IN THE SUPERIOR COURT OF THE
STATE OF RIDGEWAY
STATE OF RIDGEWAY,
Plaintiff,
v,
MIGRATIONAL,
Defendant.
DEFENDANT’S MOTION TO STRIKE
COUNT II
Hon. EffortlessBrit
Docket Number: RSC-CM-0389
The Defendant Mr. migrational (“Defendant”), by and through their undersigned counsel,
moves this court to strike Count II from the Criminal Information. Count II is unsupported by the
sworn probable cause affidavit in this matter and was added only after the State was challenged
by this Court. The State acknowledged that its original charging theory was incorrect.
Accordingly, Count II should be stricken for lack of probable cause.
INTRODUCTION
This case presents a number of structural and procedural issues, and this motion
addresses one of the most obvious. The State of Ridgeway has provided a sworn affidavit made
by the State Bureau of Investigation, alleging that Mr. migrational committed Official
Misconduct contrary to R.C.C. § 2.15, and Assault contrary to R.C.C. § 3.09(c). The investigator
never alleged an offense of Aggravated Battery Class II.
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Nonetheless, the State still filed an Information charging Mr. migrational with
Aggravated Battery Class II, instead of Assault, in contravention of the police and their
investigation.
Indeed, the State has acknowledged to the Court that the original assault charge was
incorrect, and agreed that battery was a more appropriate offense. Having admitted that the
offense contained within the affidavit was legally unsupported, the State still used it. Under the
Ridgeway Rules of Criminal Procedure, when a criminal case is initiated through the laying of an
information, the complainant must provide the court with the facts that form the basis for the
charges. These facts must be conveyed in writing or recorded, and a judge cannot authorize
criminal information unless the facts presented establish probable cause to believe that the
accused committed the offense. See Rid. R. Crim. P. 3(f)(1)-(2). Here, the facts presented in the
affidavit do not allege an offense of Aggravated Battery Class II.
The police should have reviewed the investigation, and determine if the offense of
Aggravated Battery Class II was committed, and if they do believe so, should have
provided an amended affidavit alleging that. Because the police do not allege this specific
offense, the State cannot charge Mr. migrational with it. Accordingly, Count II should be
stricken.
FACTUAL BACKGROUND
On July 12, 2026, Special Agent ArezCm concluded his investigation into Mr.
migrational, and swore to an affidavit of probable cause in which he believed Mr. migrational
committed Official Misconduct contrary to R.C.C. § 2.15, and Assault contrary to R.C.C. §
3.09(c). More specifically, Special Agent ArezCm expressly states that the affidavit only
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supports these violations, and does not mention Aggravated Battery II. Nevertheless, the State
filed an Information four days later which charged Mr. migrational with Official Misconduct
contrary to R.C.C. § 2.15, and Aggravated Battery II contrary to R.C.C. § 3.08(a).
The Court confronted the State about this inconsistency, and asked why assault was
alleged when the alleged conduct involved actual physical contact. The State told the Court that
they “agree with the charge of battery over assault.” Thus, the State has demonstrated they have1
abandoned the offense contained within Special Agent ArezCm’s affidavit, and swapped it with
an entirely different offense.
ARGUMENT
A. A Criminal Information Must Rest Upon Probable Cause For the Offense Actually
Charged
Any criminal prosecution must be supported with at least probable cause. The2
requirement for probable cause is importantly supported by the constitution. Consequently, it is
unacceptable for any prosecution to lack probable cause.3
Here, probable cause to proceed with this case has not been met properly because the
police do not believe an offense of Aggravated Battery Class II has been committed.
It is improper for the State to simply replace the Assault charge for Aggravated Battery
Class II, and still rely on the same affidavit because these are two very different offenses, which
possess different statutory elements, legal theories, and punishments.
3 Thompson v. Clark, 596 U.S. (2022)
2 Gerstein v. Pugh, 420 U.S. 103 (1975)
1 https://discord.com/channels/955339522936279040/1528909821779251270/1529625454301155500
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B. The State Has Conceded That The Original Charging Theory Was Incorrect
When the Court questioned whether a taser deployment constituted assault, the State
admitted that this was an incorrect charge, and that it should have been battery. Rather than
defending the affidavit, the prosecutor acknowledged that it was flawed in what charges it sought
out for probable cause.
Having made that concession, the State cannot simply replace the offense with another
using the same affidavit.
C. The Sworn Affidavit Never Establishes Probable Cause For Aggravated Battery
The affidavit made by Special Agent ArezCm is specifically written “in support of a
criminal complaint against migration…for violations of 3 S.C.C. § 09c (Assault) and 2 S.C.C §
15 (Official Misconduct).” AOPC ¶ 2. It does not assess battery, analyze its statutory elements,
swear that probable cause exists for it, or requests for prosecution of that offense. Yet, the State
has asked this Court to infer probable cause for a crime never alleged by the police.
D. Material Changes To The Changing Theory Require More Than Mere Amendment
Although prosecutors general have authority to amend charging documents before trial,
that authority is not unlimited. In Cole v. Arkansas, 333 U.S. 196 (1948), two petitioners were
convicted under section 2 of a state statute, but the Supreme Court intervened after finding that
the evidence showed they actually violated section 1, and not section 2. Cole held that it is a due
process violation to convict someone of a charge that was never properly made.
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Cole is similar to this matter. Mr. migrational currently faces a charge of battery, but the
evidence charges him with assault; two different state statutes. Should the Court allow this case
to continue under this circumstance, Mr. migrational could be convicted of a charge never made.
Similarly, in Stirone v. United States, 361 U.S. 212 (1960), the petitioner was convicted
of violating the Hobbs Act, contrary to 18 U.S.C. § 1951. The charges specifically alleged that he
imported sand into a State, but the trial judge allowed the introduction of evidence to show he
also exported this sand, and allowed the jury to use either of these elements for a conviction. The
Supreme Court held that because the charges did not allege exportation, and only importation, it
was a prejudicial error to allow the jury to question this and convict.
Here, Mr. migrational is charged with battery, but the evidence that will likely be used in
this matter (that being the investigator’s affidavit, his testimony, and the victim’s testimony) only
alleges assault. Should this Court allow this evidence to be admitted, it would very likely violate
Stirone in that it uses two different charges to confer guilt.
E. Striking Count II Is The Appropriate Remedy
When the State Bureau of Investigation concluded its investigation into Mr. migrational,
they believed he only committed assault, and swore under perjury to this. Despite their
investigation and affidavit, the prosecutor still chose to file a different charge. Given the harm
Mr. migrational faces if the State prosecuted him on this new charge, striking Count II is the only
appropriate remedy.
Should the State still genuinely believe probable cause exists for battery, the proper
course is to have the police reinvestigate Mr. migrational, and determine if he committed battery.
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They should provide a supplemental probable cause affidavit supporting battery, rather than
relying upon an affidavit that only charges assault.
CONCLUSION
The police investigated Mr. migrational, and found that he only committed assault and
misconduct, yet the State charged him with battery. The State has even acknowledged that
assault was the incorrect offense.
The State cannot simply remedy this defect by swapping charges, but still using the same
investigation. The police must investigate, seek probable cause, and ask this Court to find it.
Accordingly, Defendant requests that this Court:
1. Strike Count II (Aggravated Battery Class II contrary to R.C.C. § 3.08(a)) from the
Information; and,
2. Grant such further relief as the Court deems just and proper.
Date: July 25, 2026
Respectfully submitted,
Detachment_Result
[Detachment_Result] State Bar No.
11103
Counsel for the Defence
Deputy Chief Public Defender
Office of Public Defenders
Annex Building, Palmer City
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