[Cite as State v. Boss, 2019-Ohio-2586.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Earle E. Wise, Jr., J.
-vs-                                         :
                                             :
JORDAN BOSS                                  :       Case No. 18-COA-037
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 16CRB00407




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 27, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ANDREW N. BUSH                                       JOSEPH P. KEARNS, JR.
1213 East Main Street                                P.O. Box 345
Ashland, OH 44805                                    153 West Main Street
                                                     Ashland, OH 44805
Ashland County, Case No. 18-COA-037                                                    2



Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Jordan Boss, appeals the October 19, 2018 judgment

entry of the Municipal Court of Ashland County, Ohio denying his motion to seal his

record. Plaintiff-Appellee is state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On June 16, 2016, appellant was convicted of one count of domestic

violence in violation of R.C. 2919.25(C), a fourth degree misdemeanor.          He was

sentenced to thirty days in jail with twenty days suspended, and was placed on probation

for one year. He completed his probation on June 1, 2017.

       {¶ 3} On August 20, 2018, appellant filed a motion for the expungement and

sealing of records. A hearing was held on September 10, 2018. By judgment entry filed

October 19, 2018, the trial court denied the motion.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                               I

       {¶ 5} "THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

APPELLANT IN HIS APPLICATION TO SEAL THE RECORD."

                                               I

       {¶ 6} In his sole assignment of error, appellant claims the trial court erred in

denying his motion to seal his record. We disagree.

       {¶ 7} We review a trial court's decision to grant or deny a motion to seal records

under an abuse of discretion standard. State v. Poole, 5th Dist. Perry No. 10-CA-21,

2011-Ohio-2956, ¶ 11, citing State v. Widder, 146 Ohio App.3d 445, 2001-Ohio-1521,
Ashland County, Case No. 18-COA-037                                                      3


766 N.E.2d 1018, ¶ 6 (9th Dist.). In order to find an abuse of discretion, we must

determine that the trial court's decision was unreasonable, arbitrary, or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,

450 N.E.2d 1140 (1983).

       {¶ 8} Expungement is a privilege and not a right. An applicant must meet the

requirements set forth in R.C. 2953.32 which governs sealing of record. State v. Morris,

5th Dist. Licking No. 09-CA-128, 2010-Ohio-2403, ¶ 8, citing State v. Simon, 87 Ohio

St.3d 531, 533, 2000-Ohio-474, 721 N.E.2d 1041. Subsection (C) requires the trial court

to consider the following in pertinent part:



              (a) Determine whether the applicant is an eligible offender * * *.

              (b) Determine whether criminal proceedings are pending against the

       applicant;

              (c) If the applicant is an eligible 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 or bail forfeiture sealed against the

       legitimate needs, if any, of the government to maintain those records.
Ashland County, Case No. 18-COA-037                                                      4


       {¶ 9} Appellant argues the trial court abused its discretion in considering the

factors and denying his motion.

       {¶ 10} Appellant was convicted of domestic violence in violation of R.C.

2919.25(C) which states: "No person, by threat of force, shall knowingly cause a family

or household member to believe that the offender will cause imminent physical harm to

the family or household member." Appellant had threatened to kill his wife.

       {¶ 11} A hearing on the application was held on September 10, 2018. The trial

court found appellant was an eligible offender, he did not have any pending criminal

proceedings against him, and the prosecutor did not file an objection. T. at 3-4. The trial

court then noted (T. at 4):



              And what the Court needs to do to determine whether or not I am

       going to seal it is essentially balance your interest in having this record

       sealed against any needs that the State may have to maintain it, and also

       the Court is to make an independent determination of whether or not I feel

       that you have rehabilitated yourself to a satisfactory degree. So those are

       the two things that I need to decide.



       {¶ 12} The trial court heard testimony from appellant, relating that he completed

anger management classes and received counseling. T. at 6-7. He stated his action was

a mistake, he apologized, and noted "it was an embarrassment for myself and for my

family." T. at 7. Appellant explained he has custody of his two children and he has had

difficulty securing employment and housing because of his conviction.           T. at 8-9.
Ashland County, Case No. 18-COA-037                                                       5


Appellant admitted to the trial court that he shoved his wife while she was holding their

infant and he threatened to kill her because she touched his PS-4. T. at 16.

       {¶ 13} The trial court acknowledged appellant's testimony, and noted employers

have a right to know that he committed an act of domestic violence, "[t]hat if I were to run

a day care and I was thinking about hiring you, I would sure want to know that you did

this. And if I seal this record, those employers will never be able to find out about that."

T. at 17.

       {¶ 14} In its October 19, 2018 judgment entry denying the motion, the trial court

stated the following:



              The State has a significant interest in assuring that potential

       employers, and others, can access records related to Domestic Violence

       convictions. Further, under Ohio Law, any subsequent violation of Section

       2919.25 by Defendant would become a Second Degree Misdemeanor. It

       appears to the Court, that this possible enhancement for future offenses

       would not preclude sealing Defendant's record.        However, the serious

       nature of the offense, along with the fact that domestic abusers tend to have

       a very high rate of recidivism, gives the Court pause.



       {¶ 15} The trial court noted appellant "now claims to have learned something from

the process, but the Court does not really find his assertions credible." The trial court

concluded: "However, the State's need to maintain the record of Defendant's conviction
Ashland County, Case No. 18-COA-037                                                             6


out-weighs Defendant's interest in sealing it, in the Court's view. Further, the Court is not

convinced Defendant has rehabilitated himself to a satisfactory degree."

       {¶ 16} It is well established that the trier of fact is in a far better position to observe

the witness's demeanor and weigh his/her credibility. See State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). After hearing from appellant, the trial court concluded the

state's interest in maintaining the record outweighed appellant's interest in sealing his

conviction. We find the record supports this conclusion.

       {¶ 17} Upon review, we find the trial court did not abuse its discretion in denying

appellant's motion to seal his record.

       {¶ 18} The sole assignment of error is denied.

       {¶ 19} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Wise, John, J. concur.




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