[Cite as State v. Byrum, 2013-Ohio-533.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




STATE OF OHIO,                                   :

        Plaintiff-Appellee,                      :     CASE NO. CA2012-06-055

                                                 :             OPINION
   - vs -                                                       2/19/2013
                                                 :

NATHAN D. BYRUM,                                 :

        Defendant-Appellant.                     :



                    CRIMINAL APPEAL FROM MASON MUNICIPAL COURT
                                Case No. 07 CRB 00571



Bethany S. Bennett, Mason City Prosecutor, Matthew Nolan, 5950 Mason Montgomery
Road, Mason, Ohio 45040, for plaintiff-appellee

Droder & Miller Co., L.P.A., Jeffrey T. Kenney, 125 West Central Parkway, Cincinnati, Ohio
45202, for defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Nathan D. Byrum, appeals a decision of the Mason

Municipal Court denying his application for expungement of the record of his criminal

conviction for inducing panic.

        {¶ 2} On June 4, 2007, Byrum was charged with two counts of aggravated menacing,

one count of inducing panic and one count of obstructing official business. The charges
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stemmed from an incident in which the state alleged that Byrum threatened to harm his

girlfriend and to take his own life as well as those of the police officers that responded to his

home. After initially refusing to allow police to enter his home, Byrum finally surrendered

after hours of negotiations. Once inside the home, police discovered a shotgun, ammunition

and what Byrum alleges was a police costume intended for Halloween. Byrum was taken to

Bethesda Arrow Springs Hospital for evaluation, after which he was admitted to Summit

Behavioral Healthcare.

       {¶ 3} On August 14, 2007, Byrum pled guilty to one count of inducing panic, with the

state agreeing to dismiss the charges of aggravated menacing and obstructing official

business. Byrum was sentenced to two years of community control. Byrum completed all of

his community control requirements and was discharged from probation. On October 1,

2011, Byrum subsequently filed a motion for expungement to have his record sealed. On

May 11, 2012, the court entered its decision and entry overruling Byrum's motion to expunge

record.

       {¶ 4} Byrum now appeals that decision, raising a single assignment of error for our

review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED BY DENYING [BYRUM'S] MOTION TO

EXPUNGE RECORD.

       {¶ 7} Within this assignment of error, Byrum argues that, "[w]hen this Court weighs

the interest of the public's need to know against [Byrum's] interest in having his record

sealed, the Motion for Expungement should be granted and the failure to delineate the basis

of denial is an abuse of discretion."

       {¶ 8} We review a trial court's decision granting or denying an application to seal

criminal records for an abuse of discretion. State v. Goss, 12th Dist. No. CA2010-03-030,
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2011-Ohio-55, ¶ 4.      An abuse of discretion connotes that the court's decision was

unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment.

State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 19.

       {¶ 9} When considering an application under R.C. 2953.32 to seal a conviction

record, a trial court must hold a hearing and do each of the following:

              (a) Determine whether the applicant is a first offender * * *;

              (b) Determine whether criminal proceedings are pending against
              the applicant;

              (c) If the applicant is a first offender who applies pursuant to
              division (A)(1) of this section, determine whether the applicant
              has been rehabilitated to the satisfaction of the court;

              (d) If the prosecutor has filed an objection in accordance with
              division (B) of this section, consider the reasons against granting
              the application specified by the prosecutor in the objection;

              (e) Weigh the interests of the applicant in having the records
              pertaining to the applicant's conviction sealed against the
              legitimate needs, if any, of the government to maintain those
              records.

R.C. 2953.32(C)(1)(a)-(e).

       {¶ 10} "'Expungement is a post-conviction relief proceeding which grants a limited

number of convicted persons the privilege of having record of their first conviction sealed.'"

Koehler v. State, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 12, quoting State v. Smith, 3d

Dist. No. 9-04-05, 2004-Ohio-6668, ¶ 9. Neither the United States nor Ohio Constitutions

endows one convicted of a crime with a substantive right to have the record of a conviction

expunged. Koehler at ¶ 14, quoting State v. Gerber, 8th Dist. No. 87351, 2006-Ohio-5328, ¶

9. "Rather, '"[e]xpungement is an act of grace created by the state" and so is a privilege, not

a right.'" Koehler, quoting State v. Simon, 87 Ohio St.3d 531, 533 (2000), quoting State v.

Hamilton, 75 Ohio St.3d 636, 639 (1996).

       {¶ 11} In weighing the interest articulated by the applicant and the interest articulated
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by the state, the trial court held that, "the legitimate needs of the [s]tate and public to

maintain the record of the conviction outweigh [Byrum's] interests in have [sic] the conviction

sealed." Byrum argues that the trial court erred as it was required to set forth its findings in

weighing whether the legitimate interest articulated by the state was greater than that of the

applicant, citing In re Dumas, 10th Dist. No. 06AP1162, 2007-Ohio-3621.

        {¶ 12} The Sixth Appellate District had the opportunity to review the Dumas decision

and found that "nothing in Dumas or the other cases that mandates the degree of detail that

appellant suggests. * * * Dumas states that it is an abuse of discretion not to balance the

requisite factors, but makes no rule concerning the degree to which such balancing is

reflected in the judgment entry." State v. Bates, 6th Dist. No. WM-11-007, 2012-Ohio-1397,

¶ 11.

        {¶ 13} In State v. Krutowsky, 9th Dist. No. 81545, 2003-Ohio-1731, ¶ 14, the court

recognized that

               [t]here is no requirement that the court set forth its reasoning
               when granting or denying an expungement. While R.C. 2953.32
               provides that the court shall make determinations under R.C.
               2953.32(C)(1)(a)-(e), the legislature could have easily specified
               that the phrase "shall determine" shall mean that the court shall
               set forth its reasoning on the record and/or in writing. However,
               the legislature specifically worded this particular statute
               differently from other statutes intended to dictate that result.

        {¶ 14} Furthermore, the state cites In re C. R., 10th Dist. No. 11AP-411, 2011-Ohio-

6567, for the proposition that a detailed entry is not required. In that case, the court found

that sufficient findings were made when the trial court's entry stated that "'the sealing of the

record of the applicant's finding of not guilty * * * is consistent with the public interest.' In so

stating, the trial court indicated it balanced defendant's personal interest against those of the

government, or public, interest. Accordingly, * * * the trial court's entry reflects the balancing

of interests R.C. 2953.52 requires." Id. at ¶ 9. Section 2953.52 is similar to Section 2953.32

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in that it also requires the trial court to "[w]eigh 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)(d).

       {¶ 15} The trial court's entry in the present case recognized that it "must weigh the

public's need to know against the individual's interest in having the record sealed * * *." The

court went on to hold that, "based on the facts and circumstances surrounding this case, the

[c]ourt finds that the legitimate needs of the [s]tate and public to maintain the record of the

conviction outweigh [Byrum's] interests in have [sic] the conviction sealed." Therefore, the

trial court's entry clearly indicates that the required factors and balancing test set forth in

2953.32(C)(1)(a)-(e) were properly considered by the court. We do not find that the trial

court must restate with specificity the facts contained in the parties' memorandum in support

of, and objection to, the application for expungement.

       {¶ 16} While it would be a better practice for the lower court to provide a more detailed

explanation for its decision, the record contains sufficient information from which we can

conclude the lower court did not abuse its discretion by denying the motion. Byrum made

serious threats to his own life and to that of others, he forced police officers to engage in

what amounted to a standoff at his home, and he required admittance to a behavioral health

care center upon his arrest. These factors and the state and public's need to know are

weighed against Byrum's interest in having his record sealed in order to make it easier for

him to find employment. We cannot find that the trial court abused its discretion in deciding

that the needs of the state and public outweighed the interests of Byrum.

       {¶ 17} In light of the foregoing, having found that the trial court properly indicated in its

entry that it weighed and balanced the required factors in reaching its decision, Byrum's sole

assignment of error is overruled.

       {¶ 18} Judgment affirmed.
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PIPER and M. POWELL, JJ., concur.




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