[Cite as Williams v. State, 2013-Ohio-1040.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98741



                                      IVAN WILLIAMS
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                       STATE OF OHIO
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                REVERSED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-679841

        BEFORE:          Celebrezze, P.J., Jones, J., and Keough, J.

        RELEASED AND JOURNALIZED:                       March 21, 2013
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Dale F. Pelsozy
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Ken McDuffie
Ken McDuffie & Associates
5311 Northfield Road
Suite 315
Bedford Heights, Ohio 44146
FRANK D. CELEBREZZE, JR., P.J.:

      {¶1} Appellant, the state of Ohio, appeals the grant of summary judgment in

favor of appellee, Ivan Williams, in an action seeking classification as a wrongfully

imprisoned person in order to obtain compensation from the state. The state argues that

the trial court could not grant summary judgment in Williams’s favor because he did not

meet his burden of showing that he was actually innocent of the crimes of which he was

convicted. After a thorough review of the record and case law, we reverse the trial

court’s grant of summary judgment.

                            I. Factual and Procedural History

      {¶2} Appellee was convicted of aggravated robbery following a jury trial. He

appealed to this court regarding the denial of his motion to suppress. This court has

previously given a recitation of the facts in State v. Williams, 172 Ohio App.3d 646,

2007-Ohio-3266, 876 N.E.2d 991, ¶ 2-3 (8th Dist.):

      The victim in this case, Rico Dancy, is [hearing impaired], and on the night
      in question, was visiting a young woman, who is also [hearing impaired], at
      her home in Cleveland, Ohio. At the end of the evening, the young
      woman’s mother offered to drive Dancy to a bus stop at East 187th and
      St. Clair, to await transportation home. They arrived at the bus stop
      sometime just after midnight. Dancy testified the mother handed him three
      $100 bills as a birthday present and he put the bills in his left pocket. Dancy
      had with him a Sidekick II, an electronic device into which he could type
      and thereby communicate with others. Dancy testified that his back was to
      the street and he was typing a communication to the young woman
      previously mentioned, when he felt a gun at the side of his head. Although
      he was looking out of the corner of his eye, he was able to describe the gun
      as a black .45 caliber revolver. He testified that the robber reached into his
      pocket, removed the three $100 bills, walked across the street to a parking
      lot, got into his car, and drove past him as he left.
       Dancy used his Sidekick II to summon the Cleveland police, who promptly
       arrived at the scene. Dancy testified that he told the police that the robber
       was dressed all in blue, was approximately 5’8” or 5’9” (his height), had on
       a blue do-rag, and was driving a blue four-door Lexus with temporary tags.
       He testified, “[t]hey took my report, and an officer said, if we catch this guy
       tonight, can we please come and get you. I said, yeah, you can come to my
       house. I gave them my home address.” The police did, in fact, come to
       Dancy’s house some 2-1/2 hours later. They took him to a location where he
       remained in the police car, and, through the window, viewed a black man at
       a distance of some 20 feet, a man with a police spotlight focused on him, or
       under a street lamp, depending upon whose testimony is to be believed.
       Dancy immediately identified appellant as the robber, and was “100%
       certain” of this identification. Dancy was never shown the car. No further
       identification procedures were initiated or pursued.

       {¶3} This court, in a split decision, determined that Dancy’s eyewitness

identification should have been suppressed because of the procedure used and the

inconsistencies in the description and testimony of this witness.

       {¶4} After remand, the state did not seek to retry Williams. He then filed a

complaint for classification as a wrongfully imprisoned person on December 22, 2008.

The parties filed cross-motions for summary judgment, and Williams also filed a motion

to exclude Dancy’s testimony. Williams’s summary judgment motion relied on this

court’s vacation of his conviction and an affidavit from his fiancée that Williams was in

her hospital room from 10:00 p.m. until 2:30 a.m. on the night in question. The state

responded, disputing the alibi witness’s affidavit with the statement Williams made to

police that he did not leave his house until 10:40 p.m. Williams’s statement goes on to

say that he went to his cousin’s house for a short time and then went to Euclid Hospital to

have his knee examined. He stated he arrived at the hospital between 11:30 p.m. and

midnight. He then said he visited his fiancée until approximately 2:30 a.m.
      {¶5} On December 23, 2010, the trial court granted both of Williams’s motions.

Regarding summary judgment, the court found that the eyewitness identification was

unreliable according to this court’s ruling and that Williams had submitted uncontradicted

alibi evidence that demonstrated he did not rob Dancy because he was at the hospital.

      {¶6} The state appeals the trial court’s ruling, citing one assignment of error:

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

                                  II. Law and Analysis

      {¶7} The state of Ohio has waived its general immunity to suit for those

wrongfully imprisoned. In order to receive compensation, a two-step process must be

undertaken. Walden v. State, 47 Ohio St.3d 47, 49-50, 547 N.E.2d 962 (1989). First, a

party must petition the common pleas court for a declaration that the individual meets the

statutory definition of a wrongfully imprisoned person. R.C. 2305.02. Next, the party

must file a claim in the Ohio Court of Claims. R.C. 2743.48(D).

      {¶8} Here, the trial court found that Williams was a wrongfully imprisoned person

through summary judgment.

      Civ.R. 56(C) specifically provides that before summary judgment may be
      granted, it must be determined that: (1) No genuine issue as to any material
      fact remains to be litigated; (2) the moving party is entitled to judgment as a
      matter of law; and (3) it appears from the evidence that reasonable minds
      can come to but one conclusion, and viewing such evidence most strongly
      in favor of the party against whom the motion for summary judgment is
      made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
      {¶9} It is well established that the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38

Ohio St.3d 112, 115, 526 N.E.2d 798 (1988).

      {¶10} This court reviews the lower court’s granting of summary judgment de

novo. Brown v. Scioto Cty. Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th

Dist.1993). An appellate court reviewing the grant of summary judgment must follow

the standards set forth in Civ.R. 56(C). “The reviewing court evaluates the record * * *

in a light most favorable to the nonmoving party. * * * [T]he motion must be overruled

if reasonable minds could find for the party opposing the motion.” Saunders v. McFaul,

71 Ohio App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990).

      {¶11} Under R.C. 2743.48(A), a wrongfully imprisoned person, as it relates to this

case, is defined as an individual found guilty of a felony and sentenced to a prison term

whose conviction was vacated or reversed on appeal where the charges or any related

charges will not or cannot be brought again, and “the offense of which the petitioner was

found guilty was not committed by the petitioner or was not committed at all.” State ex

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

      {¶12} Those wrongfully imprisoned by the state of Ohio may seek compensation

for their ordeal through a mechanism enacted by the state legislature embodied by R.C.

2743.48. However, they carry a heavy burden to show that they were actually innocent

or that no crime occurred. R.C. 2743.48(A)(5). They must show that “the charged
offense, including all lesser-included offenses, either was not committed by [them] or was

not committed by any person.”       Id.   That means a technically deficient conviction

reversed on appeal is not a sufficient demonstration of actual innocence. The Ohio

Supreme Court has held that

       this standard is not satisfied by an acquittal or a finding of legal
       insufficiency of the evidence. The General Assembly requires a showing of
       innocence to be made affirmatively and adjudicated de novo before a
       claimant can be found to be eligible for compensation in a
       wrongful-imprisonment action. (Citations omitted.)

State v. Doss, __ Ohio St.3d __, 2012-Ohio-5678, ¶ 21. This is because of different

standards used in criminal and civil proceedings. In a criminal trial, the state must prove

beyond a reasonable doubt that all the elements of a given criminal statute were satisfied

while complying with constitutional protections afforded to criminal defendants. But in

civil proceedings seeking classification as a wrongfully imprisoned person, those seeking

such classification must show actual innocence by a preponderance of the evidence

without the benefit of those same constitutional protections. Id. at 22. For instance, in

criminal proceedings, a violation of a Fourth Amendment right may preclude evidence

from being admitted, while a civil proceeding does not have the same prohibition.

Generally, rules of evidence and rules of civil procedure govern the introduction of

evidence in civil cases.

       {¶13} Accordingly, a pretrial motion for exclusion of evidence, or motion in

limine, may properly be granted by the trial court in certain circumstances, but those
rulings are preliminary in nature and subject to reconsideration by the trial court at the

time such evidence is relevant at trial.

       A ruling on a motion in limine reflects the court’s anticipated treatment of
       an evidentiary issue at trial and, as such, is a tentative, interlocutory,
       precautionary ruling. Thus, “the trial court is at liberty to change its ruling
       on the disputed evidence in its actual context at trial. Finality does not
       attach when the motion is granted.”

State v. French, 72 Ohio St.3d 446, 450, 1995-Ohio-32, 650 N.E.2d 887, quoting

Defiance v. Kretz, 60 Ohio St.3d 1, 4, 573 N.E.2d 32 (1991).

       {¶14} Here, this court determined that the eyewitness one-on-one “show up”

identification of Williams by Dancy was improperly conducted, lacked reliability, and

should have been suppressed. Given that suppression, the state had little evidence on

which to retry him. However, this suppression does not show that Williams was actually

innocent of the crime for which he was found guilty.

       {¶15} The Ohio Supreme Court has repeatedly held that reliance solely on a

reversed conviction based on insufficient evidence does not carry the burden of

demonstrating actual innocence in the context of summary judgment. See Walden v.

State, 47 Ohio St.3d 47, 49, 547 N.E.2d 962 (1989); Doss, 2012-Ohio-5678.

       {¶16} The state argues that the trial court relied solely on this court’s reversal of

Williams’s conviction.       But the trial court also found that Williams offered

uncontroverted alibi evidence. The affidavit provided by his fiancée and attached to his

motion for summary judgment indicated Williams was at the hospital visiting his fiancée

from 10:00 p.m. until 2:30 a.m.        However, this statement was contradicted by the
statement Williams made to police after he was arrested. In that statement, he indicated

he left his house at approximately 10:40 p.m. and went to his cousin’s house. There he

got directions to the hospital.     He arrived at the hospital between 11:30 p.m. and

midnight to have his knee examined. However, Williams did not receive treatment.

Instead, he visited his fiancée until approximately 2:30 a.m.

       {¶17} The two statements conflict as to Williams’s location at the time of the

robbery. The hospital is in close proximity to the location of the robbery. The conflict

between the affidavit and Williams’s prior statement leaves a question of fact regarding

his alibi at the time of the robbery. Examining this evidence in a light most favorable to

the state, it cannot be said that Williams has incontrovertibly established an alibi showing

he was actually innocent. Several questions of fact remain, including whether Williams

was at the hospital at the time of the robbery.

                                       III. Conclusion

       {¶18} Here, the question of Williams’s alibi at the time of the robbery is in doubt

because the statement Williams gave to police shortly after his arrest, which the state

attached to its brief in opposition to summary judgment, conflicts with the affidavit

Williams attached to his motion. Therefore, summary judgment was inappropriate and a

hearing is required.

       {¶19} Therefore, the trial court’s grant of summary judgment in favor of Williams

is reversed.
       {¶20} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of said 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR
