[Cite as Johnson v. State, 2017-Ohio-4181.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104838




                                   SHAYLA JOHNSON
                                                       PLAINTIFF- APPELLEE

                                                 vs.

                                      STATE OF OHIO

                                                       DEFENDANT-APPELLANT




                                     JUDGMENT:
                                 REVERSED; REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-814379

        BEFORE:          E.A. Gallagher, P.J., Stewart, J., and Jones, J.

        RELEASED AND JOURNALIZED:                      June 8, 2017
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Brian R. Gutkoski
Assistant Prosecuting Attorney
1200 Ontario Steet
Justice Center, 8th Floor
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Marcus R. Sidoti
Mary Catherine O’Neill Corrigan
Jordan & Sidoti, L.L.P.
50 Public Square
Terminal Tower, Suite 1900
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1}    Defendant-appellant, the state of Ohio, appeals from the judgment of the

Cuyahoga County Court of Common Pleas finding plaintiff-appellee Shayla Johnson to

be a wrongfully imprisoned individual under R.C. 2743.48(A).                For the following

reasons, we reverse and remand.

       Facts and Procedural Background

       {¶2} Johnson was convicted of drug trafficking, drug possession and possessing

criminal tools stemming from a November 2, 2011 controlled buy/ bust operation

conducted by the vice unit of the Cleveland Police Department.           This court overturned

Johnson’s convictions in State v. Johnson, 8th Dist. Cuyahoga No. 98966,

2013-Ohio-2692, finding that the state failed to present sufficient evidence to support the

charges against her.   Id. at ¶ 14.

       {¶3} On September 25, 2013, Johnson filed a complaint against the state for

wrongful imprisonment seeking to recover the approximately 11-month period she was

incarcerated on the above charges.      The case proceeded to a bench trial. At the onset of

trial, the state stipulated that it was not contesting elements one, two or three of the five

part definition of a “wrongfully imprisoned individual” under R.C. 2743.48(A). The

record reflects that the state did contest both the fourth and fifth elements at trial.

       {¶4} The trial court found in favor of Johnson and issued a judgment entry

explaining its decision. It found that the state had stipulated that Johnson satisfied the

fourth element for wrongful imprisonment, R.C. 2743.48(A)(4), in addition to the first
three elements.   The trial court then made a number of factual findings pertaining to the

fifth element, R.C. 2743.48(A)(5), and found in favor of Johnson on that element. It

concluded that Johnson had met her burden in demonstrating that she was a wrongfully

imprisoned person under the statute.

       Law and Analysis

       I. Erroneous Stipulation

       {¶5} In its first assignment of error, the state argues that the trial court failed to

properly rule on the fourth element of wrongful imprisonment under R.C. 2743.48(A)(4).

 This error is plain from the record that reflects that the state stipulated only to the first

three elements of the statute and contested both R.C. 2743.48(A)(4) and (A)(5) both on

summary judgment and at trial. It is not the province of this court to usurp, in the first

instance, the fact finding role of the trial court. State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus (“the weight to be given the evidence

and the credibility of witnesses are primarily for the trier of facts”).   Because it is clear

from the record that the trial court relied upon the incorrect belief that the state had

stipulated to the fourth element and did not engage in the necessary fact finding with

respect to R.C. 2743.48(A)(4), we reverse and remand for proper consideration of that

element.

       {¶6} In light of our conclusion that the trial court has yet to fulfill its fact–

finding duty with respect to all elements of R.C. 2743.48, we find that consideration of
the state’s second assignment of error, a manifest weight challenge to the trial court’s

ruling, to be inappropriate at this juncture.

       {¶7} Finally, we note that the trial court in the criminal case underlying this action,

to-wit: Cuyahoga C.P. No. CR-11-556207-C erroneously entered a dismissal without

prejudice on September 16, 2013. Pursuant to this court’s opinion in Johnson, 8th Dist.

Cuyahoga No. 98966, 2013-Ohio-2692, the dismissal of the criminal case should be with

prejudice.

       {¶8} The judgment of the trial court is reversed and remanded to the lower court

for further proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee the 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.



______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MELODY J. STEWART, J., and
LARRY A. JONES, SR., J., CONCUR
