[Cite as State v. Gordon, 2013-Ohio-5143.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                          :

                 Plaintiff-Appellant,                   :
                                                                           No. 13AP-328
v.                                                      :               (C.P.C. No. 12EP-950)

Eric V. Gordon,                                         :           (REGULAR CALENDAR)

                 Defendant-Appellee.                    :




                                          D E C I S I O N

                                   Rendered on November 21, 2013


                 Ron O'Brien, Prosecuting Attorney, and Barbara A.
                 Farnbacher, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Plaintiff-appellant, the State of Ohio ("the State"), appeals from a judgment
of the Franklin County Court of Common Pleas sealing the record of a misdemeanor
conviction of defendant-appellee, Eric V. Gordon ("appellee"), in case No. 93CR-07-5719.
    I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} During an altercation that took place in 1993, appellee struck Aaron Dawson
on the head with a metal club-like object. Dawson died as a result of a single blow to the
head. Appellee was subsequently charged with involuntary manslaughter but he later
plead guilty to negligent homicide, a misdemeanor in the first degree.1


1Appellee also applied for an order sealing the record of a related felony conviction but the trial court ruling
on that application is not the subject of this appeal.
No. 13AP-328                                                                           2


       {¶ 3}   On December 18, 2012, appellee filed an application for an order sealing
the record of the misdemeanor conviction pursuant to R.C. 2953.32(A). The State filed an
objection to the application on January 28, 2013, arguing that R.C. 2953.36(F) precludes
the trial court from sealing the record of a conviction of violence where the victim is a
minor. On March 8, 2013, a hearing was held on the motion before the Honorable
David E. Cain.    At the hearing appellee's counsel addressed the State's objection as
follows:
               [PROSECUTOR]: First, it is an aggravated assault, which is an
               offense of violence. Second, as indicated in the facts in regard
               to the other case, the '93 case, the victim there was a - - was a
               juvenile; and I'd also note that it's a rather serious charge in
               the second one, so I think for all those reasons, it would be
               proper to deny the motion to expunge.

               Thank you.

               [APPELLEE'S COUNSEL]: As far as the second case, Your
               Honor, the misdemeanor case and the child being - - the
               victim alleged to have been a child of 16 years old, I don't
               think there's any evidence in the record other than the
               prosecutor's objection from 2001 that states that. It wasn't an
               aggravating circumstance - - aggravating specification in the
               indictment. I don't believe it was ever proven or any evidence
               brought before the Court to show that the child was - - the
               victim was under 18.

               So I don't think the Court - - I know this isn't a true
               evidentiary hearing, but unless there's some evidence
               whatsoever that the victim was under 18, I don't think the
               Court can just take that under advisement respectfully.

(Tr. 4-5.)

       {¶ 4} The State responded to appellee's argument as follows:

               [PROSECUTOR]: Your Honor, if the age of the victim is an
               issue, we can - - we have a copy of his case on microfiche. I'm
               sure I can pull up the felony packet. So, if the Court would find
               that to be an issue, we can present the facts to the Court at a
               later date, not today or this afternoon - - or whenever the
               Court would feel appropriate.
No. 13AP-328                                                                             3



(Tr. 6.)

       {¶ 5} At the close of the hearing, the trial court made the following comments:

              THE COURT: I don't think they have to put it in the
              indictment that he was a minor in order to prevent it from
              being expunged later down the road. I'm going to take it under
              advisement, because it doesn't look like he's eligible, but I'll
              wait and make sure you have that evidence. It will probably be
              denied.

(Tr. 8.)
       {¶ 6} On March 21, 2013, the trial court issued an "Entry Sealing Record of
Conviction Pursuant to R.C. 2953.32." The trial court made no reference to the age of the
victim in its judgment entry. The State filed a notice of appeal on April 19, 2013.
       {¶ 7} Thereafter, on May 9, 2013, the State filed a "Motion to Correct the Record"
in the trial court. Attached thereto is the May 8, 2013 affidavit of Assistant Prosecutor
Jason Kester, wherein he avers:
              1. I was the assistant prosecutor assigned to expungement
              case number 12EP-950.

              2. On March 8, 2013, the matter was set for a hearing on the
              defendant's application, to which the State had objected. I
              appeared at the hearing and advised the court of our
              objection. The defendant claimed that the State did not prove
              that the victim was under 18, and the court continued the
              hearing.

              3. Later that day, I advised the court and opposing counsel
              that I had requested the felony packet, which would contain a
              copy of the victim's death certificate, and I had located
              newspaper headlines from the library referencing the victim's
              death.

              4. On March 14, 2013, I appeared with opposing counsel and
              showed the court a copy of the victim's death certificate,
              newspaper headlines from the library referencing the victim's
              death, and a citation to a related court of appeals' case.
No. 13AP-328                                                                              4


       {¶ 8} The trial court granted the State's motion to correct the record in an entry
dated May 29, 2013, which states that "[t]he record shall hereby include the contents of
the affidavit sworn and subscribed by Jason Kester, Assistant Prosecuting Attorney, on
May 8, 2013, and attached with the State's motion." On July 2, 2013, a supplemental
record was filed with the clerk of this court.
II. STANDARD OF REVIEW
       {¶ 9} We generally review a trial court's disposition of an application for an order
sealing the record of a conviction under the abuse of discretion standard.          State v.
Norfolk, 10th Dist. No. 04AP-614, 2005-Ohio-336, ¶ 4, citing State v. Hilbert, 145 Ohio
App.3d 824, 827 (8th Dist.2001). "An abuse of discretion * * * implies that the attitude of
the trial court was 'unreasonable, arbitrary or unconscionable.' " Id., quoting Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, where questions of law are in
dispute, an appellate court reviews the trial court's determination de novo. Id., citing
State v. Derugen, 110 Ohio App.3d 408, 410 (3d Dist.1996).
III. ASSIGNMENT OF ERROR
       {¶ 10} In its appeal, the State assigns the following assignment of error:
              THE TRIAL COURT ERRED WHEN IT GRANTED AN
              APPLICATION TO SEAL THE RECORD OF CONVICTION,
              IN CONTRAVENTION OF R.C. 2953.36(F), WHEN THE
              VICTIM OF THE OFFENSE WAS UNDER 18 YEARS OF
              AGE.

IV. LEGAL ANALYSIS
       {¶ 11} " ' "[E]xpungement is an act of grace created by the state," and so is a
privilege not a right.' " State v. Ritchie, 174 Ohio App.3d 582, 2007-Ohio-6577, ¶ 12 (5th
Dist.), quoting State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v. Hamilton,
75 Ohio St.3d 636, 639 (1996). In light of its nature, " '[e]xpungement should be granted
only when all requirements for eligibility are met.' " Id., quoting Simon at 533. A trial
judge must examine the entire record to determine whether the applicant is subject to
exclusion, and where exclusion is not apparent from the record, further inquiries outside
the record may be necessary. Simon at 535.
No. 13AP-328                                                                            5


       {¶ 12} R.C. 2953.31 through 2953.36 establishes a general statutory framework for
sealing criminal records. State v. Watson, 10th Dist. No. 12AP-771, 2013-Ohio-2111, ¶ 7.
Pursuant to R.C. 2953.32(A)(2), a first offender convicted of a misdemeanor may apply
for an order sealing the record of such conviction at the expiration of one year after the
offender's final discharge. However, R.C. 2953.36 precludes sealing of records for certain
convictions, in relevant part, as follows:
              Sections 2953.31 to 2953.35 of the Revised Code do not apply
              to any of the following:

              ***

              (F) Convictions of an offense in circumstances in which the
              victim of the offense was under eighteen years of age when the
              offense is a misdemeanor of the first degree or a felony.

       {¶ 13} The documents submitted by the State in conjunction with the motion to
correct the record appear to be copies of a Franklin County Coroner's report. However,
the copies are of such poor quality that the relevant information is undecipherable.
Indeed, upon examination, we are unable to reliably determine either the identity or age
of the decedent. Additionally, we note that there are no newspaper articles or other
documents contained in the supplemental record, even though Kester's affidavit refers to
such evidence.
       {¶ 14} In its March 21, 2013 judgment entry, the trial court found only that there
"are no criminal proceedings pending against the applicant," and that sealing the record
of his conviction was "consistent with the public interest." The trial court did not make
any findings regarding the age of the victim, nor did the court make any reference to the
evidence submitted by the State on March 14, 2013. Consequently, we are unable to
determine, on this record, whether the trial court considered the State's evidence of the
victim's age but found it to be unreliable, or simply disregarded reliable evidence and,
contrary to its earlier pronouncement, sealed the record of conviction.
       {¶ 15} The preclusive affect of R.C. 2936.32(F) is strictly construed against the
applicant. See Ritchie (R.C. 2936.32(F) precludes sealing of school bus driver's
misdemeanor conviction for transporting a firearm on the school bus even though the
No. 13AP-328                                                                                6


children did not know the bus driver had a firearm). Given the record in this case, and in
consideration of the preclusive affect of R.C. 2936.32(F), we conclude that the trial court
abused its discretion by failing to determine the age of the victim and set forth its findings
on the record.
       {¶ 16} Based upon the foregoing, appellant's sole assignment of error is sustained.
V. DISPOSITION
       {¶ 17} Having sustained appellant's sole assignment of error, we reverse the
judgment of the Franklin County Court of Common Pleas. Therefore, this matter is
remanded for the trial court to make a finding of the victim's age based upon the evidence
submitted by the State, and to re-determine the merits of appellee's application in light of
such finding.
                                                                        Judgment reversed;
                                                                           cause remanded.

                           KLATT, P.J., and TYACK, J., concur.
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