[Cite as C.K. v. State, 2014-Ohio-1243.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 100193




                                               C.K.
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                           STATE OF OHIO
                                                      DEFENDANT-APPELLEE




                                     JUDGMENT:
                               REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-12-784160

        BEFORE: McCormack, J., Keough, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: March 27, 2014
ATTORNEYS FOR APPELLANT

William B. Eadie
Nicholas A. Dicello
Daniel Frech
Spangenberg Shibley & Liber LLP
1001 Lakeside Avenue, East
Suite 1700
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Debra Gorrell Wehrle
Assistant Attorney General
Corrections Unit
150 East Gay St., 16th Floor
Columbus, OH 43215

Brian R. Gutkoski
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Plaintiff-appellant C.K. appeals from a decision of the Cuyahoga County

Court of Common Pleas granting summary judgment in favor of the state as to his

complaint for wrongful imprisonment brought pursuant to R.C. 2743.48.

       {¶2} C.K.’s murder conviction was overturned on appeal for being against the

manifest weight of the evidence.   This court determined that the evidence showed he acted

in self defense, permitted by Ohio’s Castle Doctrine. The wrongful imprisonment statute

requires claimants to prove that no criminal proceeding “can be brought, or will be

brought” by the prosecutor against them for any act associated with their conviction.      In

this case, the state does not claim it intends to, or there is any new evidence, to retry C.K.

for murder.   The trial court, however, held that, as a matter of law, C.K.      is unable to

prove no criminal proceeding “can be brought, or will be brought” against him because the

offense of murder does not have a statute of limitations.      After a thorough and careful

review of the case law and the record before us, we conclude that the unique circumstances

in this case have created a genuine issue of material fact regarding whether C.K. is eligible

for a declaration of wrongful imprisonment.      The trial court prematurely concluded this

matter in granting summary judgment in favor of the state.
                       Substantive Facts and Procedural History

        {¶3} C.K., a laid off engineer and part-time community college professor, as well

as a U.S. Air Force veteran, was indicted for murdering Andre Coleman in C.K.’s own

home.    His first trial, in March 2010, ended in a mistrial because of an inappropriate

question by the prosecutor at trial. A second jury trial was held in August 2010, and the

jury found him guilty. On appeal, a unanimous panel of this court reversed the conviction,

holding that the Castle Doctrine applied in this case and C.K.’s murder conviction was

against the manifest weight of the evidence.   In the following, we summarize the evidence

adduced at the second trial as described by the prior panel, in State v. [C.K.], 195 Ohio

App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097 (8th Dist.), appeal not accepted, State v.

[C.K.], 131 Ohio St.3d 1439, 2012-Ohio-331, 960 N.E.2d 988.

        {¶4} C.K. was laid off from his job with Sprint in 2008. In June 2009, he rented

the upstairs of his house to a tenant, who was a friend of Valerie McNaughton

(“McNaughton”).     After the tenant left, McNaughton began renting the upstairs unit.

She then asked C.K. to allow her boyfriend Andre Coleman (“Coleman”) to move into the

house. C.K. consented. McNaughton had a tumultuous relationship with Coleman, and

the relationship was fraught with physical abuse. Coleman and McNaughton argued and

fought constantly, and Coleman would beat McNaughton violently when he was coming

down from a crack cocaine high. By the end of August 2009, the fighting between

Coleman and McNaughton became so frequent and disruptive that C.K. ordered Coleman

to leave his house. C.K. escorted Coleman off of his property and told him not to return.
Coleman was uncooperative, and a loud argument ensued.        Coleman eventually left after

neighbors summoned the police.

      {¶5} After Coleman left, McNaughton warned C.K. about Coleman’s violent past.

 She showed C.K. information on Cuyahoga County’s website, which indicated Coleman

had been convicted in 1990 for involuntary manslaughter.      He had also been convicted

with carrying a concealed weapon and numerous drug-related offenses.

      {¶6} McNaughton testified that around 4 a.m., on September 20, 2009, she and

Coleman were with two others smoking crack cocaine in a motel room.        After consuming

all the crack cocaine they had purchased, they bought more, returned to the motel, and

imbibed more.    Once the crack cocaine ran out, Coleman encouraged McNaughton to

make sexual advances towards one of the other two individuals in an effort to influence that

person to buy more drugs.   McNaughton refused, and Coleman became angry.         As a ruse

to leave the motel, McNaughton told Coleman that she knew someone who had agreed to

advance her drugs that she needed to meet.      The foursome drove to a parking lot near

C.K.’s home. McNaughton exited the vehicle while the others remained inside; she then

surreptitiously slipped away and made her way back home.     Once home, McNaughton told

C.K. that she just left Coleman a few streets away and that Coleman was very upset and

would be looking for her.

      {¶7} A short time later, McNaughton observed Coleman exiting the vehicle.

McNaughton began yelling hysterically that Coleman had arrived and that they should lock

the doors. At that point, Coleman began banging on the locked back door. He then
kicked out the bottom panel of the door and entered the house. C.K. told Coleman he was

not allowed on the property, but Coleman pushed passed him and came towards

McNaughton in the living room. McNaughton yelled that the police had been called,

which prompted Coleman to leave. McNaughton then hid in the garage.

      {¶8} While McNaughton hid in the garage and C.K. was repairing the door,

Coleman returned. C.K. demanded that he leave, but Coleman brushed passed him, asked

if C.K. wanted to “shoot it out,” and proceeded to search for McNaughton. As C.K.

testified, Coleman held one hand behind his back signaling that he had a gun. Coleman

left after he could not find McNaughton in the house.

      {¶9} Coleman returned a third time while C.K. was still repairing the broken door.

Again, C.K. demanded that Coleman leave, at which time McNaughton came back to the

house, thinking it was safe to return after hiding in the garage for ten minutes. Coleman

immediately started yelling at McNaughton to give him money, followed her into the living

room, grabbed her by the hair, threw her to the ground, and began beating her.   According

to McNaughton’s testimony, while Coleman was beating her, C.K. fired two shots, hitting

Coleman, who spun around and fell to the ground. C.K. shot Coleman several more times.

      {¶10}    C.K. testified that when McNaughton yelled for help, he demanded that

Coleman stop the assault. When Coleman reached behind his back for his gun, C.K.

pulled his revolver and shot Coleman. C.K. testified that after he shot Coleman, Coleman

spun around, fell to the ground, and began to twitch, which prompted C.K. to fire several

more times. C.K. described his thoughts at the moment of the shooting: “I thought I was
dead. I thought, I was panicking, I thought it just about, I thought he was going to shoot me.

 My gun was brand new, I never tried it. I didn’t even know if it would work. I was

afraid it would fail me and he was going to shoot me. I was pretty much panicking at the

time.”

[C.K.], 195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097, at ¶ 4 -17.

         {¶11} C.K. added, “After I fired and he fell, I walked over to see if he was moving

or if I hit him. I tried to see if he was moving or if I hit him. I tried to see if I had

actually hit him or if I missed or what * * *.” Id. at ¶ 28. Describing what was going

through his mind when he looked over Coleman as he lay on the ground, C.K. testified

“Well I am looking over close. I did have my gun there pointing, holding it right next to

him just to make sure, in case I just grazed him or he’s about to jump back up at me.                    I

saw movement and I panicked and pulled the trigger again, and I don’t know if the gun

actually went off or if I had shot all the rounds already or if I did fire again.” Id.

         {¶12}   The jury found C.K. guilty of murder and a firearm specification.                      In

September 2010, he was sentenced to 15 years to life for his murder conviction and three

years for the firearm specification.

         {¶13} A year later, on September 22, 2011, this court reversed C.K.’s conviction

based on the conviction being against the manifest weight of the evidence. This court

explained that under the recently-strengthened R.C. 2901.09(B),1 which codifies Ohio’s


         R.C. 2901.09 (“When there is no duty to retreat before using force in self-defense, defense of
         1


another, or defense of residence”) states: “(B) For purposes of any section of the Revised Code that sets
forth a criminal offense, a person who lawfully is in that person’s residence has no duty to retreat before
“Castle Doctrine,” there is no longer a duty to retreat inside one’s home, and the statute

creates a rebuttable presumption and the state had the burden to prove C.K. was not acting

in self-defense.      Id. at ¶ 24.      Reviewing the evidence, this court found that C.K.

“established all three elements of the affirmative defense of self-defense and the Castle

Doctrine fully applies to the facts of the instant case.” Id. at ¶ 30. We also found that

“the jury appeared confused about the jury instruction as evidenced by questions regarding

the definition of ‘unlawful entry’ and ‘Castle Doctrine.’                 Further, the jurors queried

whether the Castle Doctrine applied to both self-defense of the owner of the home and

anyone in the home.” Id. We therefore concluded that the jury lost its way and C.K.’s

convictions were against the manifest weight of the evidence.                We reluctantly remanded

the case for a new trial because we were “restrained by the standard of review under the

manifest weight of the evidence and cannot discharge C.K.” Id. at ¶ 31.

        {¶14} The state appealed this court’s judgment to the Supreme Court of Ohio, which

denied review on February 1, 2012, in C.K., 131 Ohio St.3d 1439, 2012-Ohio-331, 960

N.E.2d 988.       Four weeks later, on February 28, 2012, the prosecutor dismissed the

criminal matter “without prejudice.”          In the meantime, C.K. also filed an application to

seal all official records.    The trial judge, who had presided over the jury trial, granted his

application for expungement.         The state appealed the expungement decision to this court,

arguing that because the murder offense has no statute of limitations, the expungement


using force in self-defense, defense of another, or defense of that person’s residence, * * *.”
should be denied.     This court found the argument lacking in merit and affirmed the

expungement order in State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135.

       {¶15}   On June 1, 2012, C.K. commenced this wrongful imprisonment action

pursuant to R.C. 2743.48, seeking a declaratory judgment that he was wrongfully

imprisoned.    Both parties filed cross motions for summary judgment.               The state

submitted an affidavit by an assistant prosecutor, who stated that the case “remains open *

* * to re-filing /re-indicting, given the lack of statutory limitations [for murder] under R.C.

2901.13(A)(2).”

       {¶16} The trial court granted summary judgment in favor of the state, based solely

on the fact that the murder offense does not have a statute of limitations.    The trial court

found that the “mere possibility” of being reindicted precludes C.K. from being found to

have been wrongfully imprisoned pursuant to R.C. 2743.48(A).

                                     Summary Judgment

       {¶17} An appellate court reviews summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, we afford no

deference to the trial court’s decision and must independently review the record to

determine if summary judgment was appropriate. Brown v. Scioto Cty. Bd. Commrs., 87

Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).                Summary judgment is

appropriate where it appears that:   (1) there is no genuine issue as to any 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 party against whom the
motion for summary judgment is made, who is entitled to have the evidence construed most

strongly in his favor.   Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66,

375 N.E.2d 46 (1978); Civ.R. 56(C).

       {¶18}    “Since summary judgment denies the party his or her ‘day in court’ it is not

to be viewed lightly as docket control or as a ‘little trial.’   The jurisprudence of summary

judgment standards has placed burdens on both the moving and the nonmoving party.”

Welch v. Ziccarelli, 11th Dist. Lake No. 2006-L-229, 2007-Ohio-4374, ¶ 40. The moving

party seeking summary judgment “bears the initial burden of informing the trial court of the

basis for the motion, and identifying those portions of the record which demonstrate the

absence of a genuine issue of material fact on the essential element(s) of the nonmoving

party’s claims.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). A

moving party does not discharge this initial burden under Civ.R. 56 by simply making a

conclusory assertion that the nonmoving party has no evidence to prove its case.           Id.

Rather, the moving party must affirmatively demonstrate by affidavit or other evidence

allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims.

Id.

       {¶19} In the first assignment of error, C.K. contends the trial court erred in granting

the state’s motion for summary judgment. In its second assignment of error, he contends

the trial court erred in denying his motion for summary judgment. As the assignments of

error are related, we address them together.

                              Wrongful Imprisonment Statute
      {¶20} In 1986, R.C. 2743.48 was enacted by Sub.H.B. 609 to allow wrongfully

imprisoned individuals to bring civil actions against the state for monetary damages. “The

statute was designed to replace the former practice of compensating those wrongfully

imprisoned by ad hoc moral-claims legislation.”      Doss v. State, 135 Ohio St.3d 211,

2012-Ohio-5678, 985 N.E.2d 1229, ¶ 10. The statute envisions 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. Id.

      {¶21} The wrongful imprisonment statute, R.C. 2743.48, states the following:

              (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 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.)

       {¶22} The statute enumerates five factors and a claimant must satisfy all five factors

by a preponderance of the evidence before he or she can be declared a wrongfully

imprisoned individual.     Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992

N.E.2d 1111, citing Doss at paragraph one of the syllabus.

       {¶23} Turning to the instant case, it is undisputed that C.K. meets the first three

prongs of the statute. C.K. claims he also meets the fourth prong (R.C. 2743.48(A)(4))

and fifth prong (R.C. 2743.48(A)(5)) and therefore is entitled to summary judgment.         The

trial court granted summary judgment in favor of the state, finding that, because the offense

of murder does not have a statute of limitations, C.K. could not satisfy the fourth prong as a

matter of law, and the fourth prong disposed of this case. Thus, this appeal only concerns

whether the trial court properly granted summary judgment based on its ruling that C.K.

could not satisfy the fourth prong as a matter of law.

 The Fourth Prong: Whether No Criminal Proceeding “Can Be Brought, or Will be
                                 Brought”

       {¶24} The fourth prong set forth in R.C. 2743.48(A)(4) requires the claimant to

prove that “* * * no criminal proceeding is pending, can be brought, or will be brought by
any prosecuting attorney * * * against the individual for any act associated with that

conviction.” Here, it is undisputed that “no criminal proceeding is pending” against C.K.;

therefore, this appeal turns on whether no criminal proceeding for any act associated with

his murder conviction “can be brought, or will be brought” against him.

        {¶25} The trial court, in granting the state summary judgment, reasoned that because

there is no statute of limitations for murder, it is within the state’s right to retry C.K. at any

time.   The trial court stated that the “mere possibility” of being reindicted due to a lack of

statute of limitations thus precluded C.K. from being able to satisfy the fourth prong,

rendering him ineligible from recovery under the wrongful imprisonment statute, as a matter

of law. As we explain in the following, the trial court’s interpretation of the statute is too

narrow.

        {¶26} The statute makes no mention of the statute of limitations.     Rather, the statute

employs common words “can” and “will,” which suggests a broader inquiry, for which the

statute of limitations is but one factor.

        {¶27} Furthermore, we do not read the word “can” as denoting “mere possibility,” as

the trial court seemed to believe.    Theoretically, the prosecutor can always bring a charge,

whether in good faith or not, even where the criminal charge may be outside of the statutory

time, in violation of a defendant’s speedy trial right, or barred by double jeopardy.

Therefore, interpreting the word “can” in its literal sense renders the phrase at issue virtually

meaningless.
       {¶28} Rather, we agree with the Tenth District’s interpretation of the phrase in a

recent wrongful imprisonment case, where the court stated “[t]he use of the phrase ‘no

criminal proceedings * * * can * * * or will be brought’ was clearly intended by the

General Assembly to bar recovery to a claimant against whom criminal proceedings are

still factually supportable and legally permissible following reversal.”      (Emphasis added.)

 LeFever v. State, 10th Dist. Franklin No. 12AP-1034, 2013-Ohio-4606, ¶ 26.

       {¶29} Hypothetically, if C.K. were to have been retried upon remand after this court

reversed his conviction as against the manifest weight of the evidence and subsequently

acquitted by the jury, C.K. would have been able to show that the prosecutor “cannot, or

will not” bring another criminal proceeding, because another criminal proceeding for any

act associated with his prior murder conviction would have been legally impermissible due

to the protection of double jeopardy. Under this scenario, C.K. would be able to satisfy

the fourth prong, despite that his offense lacks a statute of limitations.

       {¶30} C.K., however, cannot show another criminal proceeding is legally

impermissible, because, upon remand, the state elected not to retry him but instead

dismissed his case “without prejudice.”      We agree with the Tenth District, however, that

the “cannot/will not” inquiry contemplates not just whether another criminal proceeding

associated with the prior conviction is legally permissible, but also whether such a criminal

proceeding is factually supportable.

       {¶31} In LeFever, the defendant was accused of poisoning her husband with

amitriptyline and nortriptyline and convicted of aggravated murder.          Her conviction was
later reversed because the state’s toxicologist had lied about his qualifications.         The

prosecutor dismissed her indictment without prejudice.         The defendant then sought a

wrongful imprisonment declaration. The trial court granted summary judgment in favor of

the state based on the fourth prong of R.C. 2743.48, just as in this case. The Tenth

District affirmed, after determining that the state presented evidence “establishing that the

prosecutor had not abandoned his effort to prosecute appellant for the death of her husband

and that such a prosecution was both factually sustainable and legally permissible following

reversal.” Id. at ¶ 16.

       {¶32} The Tenth District pointed to evidence that included the prosecutor’s press

release issued after dismissing the case without prejudice.     The press release detailed the

prosecutor’s intent to reindict the defendant when future scientific advancements would

allow for the testing of the biological samples to detect the timing, mode and/or manner of

administration of the poisons, which the prosecutor explained could not be done with the

current state of scientific know-how.       The prosecutor also testified in his deposition

testimony that “he still believed that he had at least ‘a fair chance of getting [the defendant]

convicted of at least aggravated attempted murder.’” Id. at ¶ 18.            According to the

prosecutor, the defendant’s children had indicated they were willing to give testimony

implicating their mother regarding her attempt to poison their father with a fumigant.       In

addition, one other witness had come forward since the reversal of appellant’s conviction to

offer testimony that would corroborate the children’s account.           The prosecutor also

testified that his assessment of the chances of a conviction for attempted aggravated murder
was based upon the evidence he received since the defendant’s conviction were reversed,

the testimonial evidence presented in the first trial, and the remaining physical evidence

uncovered in the search of the defendant’s home.

      {¶33} Based on the evidence presented by the state on the wrongful imprisonment

case, the Tenth District concluded summary judgment in the state’s favor was warranted

because the evidence conclusively demonstrated that another criminal proceeding — for

attempted aggravated murder — is not only legally permissible but also factually

supportable; as such, the defendant failed to prove the fourth prong and was precluded from

recovery under the wrongful imprisonment statute. Id. at ¶ 27.

      {¶34} LeFever provides an interesting contrast to the instant case. Here, C.K.

pointed to the lack of new evidence for a new trial and the inactive status of the

investigation to support his claim that he has satisfied the fourth prong. The state claimed

the murder case is still under investigation and remains open. However, to support its

claim, the state only submitted an affidavit by an assistant prosecutor, who stated merely

that the case “remains open * * * given the lack of statutory limitations” for a murder

offense. (Emphasis added.) Thus, in contrast to LeFever, the only reason provided by the

prosecutor for C.K.’s case being “open” is a lack of a statute of limitations for murder.

There was no evidence presented by the state as to whether the prosecutor has discovered

new evidence or interviewed new witnesses relating to C.K.’s claim of self-defense; neither

was there sworn testimony from the prosecutor that there is an ongoing investigation.

Therefore, even if retrying C.K. for murder is legally permissible due to a lack of a time
limitation for murder, the state certainly has not presented any evidence to show that

bringing another criminal proceeding for murder against C.K. is factually supportable.

       {¶35} Therefore, the trial court’s granting of summary judgment for the state based

solely on the fourth prong is erroneous. Under the unique circumstances of this case,

there is a factual question as to whether C.K. satisfies the fourth prong. Additional

evidentiary inquiry is necessary to determine whether another criminal proceeding in

connection with his prior murder conviction “can be brought, or will be brought” against

C.K., in other words, whether reindicting or retrying him is both legally permissible and

factually supportable.

       {¶36} In its attempt to prove C.K. could not satisfy the fourth prong, the state

advances another theory. It asks us to interpret R.C. 2743.48(A)(4) as requiring C.K. to

prove that he was not engaging in “any criminal conduct” at the time of the shooting

incident, whether relating to the murder charge or not.                 In its motion for summary

judgment, the state alleged C.K. was engaged in criminal conduct, to wit, abusing drugs,

“in the week leading up to” the incident.         For proof, the state submitted an affidavit of a

detective who stated that during a search of C.K.’s home the day after the shooting, the

police found drug paraphernalia (a pipe) inside a bank envelope and four bank receipts

dated several weeks before the incident showing withdrawals over $10,000.2 The state

also submitted pictures of the various items referenced in the affidavit.


         In the criminal trial, C.K. filed a motion in limine to exclude the evidence and the trial court
        2


granted the motion.
       {¶37} The state argues that its interpretation of R.C. 2743.48(A)(4) is consistent

with the the Supreme Court of Ohio’s analysis in Gover v. State, 67 Ohio St.3d 93, 95, 616

N.E.2d 207 (1993). Our reading of Gover shows otherwise.

       {¶38} In Gover, the defendant entered a restaurant and stole money from its safe.

He was convicted of safecracking.     The appellate court, however, reversed the conviction

due to insufficient evidence, because it found the safe was not a safe as defined in the

safecracking statute. The defendant then sought a wrongful imprisonment declaration.

       {¶39} Interpreting R.C. 2743.48(A)(4), the Supreme Court of Ohio stated that

claimants for wrongful imprisonment “must prove that at the time of the incident for which

they were initially charged, they were not engaging in any other criminal conduct arising

out of the incident for which they were initially charged.”   (Emphasis added.) Id. at 95.

       {¶40} Applying R.C. 2743.48(A), the court in Gover concluded that the claimant

failed to prove he satisfied the fourth prong, because, while not committing safecracking,

he was nevertheless committing burglary; while the prosecutor incorrectly chose to indict

the defendant for safecracking, he might also have been charged with burglary for his

conduct in the incident.   The court emphasized that the statutory language is “intended to

filter out those claimants who have had their convictions reversed, but were committing a

different offense at the time that they were engaging in the activity for which they were

initially charged.” Id. at 95. Thus, the defendant in Gover could not satisfy the fourth

prong, because he could not prove that no criminal proceeding “can be brought” for his act

associated with his safecracking conviction.
       {¶41} In contrast to Gover, the state’s claim in this case that C.K. could not satisfy

the fourth prong because of his criminal conduct, namely, drug abuse, “in the week

leading” to the shooting incident, appears to be disingenuous. We fail to see how C.K.’s

alleged illegal drug use, even if it were true, could be construed as “criminal conduct

arising out of” the shooting incident, or “associated with” his murder conviction.         The

state essentially asks us to interpret the statute as requiring a wrongful imprisonment

claimant to prove that he or she did not engage in any criminal conduct, whether or not

contemporaneous with the incident for which the individual was initially charged.        There

is no case law authority that would support such an interpretation of the statute. The

state’s allegation that C.K. engaged in illegal drug activity would appear to be, at best, a red

herring and, at worse, an attempt to create a bias against C.K. in this wrongful

imprisonment action.

       {¶42} We emphasize again that this appeal only concerns the fourth prong of the

statute.   After a careful review of the case law and the record before us, and applying the

summary judgment standard, we conclude the circumstances of this case have created a

genuine issue of material fact regarding the fourth prong, i.e., whether, more likely than

not, another criminal procedure “can or will be” brought against C.K. for the shooting

incident. The trial court properly denied C.K.’s motion for summary judgment, but it

improperly granted summary judgment in favor of the state based solely on its conclusion

that C.K. is precluded from seeking recovery because he could not satisfy the fourth prong

of the wrongful imprisonment statute due to a lack of a statute of limitations for murder.
       {¶43} We are fully aware that “[n]ot every person who is released from prison

because of a successful appeal is entitled to compensation.” Doss, 136 Ohio St.3d 181,

2013-Ohio-2163, 992 N.E.2d 1111, at ¶ 21.            However, under the unique circumstances of

this case, the trial court’s narrow interpretation of the statute prematurely concluded this

wrongful imprisonment matter. Finally, we note that C.K. still must prove all five prongs

of the wrongful imprisonment statute, by a preponderance of evidence.                If C.K. is able to

demonstrate the fourth prong upon further proceedings, he still must prove the fifth prong.

Because the trial court has not addressed the fifth prong, we do not reach that issue in this

appeal.3




          Regarding the fifth prong, in Doss, supra, the Supreme Court of Ohio explained that “when
        3


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.’” (Citation omitted.) Doss at ¶ 14. The court added 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.”
(Citation omitted.) Id. When a defendant seeks a declaration that he is a wrongfully imprisoned
individual and seeks to satisfy R.C. 2743.48(A)(5) by proving that an error in procedure resulted in
his release, the error in procedure must have occurred subsequent to sentencing and during or
subsequent to imprisonment. The latest wrongful imprisonment case from the Supreme Court of
Ohio, Mansaray v. State, Slip Opinion No. 2014-Ohio-750, also concerned the fifth prong. The
court held that when a claimant seeks to satisfy R.C. 2743.48(A)(5) by proving that an error in
procedure resulted in his release, the error in procedure must have occurred subsequent to sentencing
and during or subsequent to imprisonment. Id. at syllabus.
       {¶44} For the foregoing reasons, the first assignment of error is sustained and the

second assignment of error is overruled. 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.


______________________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MARY EILEEN KILBANE, J., CONCUR
