[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.
