[Cite as Doss v. State, 2011-Ohio-6429.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96452



                                           IRAN DOSS
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                       STATE OF OHIO
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-665993

        BEFORE: E. Gallagher, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                   December 15, 2011
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ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor
By: John F. Manley
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

Mike DeWine
Ohio Attorney General
By: Richard Cholar, Jr.
Assistant Attorney General
Corrections Litigation Section
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215



EILEEN A. GALLAGHER, J.:

       {¶ 1} Appellant, the state of Ohio, appeals from the decision of the Cuyahoga

County Court of Common Pleas granting summary judgment in favor of appellee.         For

the following reasons, we affirm the judgment of the trial court.

       {¶ 2} Appellee was indicted on April 22, 2005, for two counts of rape in violation

of R.C. 2907.02(A)(1)(c) and one count of kidnapping with a sexual motivation in
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violation of R.C. 2905.01(A)(2) and (4) and R.C. 2941.147 stemming from events that

allegedly occurred on the night of December 31, 2004.    On March 27, 2006, a jury found

appellee guilty of one count of rape and one count of kidnapping and appellee was

sentenced to four years in prison.

       {¶ 3} On appeal in State v. Doss, Cuyahoga App. No. 88443, 2008-Ohio-449

(“Doss I”), this court found that the record contained insufficient evidence to sustain

appellee’s convictions.   We vacated those convictions and ordered him to be discharged

from prison.

       {¶ 4} On July 25, 2008, appellee filed a declaratory judgment action in the

Cuyahoga County Court of Common Pleas seeking a determination that he had been a

wrongfully imprisoned person as defined by R.C. 2305.02 and 2743.48. On July 2,

2010, appellee filed a motion for summary judgment relying solely on this court’s

decision in Doss I.   The state, relying on the transcripts from appellee’s criminal trial,

opposed appellee’s motion for summary judgment arguing that appellee had failed to

establish his innocence by a preponderance of the evidence.

       {¶ 5} On January 26, 2011, the trial court granted appellee’s motion for summary

judgment on the basis of our holding in Doss I.   Specifically, the trial court stated, “[t]he

court of appeals’ decision to reverse and vacate [appellee’s] conviction and order his

immediate release can only be interpreted to mean that either [appellee] was innocent of

the charges upon which he was convicted, or that no crime was committed by [appellee],
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or both.”   The state brought the present appeal, advancing the following sole assignment

of error:

       “The trial court erred in granting appellee’s motion for summary judgment when it
       held that the vacation of his criminal conviction on appeal could only mean actual
       innocence or that no crime was committed.”

       {¶ 6} Our review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Pursuant

to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party, said party being entitled to have the evidence construed most strongly

in his favor.   Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d

1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club (1998), 82 Ohio

St.3d 367, 369-370, 696 N.E.2d 201. The party moving for summary judgment bears the

burden of showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662

N.E.2d 264.

       {¶ 7} “The Ohio Revised Code provides a two-step process whereby a person

claiming wrongful imprisonment may sue the State for damages incurred due to the

alleged wrongful imprisonment.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 72,

1998-Ohio-275, 701 N.E.2d 1002, citing Walden v. State (1989), 47 Ohio St.3d 47, 547
                                           5

N.E.2d 962.   The first action, in the common pleas court, seeks a preliminary factual

determination of wrongful imprisonment.       Id.   The second action, in the Court of

Claims, provides for damages. Id.

      {¶ 8} A “wrongfully imprisoned individual” is defined in R.C. 2743.48(A) as an

individual who satisfies each of the following requirements:

      “(1) The individual was charged with a violation of a section of the Revised Code
      by an indictment or information prior to, or on or after, September 24, 1986, and
      the violation charged was an aggravated felony or felony.

      “(2) The individual was found guilty of, but did not plead guilty to, the particular
      charge or a lesser-included offense by the court or jury involved, and the offense
      of which the individual was found guilty was an aggravated felony or felony.

      “(3) The individual was sentenced to an indefinite or definite term of
      imprisonment in a state correctional institution for the offense of which the
      individual was found guilty.

      “(4) The individual’s conviction was vacated or was dismissed, or reversed on
      appeal, the prosecuting attorney in the case cannot or will not seek any further
      appeal of right or upon leave of court, and no criminal proceeding is pending, can
      be brought, or will be brought by any prosecuting attorney, city director of law,
      village solicitor, or other chief legal officer of a municipal corporation against the
      individual for any act associated with that conviction.

      “(5) Subsequent to sentencing and during or subsequent to imprisonment, an error
      in procedure resulted in the individual’s release, or it was determined by a court of
      common pleas that the offense of which the individual was found guilty, including
      all lesser-included offenses, either was not committed by the individual or was not
      committed by any person.”

      {¶ 9} In a wrongful imprisonment claim, the petitioner bears the burden of

proving by a preponderance of the evidence, his or her innocence.          Jones v. State,

Cuyahoga App. No. 96184, 2011-Ohio-3075, at ¶9, citing Suster, 84 Ohio St.3d at 72.
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In the present instance, the state argues that appellee, by relying solely on this court’s

decision in Doss I, has failed to establish his innocence by a preponderance of the

evidence.

      {¶ 10} This court has previously stated that “[e]vidence insufficient to prove guilt

beyond a reasonable doubt does not necessarily prove innocence by a preponderance of

the evidence as required by R.C. 2743.48.”    Id. at ¶11, citing Ratcliff v. State (1994), 94

Ohio App.3d 179, 640 N.E.2d 560. While we are mindful that a criminal insufficient

evidence finding does not necessarily lead to the conclusion that a defendant’s innocence

has been established by a preponderance of the evidence, we find that the uncontroverted

evidence in the record sub judice mandates that we affirm the trial court’s grant of

summary judgment.

      {¶ 11} As the trial court noted in its January 26, 2011 journal entry, the only

contested issue before the court was appellee’s innocence under R.C. 2743.48(A)(5).

None of the other elements under R.C. 2743.48(A) were disputed before the trial court.

      {¶ 12} The sole evidence before the trial court on summary judgment consisted of

trial transcripts from appellee’s criminal trial.1   This court previously reviewed this

evidence in State v. Doss, Cuyahoga App. No. 88443, 2008-Ohio-449, and concluded not


      1 The state of Ohio’s brief in opposition to plaintiff’s motion for summary
judgment references allegations made by the alleged victim in an amended
complaint from her civil suit against appellee. However, contrary to statements on
page 4 of the state’s brief, certified copies of this referenced amended complaint are
not attached to the state’s brief and not before the trial court on summary
judgment.
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only that the evidence was insufficient to sustain appellee’s convictions but that

appellee’s own statement describing the events was uncontradicted evidence in his favor

on elements of both the kidnapping and rape charges.

      {¶ 13} With respect to appellee’s conviction for kidnapping in violation of R.C.

2905.01(A)(2) and (4), this court, in reviewing the record, stated “no evidence was

presented showing force, threat, deception, or the restraint of liberty.”     Id. at ¶10.

“Nobody testified that [the alleged victim] went with [appellee] against her will, or that

[appellee] restrained her in any way.”       Id. at ¶10.     This court explicitly stated,

“[appellee’s] statement maintained that the ride home, as well as the sex, was consensual.

 No evidence contradicts, or even questions, this.”   Id. at ¶10.

      {¶ 14} With respect to appellee’s conviction for rape in violation of R.C.

2907.02(A)(1)(c), this court noted the challenge of distinguishing permissible sexual

conduct with a person who is merely intoxicated from impermissible sexual conduct with

someone who is substantially impaired. Id. at ¶18.

      {¶ 15} We noted that “[t]he only evidence in the record of events happening

between 2:30 and 8:00 a.m. on New Year’s Day is [appellee’s] statement.”       Id. at ¶23.

After reviewing the evidence in the record, this court stated, “[t]he only evidence about

[the alleged victim’s] mental condition at the time of the alleged rape is found in

[appellee’s] statement.   A careful review of this statement reveals no evidence that

[appellee] knew, or should have known, that J.P.’s ‘ability to resist or consent is
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substantially impaired because of voluntary intoxication.’”     Id. at ¶23.     We noted that

“the state presented no evidence in opposition to appellee’s statement.”      Id. at ¶20.

       {¶ 16} This court concluded, “[t]he evidence shows that [appellee] had consensual

sex with a woman who had been drinking alcohol, albeit while his girlfriend was in the

other room.   [Appellee] gave a detailed description of [the alleged victim’s] consensual

conversation with him, and [her] not only being aware, but being in control, of her

actions.   From all accounts, and as strange as this ‘good Samaritan’ scenario may seem,

[her] decision to go home and sleep with [appellee] was just as voluntary as her

intoxication on New Year’s Eve.”     Id. at ¶25.

       {¶ 17} Based upon the unique circumstances presented in this case, specifically the

uncontradicted evidence in the form of     appellee’s own statement recounting the events

of the night in question, and the fact that the state introduced no further evidence beyond

the criminal record discussed above, we find no error in the trial court’s conclusion that

the state of Ohio failed to raise a genuine issue of fact in regards to any of the elements

under R.C. 2743.48(A).

       {¶ 18} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.
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       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



       EILEEN A. GALLAGHER, JUDGE

       LARRY A. JONES, J., CONCURS;
       FRANK D. CELEBREZZE, JR., P.J., DISSENTING WITH
       SEPARATE OPINION

       FRANK D. CELEBREZZE, JR., P.J., DISSENTING:

       {¶ 19} I respectfully dissent because Doss has not demonstrated that he is entitled

to judgment as a matter of law.

       {¶ 20} In his two-page motion for summary judgment, Doss only points to the

decision of this court reversing his convictions. The Ohio Supreme Court has instructed

that “a previous finding of not guilty is not sufficient to establish innocence. The

petitioner seeking to establish a claim for wrongful imprisonment must produce more

evidence than a judgment of acquittal, which is merely a judicial finding that the state did

not prove its case beyond a reasonable doubt.” Ellis v. State, 64 Ohio St.3d 391, 393,

1992-Ohio-25, 596 N.E.2d 428, 430. The petitioner carries the burden of proof in

affirmatively establishing his or her innocence under R.C. 2743.48(A)(5). State ex rel.

Jones v. Suster, 84 Ohio St.3d 70, 72, 1998-Ohio-275, 701 N.E.2d 1002.

       {¶ 21} The differing burdens of proof are key to distinguishing why a vacation of

Doss’s conviction does not prove his innocense. Our holding in Doss I does not mean
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that Doss is innocent — merely that, based upon the evidence the state presented, Doss’s

guilt could not be established beyond a reasonable doubt.               The same cannot

automatically be said of whether Doss can show by a preponderance of the evidence that

he did not know or reasonably should not have known of the victim’s incapacity.

Ratcliff v. State (1994), 94 Ohio App.3d 179, 182, 640 N.E.2d 560 (“[A]n appellate

court’s reversal of a criminal conviction does not require a court to find that the claimant

was not engaging in criminal conduct at the time in question. Evidence insufficient to

prove guilt beyond a reasonable doubt does not necessarily prove innocence by a

preponderance of the evidence.”).

       {¶ 22} This is not a case where the evidence is so clear that Doss can be found to

be innocent solely on this court’s prior opinion, especially, as the dissenting opinion

points out, where “[a]t least to some eyewitnesses, the victim was displaying signs of

being too intoxicated to perform ordinary functions” and “[t]he majority opinion is full of

instances illustrating the victim’s overtly high level of intoxication.” Doss I at ¶30,

(Sweeney, J., dissenting).
