be made into the basis for the decision to prosecute. In the absence of evidence showing a basis for the decision, it will appear to have been made without any basis or maliciously. Id., at 85. The absence of probable cause is the gist of an action for malicious prosecution, and malice may be inferred from the absence of probable cause. The determination of whether a criminal prosecution was undertaken in the absence of probable cause entails an inquiry into the facts or circumstances actually known to or which were reasonably within the contemplation of the defendant at the time of the instigation of criminal proceedings. McFinley v. Bethesda Oak Hosp. (1992), 72 Ohio App.3d 613. A defendant meets the requirement of probable cause if he has a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the - 12 - person accused is guilty of the offense charged. Ash v. Marlow (1851), 20 Ohio 119. There is no requirement that there be enough evidence to ensure a conviction. Deoma v. Shaker Heights (1990), 68 Ohio App.3d 72, 77. The defendant's conduct should be measured in light of the facts and circumstances the defendant knew or reasonably should have known at the time of the filing of the criminal complaint. Portis v. TransOhio Savings Bank (1988), 46 Ohio App.3d 69, 70. Appellants first point to some minor factual discrepancies in the trial court's opinion to buttress their argument that the trial court did not thoroughly examine the record before ruling on Geissbuhler and Goodwill Industries' joint motion for summary judgment. None of the errors has any bearing on the determination of whether summary judgment was appropriate on the claim of malicious prosecution. Appellants argue Geissbuhler and Goodwill Industries lacked probable cause to bring petty theft charges as they had no personal knowledge of the events which took place and could not definitely identify any of the property as belonging to Goodwill. Appellants further argue charges were brought against them because Goodwill was concerned about afterhour thefts at their North Olmsted store and intended to prosecute anyone apprehended doing so. The record indicates Geissbuhler received a telephone call at her home on the night of the incident from the North Olmsted police dispatcher. The telephone call concerned information that items - 13 - were taken from underneath the trailer outside the Goodwill store. Geissbuhler went to the police station that night. At the station, Geissbuhler received information that a witness observed a couple pull up to the trailer in a truck, remove things from the truck and also take property from underneath the trailer and place it in the couple's truck. Geissbuhler viewed the property and identified it as being the type normally donated to Goodwill. Geissbuhler stated it was Goodwill's policy to prosecute those who steal from a store but the ultimate decision of whether or not to prosecute is that of the store manager. The facts known to Geissbuhler at the time she decided to sign the complaint against appellants were such that a cautious person would believe appellants committed the offense. Only a reasonable ground of suspicion is required. Geissbuhler was told by the police that a witness saw appellants remove property from under the trailer. Appellants had property of the kind normally donated to Goodwill in their possession at the time they were stopped by police. There is nothing in the record to support appellants' contention charges were brought against them because of pressure on Geissbuhler by Goodwill to prosecute for any allegations of theft. That decision was that of Geissbuhler as store manager. The evidence indicates probable cause existed for the institution of criminal charges against appellants sufficient for the grant of summary judgment. - 14 - There is no evidence in the record this prosecution was brought with an improper purpose. There was a basis for the prosecution and probable cause existed. Therefore, appellants have not met the requirement that the charges were brought with malice. Appellants' third assignment of error is overruled. IV. In their fourth assignment of error, appellants contend the trial court erred in granting North Olmsted's summary judgment motion. Appellants brought a 42 U.S.C. Section 1983 claim against North Olmsted alleging it violated appellants' constitutional rights guaranteed under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Appellants allege North Olmsted has a policy or custom under which private citizens or entities essentially can decide whether or not charges will be filed in a particular case. Appellants argue that in certain cases, such as theirs, charges would be issued only if the private party or entity signed the affidavit and complaint and posted a prosecution bond. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the juris- diction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. - 15 - In order to bring a Section 1983 action, two requirements must be met. The plaintiff must allege that some person has deprived him of a federal right and that the person acted under color of law. Gomez v. Toledo (1980), 446 U.S. 635, 640. Among those persons who can be sued directly under Section 1983 are munici- palities and other local government units. However, a municipality may not be held liable under a theory of respondeat superior but the execution of a government's policy or custom must inflict the injury that the government as an entity is responsible for under Section 1983. Monell v. New York City Dept. of Social Services (1978), 436 U.S. 658. Recovery from a municipality is limited to acts which the municipality has officially sanctioned or ordered. Municipal liability attaches where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Pembaur v. City of Cincinnati (1986), 475 U.S. 469. Appellants' argument is predicated upon their allegation that North Olmsted has a policy or custom which permits a private citizen or entity to make the decision to prosecute in certain instances. For a Section 1983 claim, a custom or usage of a municipality must have the force of law by virtue of the persistent practices of state officials. Adickes v. S.H. Kress and Co. (1970), 398 U.S. 144. North Olmsted's city prosecutor testified at his deposition that for some criminal investigations, a criminal - 16 - charge would be filed only if the complaint and affidavit were signed by a private party. Whether the signature of a private citizen was necessary or if the affidavit and complaint could be signed by a police officer depended upon the case. The prosecutor preferred for the complainant to sign the affidavit and complaint as a way of insuring that party's involvement in the case. In some cases, it is necessary to have the participation of the complainant in order to prosecute. The city prosecutor stated that in the instant case, he probably would have had one of the police officers sign the complaint if a representative of Goodwill had refused to do so. Under Section 1983, a prosecutor is afforded absolute immunity when initiating a prosecution and presenting the state's case. Imbler v. Pachtman (1976), 424 U.S. 493. Appellants allege North Olmsted engages in a policy or custom under which a private citizen ultimately makes the decision over whether certain person will be criminally charged. In other instances, that decision rests with the police or prosecutor. The evidence reflects the city prosecutor may not choose to pursue certain cases when the complainant will not sign the complaint. At other times, the signature of a police officer will suffice. This does not reflect a policy or custom of North Olmsted in which certain private citizens are granted the power to decide whether or not a prosecution will go forward. Rather, it reflects the reality that some cases and investigations are stronger with more evidence or - 17 - evidence of a better quality than others. Some prosecutions will not stand without the involvement of the complainant and the better policy would be to have that person sign the complaint. The city prosecutor testified no charges are brought without probable cause. As long as probable cause is present, appellants' constitutional rights have not been violated. A prosecutor must have discretion when deciding whether to initiate a prosecution. Part of that decision involves an evaluation of the evidence present in each case. Whether a complaint needs to be signed by the complainant for charges to be brought in certain cases is a discretionary decision to be made by a prosecutor which is afforded immunity under Section 1983. Although appellants are arguing it was the policy of North Olmsted and not that of the prosecutor, in this instance, it is a distinction without a difference. The alleged policy complained of is one which falls squarely within the prosecutor's decision whether or not to initiate a prosecution. That discretion is immune from Section 1983 liability. Appellants' fourth assignment of error lacks merit. Judgment affirmed. - 18 - It is ordered that appellees recover of appellants their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .