[Cite as Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678.]




              DOSS, APPELLEE, v. THE STATE OF OHIO, APPELLANT.
           [Cite as Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678.]
Wrongful imprisonment—R.C. 2743.48—Claimant in common pleas court cannot
        be declared eligible for compensation in Court of Claims unless claimant
        has affirmatively demonstrated that he is actually innocent of charges for
        which he was imprisoned—Acquittal or finding of legal insufficiency of
        evidence is not enough to establish actual innocence.
 (No. 2012-0162—Submitted September 26, 2012—Decided December 6, 2012.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 96452, 2011-Ohio-6429.
                                  __________________
                               SYLLABUS OF THE COURT
1. One who claims to be a “wrongfully imprisoned individual” under R.C.
        2743.48 must prove all of the factors in R.C. 2743.48(A) by a
        preponderance of the evidence before seeking compensation from the state
        for wrongful imprisonment.
2. A trial court adjudicating proof of innocence pursuant to R.C. 2743.48(A)(5)
        may not find that the claimant was wrongfully imprisoned based solely on
        an appellate court judgment vacating a felony conviction due to
        insufficient evidence and discharging the prisoner without a remand for a
        new trial.
                                  __________________
        LANZINGER, J.
        {¶ 1} In this case, we determine that Iran Doss is not entitled to summary
judgment that he is a “wrongfully imprisoned individual” eligible to sue the state
for compensation pursuant to R.C. 2743.48 based solely on the appellate court’s
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decision to reverse and vacate his conviction and order his immediate release
from prison. We therefore reverse the judgment of the court of appeals and
remand to the trial court for further proceedings.
                                   I. Background
        {¶ 2} Appellee, Iran Doss, was convicted by a jury in 2006 of one count of
rape and one count of kidnapping. He was classified as a sexually oriented
offender, sentenced to four years in prison, and ordered to pay restitution and a
fine.
        {¶ 3} On appeal, Doss challenged his rape and kidnapping convictions on
several grounds, including a challenge to the evidence that the alleged victim’s
ability to consent was substantially impaired due to a mental or physical condition
and that Doss knew of that substantial impairment. The Eighth District, in a two-
to-one decision, concluded that there was sufficient evidence to support a finding
that the other party’s capacity to consent was substantially impaired and that Doss
knew (or had reason to know) of the substantial impairment. State v. Doss, 8th
Dist. No. 88443, 2007-Ohio-6483 (“Doss I”).
        {¶ 4} Upon reconsideration, a split panel vacated both the kidnapping and
the rape convictions. State v. Doss, 8th Dist. No. 88443, 2008-Ohio-449 (“Doss
II”). The Doss II majority held that the state failed to present sufficient evidence
showing that Doss knew or had reason to know that the alleged victim’s ability to
consent was substantially impaired.      Id. at ¶ 21-23.   The court vacated the
convictions and ordered Doss discharged from prison.
        {¶ 5} The state appealed the vacation of the rape conviction, but we
declined review. State v. Doss, 118 Ohio St.3d 1507, 2008-Ohio-3369, 889
N.E.2d 1025. After his release, Doss filed an action for declaratory judgment
pursuant to R.C. 2743.48 in the Cuyahoga County Court of Common Pleas,
seeking compensation from the state for wrongful imprisonment. On July 2,
2010, he filed a motion for summary judgment, citing the decision in Doss II.



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The motion, which contained no attachments or exhibits, was two and a half
pages long and cited only the appellate judgment in Doss II as a basis for finding
eligibility. The state opposed the motion for summary judgment, offering the
transcripts from the criminal trial to show that there were issues of fact and
arguing that Doss had failed to establish his innocence by a preponderance of the
evidence.
       {¶ 6} The trial court granted Doss’s motion for summary judgment for the
following reason: “The court of appeals’ decision to reverse and vacate plaintiff
Doss’s conviction and order his immediate release can only be interpreted to
mean that either plaintiff Doss was innocent of the charges upon which he was
convicted, or that no crime was committed by plaintiff Doss, or both.”
       {¶ 7} The court of appeals affirmed the grant of summary judgment, in yet
another two-to-one decision. Doss v. State, 8th Dist. No. 96452, 2011-Ohio-6429
(“Doss III”). The majority reiterated that its review of the record in Doss II had
revealed that Doss’s statement was the only evidence of the alleged victim’s
mental condition and that the state had presented no evidence that Doss knew, or
should have known, that the alleged victim’s ability to resist or consent was
substantially impaired because of voluntary intoxication. Id. at ¶ 15. The court of
appeals found no genuine issue of fact and no error in the trial court’s entry of
summary judgment.
       {¶ 8} The dissenting judge stated,


       Our holding in [Doss II] does not mean 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.



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Id. at ¶ 21 (Celebrezze, J., dissenting).
        {¶ 9} We accepted jurisdiction to address the state’s propositions of law:
(1) “A trial court adjudicating a contested claim of innocence may not grant
summary judgment in favor of a former inmate based solely on an appeals court
finding that a criminal conviction was not supported by sufficient evidence” and
(2) “Under R.C. 2743.48 an inmate must prove actual innocence by a
preponderance of the evidence, which is a separate and distinct legal standard
than whether [sic] the evidence in a criminal case is sufficient to convict a person
beyond a reasonable doubt.” See Doss v. State, 131 Ohio St.3d 1498, 2012-Ohio-
1501, 964 N.E.2d 439.
                                     II. Analysis
        {¶ 10} The General Assembly has developed a two-step process to
compensate those who have been wrongfully imprisoned. The first step is an
action in the common pleas court seeking a preliminary factual determination of
wrongful imprisonment; the second step is an action in the Court of Claims to
recover money damages. Griffith v. Cleveland, 128 Ohio St.3d 35, 2010-Ohio-
4905, 941 N.E.2d 1157, paragraph two of the syllabus.               The wrongful-
imprisonment statute, R.C. 2743.48, was added to the Revised Code in 1986 by
Sub.H.B. No. 609 “to authorize civil actions against the state, for specified
monetary amounts, in the Court of Claims by certain wrongfully imprisoned
individuals.” 141 Ohio Laws, Part III, 5351. The statute was designed to replace
the former practice of compensating those wrongfully imprisoned by ad hoc
moral-claims legislation. Walden v. State, 47 Ohio St.3d 47, 49, 547 N.E.2d 962
(1989). Under the statutory scheme, a claimant must be determined to be a
“wrongfully imprisoned individual” by the court of common pleas before being
permitted to file for compensation against the state of Ohio in the Court of




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Claims. R.C. 2305.02 and 2743.48(B)(2); Griffith v. Cleveland, paragraph two of
the syllabus.
The Wrongful-Imprisonment Statute
       {¶ 11} R.C. 2743.48 provides:


                (A) As used in this section and section 2743.49 of the
       Revised Code, a “wrongfully imprisoned individual” means an
       individual who satisfies each of the following:
                (1) The individual was charged with a violation of a section
       of the Revised Code by an indictment or information, 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, 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 the court of common pleas in the



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       county where the underlying criminal action was initiated that the
       charged offense, including all lesser-included offenses, either was
       not committed by the individual or was not committed by any
       person.


(Emphasis added.)
       {¶ 12} Thus, a plaintiff in a civil case for wrongful imprisonment must
first prove that he or she is a “wrongfully imprisoned individual.” In this case,
proof of the factors in R.C. 2743.48(A)(1) through (4) is undisputed. Doss was
convicted of a felony to which he did not plead guilty, he was sentenced to a
prison term, his conviction was vacated upon appeal, and he is not subject to
further charges. The fifth factor of R.C. 2743.48(A) may be fulfilled in one of
two ways: (1)       subsequent to sentencing and during or subsequent to
imprisonment, “an error in procedure resulted in the individual’s release” or (2)
the charged offense (and any lesser included offense) was not committed by the
individual or no crime was committed at all (actual innocence).              R.C.
2743.48(A)(5).
       {¶ 13} This court’s decision in Walden v. State, 47 Ohio St.3d 47, 547
N.E.2d 962, precludes a claimant from relying solely on a judgment of acquittal to
establish actual innocence.    In Walden, the state appealed determinations of
wrongful imprisonment for two individuals. One of them, Linda Walden, had
been acquitted of murder. When she sought a determination that she had been
wrongfully imprisoned, the trial court granted summary judgment in her favor,
reasoning that the judgment of acquittal precluded the state from contesting her
innocence. The state’s appeal was consolidated with its appeal in the case of
Nathaniel Ellis. Ellis had been convicted of felonious assault, but the court of
appeals reversed and remanded for a new trial. On retrial, Ellis was acquitted by
a general verdict, after which he sought a determination that he was a wrongfully



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imprisoned individual.      The trial court held that Ellis was entitled to
compensation. In nearly identical opinions released on the same day, the court of
appeals held that the two defendants were entitled to compensation for wrongful
imprisonment.
       {¶ 14} In construing a former version of R.C. 2743.48(A), we held that
when a person claiming compensation for wrongful imprisonment has obtained a
judgment of acquittal, that judgment is not to be given preclusive effect, because
an acquittal is a determination that the state has not met its burden of proof. It is
not necessarily a finding that the accused is innocent. For this reason, a claimant
advancing a wrongful-imprisonment claim “must affirmatively prove her
innocence by a preponderance of the evidence.” Id. at 52. We explained that in
enacting the statute, the “General Assembly intended that the court of common
pleas actively separate those who were wrongfully imprisoned from those who
have merely avoided criminal liability.” Id. Even though the statute examined in
Walden was an earlier version of R.C. 2743.48, the Walden holding is still
applicable. Griffith v. Cleveland, 128 Ohio St.3d 35, 2010-Ohio-4905, 941 N.E.2d
1157, ¶ 30. R.C. 2743.48(A)(5) requires an affirmative showing of innocence
beyond proof of an acquittal.
       {¶ 15} When a court vacates or reverses a criminal conviction based on
insufficiency of the evidence, the court is saying that the state has not proven the
elements of the offense beyond a reasonable doubt; it is not saying that innocence
has been proven.     Thus, reversal on insufficiency of the evidence does not
automatically mean that the defendant was wrongfully imprisoned. Chandler v.
State, 95 Ohio App.3d 142, 641 N.E.2d 1382 (8th Dist.1994). If the legislature
had intended to compensate all persons whose convictions are reversed based on
insufficient evidence, it could have explicitly stated this in R.C. 2743.48. See
Ratcliff v. State, 94 Ohio App.3d 179, 182, 640 N.E.2d 560 (4th Dist.1994).




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       {¶ 16} In this case, Doss argues that the vacation of his convictions and
discharge from prison are proof of his actual innocence. In contrast, the state
asserts that R.C. 2743.48 establishes a civil rather than a criminal action and that
in contrast with the burden of proof in a criminal trial, the wrongful-imprisonment
statute places the burden of proof on the claimant to affirmatively show by a
preponderance of the evidence that he or she was actually innocent of the charged
offense, including all lesser included offenses. A judgment of acquittal is not
enough. The state contends that in support of his action for declaratory judgment,
Doss did not provide the trial court with any additional evidence to prove that the
other party consented, or that he did not know and could not reasonably have
known of any impairment of her ability to consent, or any other proof of his actual
innocence of the charge of rape and all lesser included offenses. The trial and
appellate courts, therefore, granted Doss a preliminary determination of eligibility
for compensation without the required affirmative proof of his actual innocence.
       {¶ 17} The differing burdens of proof explain why a vacation of Doss’s
conviction does not prove his innocence.       The appellate court held that the
evidence was insufficient to sustain the convictions and that the state failed to
prove Doss’s guilt beyond a reasonable doubt. But that ruling does not answer
the question whether Doss can show by a preponderance of the evidence that he
did not know, or could not reasonably have known, of the alleged victim’s
incapacity.   See Ratcliff v. State at 182 (evidence insufficient to prove guilt
beyond a reasonable doubt does not necessarily prove innocence by a
preponderance of the evidence). Preponderance of the evidence is a distinct legal
standard from beyond a reasonable doubt. By not requiring more of Doss, the
lower courts contravened the mandate of R.C. 2743.48(A)(5) by dispensing with
the additional requirement of affirmative proof that the criminal action was not
committed by him or by any person. Even though Doss’s successful appeal may
have provided some support for his claim of wrongful imprisonment, it is not



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enough. He had the burden of proof to affirmatively establish his innocence
under R.C. 2743.48(A)(5). State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70,
72, 701 N.E.2d 1002 (1998).
Proof Offered to Support Summary Judgment
       {¶ 18} To analyze whether Doss affirmatively established his innocence
by a preponderance of the evidence, we must examine the evidence that he
submitted in support of his motion for summary judgment. To prevail on the
motion, he must have demonstrated that there was no genuine issue of material
fact, that he was entitled to judgment as a matter of law, and that reasonable
minds, viewing the evidence in the light most favorable to the nonmoving party,
can come to only one conclusion, which is adverse to the nonmoving party.
Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d
481, ¶ 29. Appellate review is de novo. Id.
       {¶ 19} The record shows that Doss filed his motion for summary judgment
relying solely on the Eighth District’s decision in Doss II. And the trial court
granted summary judgment on that basis alone. Specifically, the trial court stated:


       The court of appeals’ decision to reverse and vacate plaintiff
       Doss’s conviction and order his immediate release can only be
       interpreted to mean that either plaintiff Doss was innocent of the
       charges upon which he was convicted, or that no crime was
       committed by plaintiff Doss, or both.


(Emphasis added.)
       {¶ 20} This conclusion was incorrect. The trial court relied solely on the
court of appeals’ reversal and vacation of the conviction to hold that Doss was
entitled to judgment as a matter of law. It did not require a hearing or additional
evidence. It simply cited the court of appeals’ holding that the state had not



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offered sufficient evidence to prove Doss’s convictions. And in affirming the trial
court’s grant of summary judgment, the Eighth District correctly acknowledged
Walden’s rule that an acquittal does not necessarily establish actual innocence, but
then applied the rule incorrectly. Despite the jury’s verdict of guilty and without
any evidence from Doss, the majority held that the record showed insufficient
evidence of the alleged victim’s substantial impairment. Thus, the judgment of
the trial court that found Doss to be eligible for compensation and the appellate
court’s judgment affirming that finding were not based upon an affirmative
showing of actual innocence. They were based on a dearth of evidence of guilt.
Both courts relieved Doss of his statutory obligation to prove by a preponderance
of the evidence that he did not commit the charged offense, including all lesser
included offenses, an obligation that must be fulfilled before he is allowed to
claim the status of one who was “wrongfully imprisoned.”
       {¶ 21} To show actual innocence under the wrongful-imprisonment
statute, Doss must prove that “the charged offense, including all lesser-included
offenses, either was not committed by [him] or was not committed by any
person.” R.C. 2743.48(A)(5). This court has emphasized that this standard is not
satisfied by an acquittal or a finding of legal insufficiency of the evidence.
Walden, 47 Ohio St.3d at 52, 547 N.E.2d 962. 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.
                                  III. Conclusion
       {¶ 22} Not every person who is released from prison because of a
successful appeal is entitled to compensation.        The legislature set forth a
procedure for claimants like Doss to follow in R.C. 2743.48, so that the common
pleas court could actively separate demonstrably innocent persons who have been
wrongfully imprisoned from persons who have merely avoided criminal liability.



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We hold that one who claims to be a “wrongfully imprisoned individual” under
R.C. 2743.48 must prove all of the factors in R.C. 2743.48(A) by a preponderance
of the evidence before seeking compensation from the state for wrongful
imprisonment. We also hold that a trial court adjudicating proof of innocence
pursuant to R.C. 2743.48(A)(5) may not find that a claimant has been wrongfully
imprisoned based solely on an appellate court judgment vacating a felony
conviction due to insufficient evidence and discharging the prisoner without a
remand for a new trial. We therefore reverse the judgment of the court of appeals
and remand this matter to the trial court for further proceedings.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, CUPP,
and MCGEE BROWN, JJ., concur.
                              __________________
       Mancino, Mancino & Mancino and Paul Mancino Jr., for appellee.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Matthew P. Hampton, Deputy Solicitor; and William D. Mason,
Cuyahoga County Prosecuting Attorney, and John F. Manley and T. Allan Regas,
Assistant Prosecuting Attorneys, for appellant.
                            ______________________




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