[Cite as State v. G.F.A., 2019-Ohio-4978.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 108113 v. :
G. F. A., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: December 5, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611801-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and David M. King, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, A.J.:
Defendant-appellant, G.F.A., appeals from the trial court’s denial of
his motion to seal his record. For the reasons set forth below, we reverse and
remand. In December 2016, G.F.A. was charged with felonious assault and
domestic violence. The charges allege that G.F.A. physically assaulted his mother,
who was 76 years old at the time. The matter was set for trial on March 27, 2017.
Prior to the start of trial, the state dismissed the matter in light of the lack of
cooperation of the victim, G.F.A.’s mother. The state also indicated that based on
conversations with the mother, the events did not occur as she had reported to the
police. The trial court granted the dismissal without prejudice, noting that the
“victim [is] not available and has recanted. [G.F.A.] advised to stay away from victim
and he agreed. [G.F.A.] is leaving the area for employment elsewhere.”
One year later, in December of 2017, G.F.A. filed a motion to seal his
record. The state opposed, and the trial court held a hearing on the matter. At the
hearing, defense counsel advised the trial court that the case had been dismissed by
the state and G.F.A. hoped to relocate to Florida. The state objected, noting that the
case was dismissed because the elderly victim was injured and unable to come to
court to testify. The state noted that it would reindict if it received more information.
At the conclusion of the hearing, the trial court took the matter under advisement.
Thereafter, the court issued a journal entry denying G.F.A.’s motion. The entry
stated: “[G.F.A.’s] motion to seal court records denied. Based on the expungement
investigation report.”
It is from this order G.F.A. appeals, raising the following two
assignments of error for review: Assignment of Error No. 1
The trial court abused its discretion in denying [G.F.A.’s] motion for expungement as it failed to properly weigh the competing interests in the sealing of [G.F.A.’s] records.
Assignment of Error No. 2
The trial court failed to articulate and create a record for this Court to engage in a meaningful appellate review.
In the first assignment of error, G.F.A. argues that the trial court
failed to properly weigh his interests when it denied his motion to seal his record.
In State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, this
court explained the standard of review of a ruling on a motion to seal a record of
conviction as follows:
In general, a trial court’s decision to grant or deny a request to seal records is reviewed under an abuse of discretion standard. In re Fuller, 10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. State ex rel. Nese v. State Teachers Retirement Bd. of Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 25.
Id. at ¶ 10.
R.C. 2953.52 sets forth the procedure by which trial courts may seal a
defendant’s record following a dismissal of the charges. R.C. 2953.53(A)(1) provides
that “[a]ny person, who is found not guilty of an offense by a jury or a court or who
is the defendant named in a dismissed complaint, indictment, or information, may
apply to the court for an order to seal the person’s official records in the case.” Once
the defendant files the application, “the court shall set a date for a hearing and shall
notify the prosecutor in the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court
prior to the date set for the hearing” and specifying in the objection the reasons the
prosecutor believes justify a denial of the application. R.C. 2953.52(B)(1).
In considering the application, the trial court shall:
(a)(i) Determine whether the person was found not guilty in the case, or the complaint, indictment, or information in the case was dismissed * * *; (ii) If the complaint, indictment, or information in the case was dismissed, determine whether it was dismissed with prejudice or without prejudice and, if it was dismissed without prejudice, determine whether the relevant statute of limitations has expired;
(b) Determine whether criminal proceedings are pending against the person;
(c) If the prosecutor has filed an objection in accordance with division (B)(1) of this section, consider the reasons against granting the application specified by the prosecutor in the objection;
(d) Weigh the interests of the person in having the official records pertaining to the case sealed against the legitimate needs, if any, of the government to maintain those records.
R.C. 2953.52(B)(2)(a)-(d).
If the court determines, after complying with R.C. 2953.52(B)(2), that
(1) the complaint, indictment, or information in the case was dismissed; (2) that no
criminal proceedings are pending against the person; and (3) that the interest of the
person having the records pertaining to the case are not outweighed by any
legitimate governmental needs to maintain such records, then “the court shall issue
an order directing that all official records pertaining to the case be sealed and that
* * * the proceedings in the case be deemed not to have occurred.”
(Emphasis added.) R.C. 2953.52(B)(4). It is the defendant’s burden to demonstrate legitimate reasons, as
opposed to a general privacy interest, why the records should not remain open to
the public. State v. J.D., 8th Dist. Cuyahoga No. 99521, 2013-Ohio-4706, 1 N.E.3d
434, ¶ 8, discretionary appeal not allowed, 2014-Ohio-1182, 2014 Ohio LEXIS 674
(Mar. 26, 2014), citing State v. Haney, 70 Ohio App.3d 135, 590 N.E.2d 445 (10th
Dist.1991). “Once this burden is met and those needs outweigh the legitimate
interests of the state in maintaining the records, the application should be freely
granted.” Id., citing State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-4878, 877
N.E.2d 755 (1st Dist.).
Here, G.F.A. offered the following reasons for sealing his record
before the trial court:
[DEFENSE COUNSEL]: This is a matter that had been dismissed. There was a family dispute that resulted in charges of a very serious nature. However, before the case even came to trial, the prosecutor did dismiss it.
There was, in fact, a later indication by the prosecution after that had been taken care of that information would then be presented to ICE authorities as to a 2010 disorderly conduct, an M-4.
So even though the case was dismissed, [G.F.A.] was then contacted by ICE. He did go through interviews with them. They determined that that certainly was no reason to challenge his status here in the United States.
He is seeking a sealing of the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is OPOTA certified for security, believes that he has a line on a job down in that part of the country that would serve not only himself, but this country well in doing security.
And, Judge, so for those reasons, he is an eligible offender and asking for the Court to seal the record of this matter. (Tr. 6-7).
The state, on the other hand, contended that:
[e]ven though this was a dismissed case, it was dismissed because the elderly victim was unable to come to court to testify. The elderly victim was injured, and we’re objecting.
A dismissal doesn’t mean innocence. And the note says that if we get more information, we would reindict.
(Tr. 7-8).
These reasons are different than the reasons offered by the state
before trial. Prior to the start of trial, the state moved to dismiss the case because
the victim, G.F.A.’s mother, was uncooperative. The state indicated that based on
conversations with the mother, the events did not occur as she had reported to the
police. At the hearing to seal G.F.A’s record, the state contended that the records
should not be sealed because the elderly victim was unable to come to court to testify
and made the general argument that a dismissal does not equate to innocence.
It is G.F.A.’s burden to demonstrate legitimate reasons as to why his
record should be sealed, and based on the foregoing, we find that G.F.A. has met his
burden. G.F.A.’s application is based on his belief that he will obtain gainful
employment in security. Defense counsel stated that G.F.A. “is seeking a sealing of
the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is
OPOTA certified for security, believes that he has a line on a job down in that part of
the country that would serve not only himself, but this country well in doing
security.” (Tr. 7). The state opposed because the victim did not come to trial and “a
dismissal doesn’t mean innocence.” G.F.A.’s need for employment outweighs the state’s general need to maintain the record. R.C. 2953.52(B)(2)(c)-(d). Additionally,
it is undisputed that the underlying criminal complaint was dismissed and that no
charges were pending against G.F.A. R.C. 2953.52(B)(2)(a)-(b).
Having met this burden, the trial court should have granted G.F.A.’s
application as set forth in R.C. 2953.52(B)(4), which provides that “the court shall
issue and order directing that all official records pertaining to the case be sealed” if
the complaint was dismissed, no criminal proceedings are pending, and the interest
of the person having the records pertaining to the case are not outweighed by any
legitimate governmental needs to maintain such records. (Emphasis added.)
Indeed, R.C. 2953.32 “is to be liberally construed, the relief available
is to be liberally granted, and it is an abuse of discretion not to do so.” State v.
Hilbert, 145 Ohio App.3d 824, 828, 764 N.E.2d 1064 (8th Dist.2001). See State v.
Clellan, 10th Dist. Franklin No. 10AP-44, 2010-Ohio-5867, ¶ 19 (where the Tenth
District Appeals Court found that neither the state nor the trial court’s decision
articulated a legitimate government interest to support a decision to deny the
defendant’s application to seal her records. As a result, the trial court’s judgment
was reversed and the matter was with instructions to grant defendant’s application
to seal her record under R.C. 2953.52). See also Gehris v. State, 9th Dist. Wayne
No. 99CA0060, 2000 Ohio App. LEXIS 3975 (Aug. 30, 2000). G.F.A. should not be
saddled with a criminal arrest record when the state walked away from the
prosecution. Therefore, we find that the trial court abused its discretion in denying
G.F.A.’s motion to seal his record.
Accordingly, the first assignment of error is sustained.
In the second assignment of error, G.F.A. argues the trial court failed
to articulate and create a record for meaningful appellate review. However, our
disposition of the first assignment of error renders this assignment of error moot.
App.R. 12.
The dissent finds that our decision relieves defendants from meeting
their burden when applying to seal their records. In support of its contention, the
dissent relies on J.D., maintaining that J.D. is similar to the instant case. The facts
of J.D., however, are vastly different from the instant case. It has a complex, legal
history in multiple courts, spanning over 25 years involving an aggravated murder
death-penalty conviction. In the instant case, three months passed from the time
G.F.A. was indicted to the time the state decided not to prosecute the matter, and
G.F.A. sought to seal his record within one year from the time he was indicted.
Moreover, there has never been a finding of guilt against G.FA, and unlike G.F.A,
J.D. did not meet his burden to demonstrate legitimate reasons why his record
should not remain open to the public.
In J.D., the defendant, J.D., was charged with two counts of
aggravated murder with death penalty specifications, kidnapping, and aggravated
burglary, in connection with the death of Anthony Klann. The matter was tried to a
three-judge panel, which found J.D. guilty of all counts. J.D. was sentenced to death, and a consecutive 10 to 25-year term of imprisonment was imposed on the other
charges. J.D., 8th Dist. Cuyahoga No. 99520, 2013-Ohio-4472, at ¶ 2.
Following various unsuccessful state and federal challenges to his
conviction, J.D. filed a writ of habeas corpus in the United States District Court for
the Northern District of Ohio. The petition included a claim that the prosecution
had failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court granted his petition,
finding that most of the evidence that J.D. introduced to support his Brady claim
was withheld by the prosecution and that J.D.’s due process rights were in fact
violated. The district court ordered the state to set aside J.D.’s conviction and
sentence or conduct another trial within 180 days. The Sixth District Court of
Appeals upheld the district court’s decision. Id. at ¶ 3.
On remand, after further discovery violations by the state and the
failure to retry J.D. within the time allowed by federal court, the federal district court
barred retrial of J.D. Id. at ¶ 4-6. The Sixth Circuit affirmed the writ barring J.D.’s
reprosecution. Id. at ¶ 6.
Thereafter, J.D. filed a motion to seal the records. He alleged that
sealing was necessary to allow him to “be able to pursue the remainder of his life
without being saddled with the public record of this case.” J.D., 8th Dist. Cuyahoga
No. 99521, 2013-Ohio-4706, 1 N.E.3d 434, at ¶ 3. The state opposed the motion,
arguing that the state needed access to the records in three other matters: the retrial
and appeal of a codefendant and two civil suits filed by J.D. against the state. Id. The trial court held a hearing on J.D.’s motion, at which it heard from J.D.’s
attorney, the public defender’s office, and the state. The court granted the motion,
finding that the indictment against J.D. was dismissed, he was not facing any
pending criminal charges, and “the interest of the applicant in having the records
pertaining to the case sealed are not outweighed by any legitimate needs of the
government to maintain those records.” Id. at ¶ 4. The state then appealed.
On appeal, the state argued the trial court abused its discretion when
it sealed “all official records pertaining to this case” because J.D.’s records were
required for an ongoing criminal case and two civil cases. Id. at ¶ 4. This court
agreed with the state, finding that trial court abused its discretion when it granted
J.D.’s motion because “J.D. offered no justification for the sealing of the records of
his investigation and indictment apart from a general privacy interest, and the state
offered a significant justification beyond the public’s right to open records.” Id. at
¶ 18.
J.D. argued his records should be sealed because: “(1) the prior
expungement ordered by the federal court, (2) that he was saddled with public
records of arrest and indictment, and (3) that he was living a law-abiding life and
was gainfully employed.” Id. at ¶ 9. The J.D. court found that “the first reason does
not present a justification for further sealing because the parameters of the federal
court order were complied with, and the records of J.D.’s trial and conviction were
expunged pursuant to that order.” Id. at ¶ 10. With regard to the second and third
reasons, the J.D. court noted that J.D. asserted only a general privacy argument supporting his motion and indicated he had no issues gaining employment despite
the existence of the records he sought to seal. Id. at ¶ 11. The state, on the other
hand, asserted a legitimate need to use records associated with its investigation in
the civil suits J.D. filed seeking damages from the state’s violation of his
constitutional rights and relying on events and information from J.D.’s trial. Id. at
¶ 15.
These facts and circumstances are completely different from the
state’s decision in the instant case to dismiss the charges against G.F.A. In J.D., his
death penalty conviction by a three-judge panel was overturned by federal court due
to discovery violations by the state and its the failure to retry J.D. within the time
allowed by federal court. This is in stark contrast to the instant case. Here, G.F.A.
never went to trial, nor was he convicted. Rather, his domestic violence and
felonious assault charges were dismissed because the state failed to prosecute. J.D.
was tried and convicted of a capital offense, and after years of legal maneuvering
through the state and federal courts, the state ultimately chose not to prosecute him
timely.
Moreover, J.D. did not meet his burden demonstrating legitimate
reasons as to why his record should be sealed. At his hearing, J.D. expressed he was
“gainfully employed.” Whereas, the exact opposite was conveyed at G.F.A.’s hearing.
G.F.A.’s defense counsel stated that G.F.A. needs his record sealed because he
believes he has a gainful employment opportunity in Florida. (Tr. 7). Additionally,
in opposing G.F.A.’s motion, the state argued the elderly victim was injured and “a dismissal doesn’t mean innocence.” This argument is completely different from the
state’s argument in J.D. In J.D., J.D.’s criminal records were necessary for the civil
suits he initiated against the state. Here, the record is clear that G.F.A. did not have
any ongoing cases at the time of his motion to seal his record, let alone any civil cases
related to his criminal case.
Accordingly, judgment is reversed, and the matter is remanded to the
trial court with instructions to grant G.F.A.’s application to seal his record under
R.C. 2953.52.
It is ordered that appellant recover from appellee 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.
______ MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., CONCURS; MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, J., DISSENTING:
I respectfully dissent. The majority’s opinion relieves defendants
from carrying their burden on an application to seal criminal convictions and belies
opinions from this court and other courts that require defendants to demonstrate legitimate reasons, as opposed to a general privacy interest, as to why the records
should not remain open to the public. J.D., 8th Dist. Cuyahoga No. 99521, 2013-
Ohio-4706, at ¶ 8, citing Haney, 70 Ohio App.3d 135, 590 N.E.2d 445; State v. W.C.,
8th Dist. Cuyahoga No. 105353, 2018-Ohio-1182, ¶ 10; State v. Delgado, 8th Dist.
Cuyahoga No. 102653, 2015-Ohio-5256, ¶ 10; State v. Andrasek, 8th Dist. Cuyahoga
No. 81398, 2003-Ohio-32, ¶ 12. In this case, G.F.A. clearly did not carry his burden
to demonstrate a legitimate reason for sealing, and as a result, I disagree with the
majority that the trial court abused its discretion and that its decision was
unreasonable, arbitrary, or unconscionable.
As written, the majority’s opinion undermines the well-established
burden that defendants must carry when applying to seal their records, which
requires more than “a general privacy interest” and “merely reciting the statutory
requirements” and stating that the defendant qualifies for sealing. J.D. at ¶ 11; State
v. Wilson, 10th Dist. Franklin Nos. 13AP-684 and 13AP-685, 2014-Ohio-1807, ¶ 17.
Going forward, the majority’s opinion will allow defendants to ignore long-standing
precedent and rely merely on their eligibility to have their records sealed.
In recognizing that “[i]t is the defendant’s burden to demonstrate
legitimate reasons, as opposed to a general privacy interest, why the records should
not remain open to the public[,]” the majority cites to State v. J.D. In J.D., the
defendant applied to seal his records, and in his application, the defendant “alleged
that sealing was necessary to allow him to ‘be able to pursue the remainder of his life
without being saddled with the public record of his case.’” Id. at ¶ 3. While the trial court held a hearing, the defendant did not offer any evidence in support of his
application. Nevertheless, the trial court granted his application. On appeal, we
found that the trial court abused its discretion in granting the defendant’s
application because he failed to carry his burden to demonstrate that his need for
sealing outweighed the legitimate interests of the state. We noted that the defendant
only alleged “a general privacy interest possessed by all individuals” and that he
“indicated he had no issues gaining employment despite the existence of the records
he sought to seal.” Id. at ¶ 11. Accordingly, we found that the defendant “offered no
justification for the sealing of the records of his investigation and indictment[.]” Id.
at ¶ 18.
This case is similar to J.D. G.F.A.’s application only stated, “On
December 7, 2016, [G.F.A] was charged with felonious assault and domestic
violence. On March 27, 2017, the case was dismissed. In this instance, [G.F.A.] is
now eligible to have the record sealed.” In other words, G.F.A. did not set forth any
legitimate reasons in support of his application other than the fact that he was
eligible for sealing, which is not enough to satisfy his burden. See State v. Hooks,
10th Dist. Franklin No. 15AP-522, 2016-Ohio-3138, ¶ 14 (“[A]ppellee failed to
‘present testimony or any evidence’ to demonstrate his interest in having his record
sealed” as his application only said he qualified for sealing under R.C. 2953.52);
State v. Draper, 10th Dist. Franklin No. 14AP-791, 2015-Ohio-1781, ¶ 11 (“[A]ppellee
did not present testimony or any evidence to demonstrate her interest in having the
record of her dismissals sealed. Appellee merely provided an application stating that she qualified for sealing of records under R.C. 2953.52, and therefore failed to meet
her burden of proof under R.C. 2953.52.”); Wilson at ¶ 17 (defendant’s recital of
statutory language showing he was eligible for sealing was insufficient to meet his
burden); State v. Moore, 5th Dist. Stark No. 2012CA00047, 2012-Ohio-4483, ¶ 15
(“The mere fact of an acquittal does not require the sealing of records.”).
Turning to the hearing, G.F.A. did not present any evidence in
support of his application. Instead, his attorney stated, “[G.F.A.] is seeking a sealing
of the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is
OPOTA certified for security, believes that he has a line on a job down in that part of
the country that would serve not only himself, but this country well in doing
security.” In other words, G.F.A.’s attorney only stated that G.F.A. wanted to move
to Florida because he had a job opportunity there and that G.F.A. was eligible for
sealing, but in no way indicated that the charges were impeding his efforts to locate
a job or move to Florida.
Foremost, the reasons offered by G.F.A.’s attorney do not constitute
legitimate reasons that satisfy G.F.A.’s burden. Those statements do not indicate
that the records which G.F.A. wishes to seal are affecting his employment
opportunities or ability to earn a living. See State v. A.V., 9th Dist. Lorain No.
18CA011315, 2019-Ohio-1037, ¶ 16 (“While A.V. was present at the hearing, he did
not testify or present evidence of his career goals and his efforts towards obtaining
those career goals.”); J.D., 8th Dist. Cuyahoga No. 99521, 2013-Ohio-4706, at ¶ 11
(“J.D. indicated he had no issues gaining employment despite the existence of the records he sought to seal.”); State v. Shaffer, 11th Dist. Geauga No. 2009-G-2929,
2010-Ohio-6565, ¶ 31 (“[A]ppellant did not testify his employment prospects have
been adversely affected by his conviction.”); In re Sealing of the Record of Brown,
10th Dist. Franklin No. 07AP-715, 2008-Ohio-4105, ¶ 13 (“[Appellant] did not
clearly articulate that her financial problems were related to her criminal record.”).
The majority states that “G.F.A.’s defense counsel stated that G.F.A. needs his record
sealed because he believes he has a gainful employment opportunity in Florida.”
The majority adds words not mentioned by G.F.A.’s attorney as G.F.A.’s attorney
presented no evidence, let alone asserted, that G.F.A.’s records were preventing him
from obtaining such a position. The words actually spoken by G.F.A.’s attorney in
no way state that G.F.A.’s possible employment opportunity was dependent upon
the sealing of the criminal proceedings, which can still be brought against him as the
statute of limitations has not passed. By reading words into the transcript that are
not there, the majority carries G.F.A.’s burden for him.
Further, even if G.F.A.’s attorney’s statements actually set forth a
legitimate reason in support of sealing, those statements do not constitute evidence.
Haney, 70 Ohio App.3d at 138-139, 590 N.E.2d 4455 (“[A]lthough there was a
hearing, no evidence, only argument of counsel, was presented.”); A.V. at ¶ 16 (“A.V.
relied solely upon his counsel’s arguments made during the hearing, which is not
evidence.”); see also RNG Props., Ltd. v. Summit Cty. Bd. of Revision, 140 Ohio
St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906, quoting Corporate Exchange Bldgs. IV
& V, L.P. v. Franklin Cty. Bd. of Revision, 82 Ohio St.3d 297, 695 N.E.2d 743 (1998) (“We have long held that ‘statements of counsel are not evidence.’”). Therefore,
there was, in fact, no evidence presented in support of granting G.F.A.’s application.
The majority says that the state failed to articulate a legitimate
government interest to support denying G.F.A.’s application. However, “it is
[G.F.A.’s] burden to show that his interest in sealing the records is equal to or
outweighs the state’s interest in maintaining those records, not the state’s burden.
Therefore, there is no requirement that the state present any evidence at [a R.C.
2953.52] hearing.” State v. Newton, 10th Dist. Franklin Nos. 01AP-1443 and 01AP-
1444, 2002-Ohio-5008, ¶ 10; see also Shaffer at ¶ 25 (citing Newton); Haney at 138
(even if the state does not file objections, a trial court must still weigh the interests
of the applicant against the government’s interests in maintaining those records,
and it is the applicant’s burden to show that his or her interests are equal or greater
to the government’s).
Furthermore, contrary to the majority’s assertions, the state did
articulate an interest in maintaining G.F.A.’s records. In its brief in opposition, the
state said that it opposed G.F.A.’s application because “of the nature of the facts, that
an elderly victim was injured.” Further, at the hearing, the state said, “The elderly
victim was injured, and we’re objecting. A dismissal doesn’t mean innocence. And
the note says that if we get more information, we would reindict.” In fact, it appears
that the state can re-indict G.F.A. for felonious assault up until November 19, 2022,
which is when the statute of limitations for that charge expires. See
R.C. 2901.13(A)(1)(a) (statute of limitations for felony is six years). While a trial court cannot summarily deny an application based solely on the nature of the
offense, it can still consider the victim’s injuries as a legitimate government interest.
State v. Reiner, 8th Dist. Cuyahoga No. 103775, 2016-Ohio-5520, ¶ 15. Additionally,
the state’s objection based upon a possible re-indictment constitutes an interest that
a court may weigh when considering an application to seal. See State v. Bates, 6th
Dist. Williams No. WM-11-007, 2012-Ohio-1397, ¶ 12 (“There is * * * ample
documentation in the record that it was the state’s intent to resubmit appellant’s
case to the grand jury. That intent, although not constituting pending criminal
proceedings, * * * is a state interest that the trial court may legitimately weigh in
balancing the interests of the parties.”).
Therefore, I would find that the trial court did not abuse its discretion
in denying his application because G.F.A. failed to set forth any legitimate reason
beyond his eligibility in either his application for sealing or at the hearing. By
holding that G.F.A.’s “justifications” were enough to carry his burden, the majority
undermines long-standing precedent that requires a defendant to show more than
mere eligibility and a general privacy interest to have his or her records sealed.
While G.F.A. was never found guilty of the crimes charged, he has not demonstrated
that he has a legitimate interest in having his records sealed, and even less that his
interest in having the records sealed is equal to or greater than the government’s
interest in maintaining those records.
Accordingly, I would overrule G.F.A’s first assignment of error. I would also overrule G.F.A.’s second assignment of error. The trial
court’s reference to the expungement investigation report, which showed that G.F.A.
was previously charged with domestic violence in 1989, 1992, and 2010, as well as
considering the fact that G.F.A. offered no legitimate reasons or evidence to support
his application, was enough to allow this court to engage in meaningful appellate
review of the trial court’s decision.