Tuesday, Feb. 8, 2022
State of Ohio v. David S. Hansard
, Case no. 2021-0019
Fourth District Court of Appeals (Gallia County)
Vasile Bunta v. Firman D. Mast
, Case no. 2021-0066
Fifth District Court of Appeals (Holmes County)
Neuro-Communication Services Inc., etc., v. The Cincinnati Insurance Company; The Cincinnati Casualty Company; and The Cincinnati Indemnity Company, Case no. 2021-0130
State of Ohio v. G.K., Case no. 2021-0124
Eighth District Court of Appeals (Cuyahoga County)
Should Possible Racial Profiling Be Reviewed in Hearings to Exclude Evidence?
State of Ohio v. David S. Hansard, Case No. 2021-0019Sixth District Court of Appeals (Gallia County)
ISSUE: At a suppression hearing, must a trial court consider an officer’s alleged racial bias when determining whether probable cause was established for a traffic stop?
BACKGROUND:
On July 23, 2019, Ohio State Highway Patrol Trooper Drew Kuehne was parked in his cruiser watching eastbound traffic on U.S. Route 35 in Gallia County. Sometime after dark, Kuehne stated that he noticed a gray minivan cross the white line at the edge of road. The trooper pulled out to pursue the van. The driver turned on his turn signal and exited the highway into a rest area.
Kuehne followed the van into the rest-area parking lot and saw the driver smoking near his vehicle. The trooper returned to the highway, parking further down the road to watch traffic. The van passed in front of the trooper again. Kuehne stated that the vehicle crossed the white edge line (also called the “fog line”) and slowed to 61 mph in a 70-mph zone. The trooper then initiated a traffic stop.
The driver was David Hansard, who told the officer he had rented the van and was driving from Columbus to Charleston, West Virginia, to visit family. Hansard admitted to previous trouble in the legal system, including drug offenses. He consented to Kuehne searching the vehicle. Kuehne said while Hansard walked toward the cruiser, he “appeared to be squeezing his legs together,” “he was walking a little bit uncomfortable, like almost a wobble.”
Hansard agreed to let Kuehne check him for weapons.
In his later testimony, Kuehne said people often hide weapons in pants’ waistbands near the groin area or the back of their pants. During the pat-down, Kuehne felt what he thought was contraband between Hansard’s butt cheeks. A bag of what Kuehne suspected was drugs fell to the ground.
Driver Alleges He Was Stopped for Racial Reasons
Hansard, who is Black, was indicted for drug possession and trafficking. He filed a motion to suppress evidence, including the white powder in the bag, arguing he was pulled over because he is Black. The Gallia County Common Pleas Court rejected the request. The bag found on Hansard held about 48 grams of cocaine. Following a bench trial, the court found Hansard guilty of possession and trafficking and imposed a prison sentence of 10 to 15 years.
Hansard appealed. The Fourth District Court of Appeals upheld the trial court decision and rejected the claim that the trial court should have considered evidence of racial bias when determining the trooper’s credibility.
Hansard appealed to the Supreme Court of Ohio, which accepted the case. The appeal has attracted five friend-of-the-court briefs on the issue. At oral argument, the NAACP Legal Defense and Educational Fund will offer its views alongside Hansard, and the Ohio Prosecuting Attorneys Association will share the time allotted to the Gallia County prosecutor.
Driver Argues Trial Court Must Evaluate Trooper’s Possible Bias
In his request to exclude evidence, Hansard argued the trooper targeted him because of race and age. He points to Kuehne’s testimony that he had individually handled 200 felony drug cases and more than half of his arrests were people of color. Even so, Hansard contends, the trial court refused to consider the possibility of bias, that the trooper may have fabricated a reason for a traffic stop.
His brief states that the U.S. Supreme Court ruled in Whren v. United States (1996) that a law enforcement officer who makes a traffic stop for a pretextual reason, such as racial profiling, doesn’t violate the U.S. Constitution’s Fourth Amendment as long as a traffic violation occurred to justify the stop. (The Fourth Amendment prohibits illegal searches and seizures.) His brief argues that Whren does not mean that racial issues can’t be considered at all by a trial court during a suppression hearing.
Hansard notes that, in this case, whether the trooper had probable cause to believe a traffic violation happened depended entirely on the trooper’s testimony. Hansard states that no other evidence was presented to objectively show a traffic violation, noting that Kuehne could have, but didn’t, immediately turn on his cruiser’s dashboard camera. Instead, after seeing Hansard cross the white edge line the second time, the trooper said he called for registration information on the van while following Hansard. A few miles later, Kuehne activated his overhead lights, starting the dash-cam recording. Had he activated his dash-cam when he began the pursuit, the 90-second lookback feature would’ve captured the supposed traffic violation, Hansard states.
The trial court didn’t fully consider the credibility of the trooper’s stated observations in the context of all of the circumstances of this traffic stop, and the evidence should have been excluded, Hansard concludes.
State Maintains Evidence of Racial Bias Was Lacking
The Gallia County Prosecutor’s Office argues that no evidence of racial profiling or bias was before the trial court at the suppression hearing. Nor did Hansard’s lawyer ask the trooper about the role of race in his traffic stops, the prosecutor adds. The office states that Hansard was stopped because of the second traffic violation and other indicators that the van was transporting drugs – Hansard quickly pulling off the highway after he first passed the trooper’s cruiser, not looking at the officer or his vehicle at the rest stop, slowing down when he saw the trooper the second time, and because the van was a rental. There also are no indications in the record that Kuehne became aware that Hansard is Black when first seeing the van, the prosecutor maintains.
The prosecutor states that, at the hearing, Hansard’s lawyer failed to challenge Kuehne’s testimony as not credible, and Hansard didn’t testify to dispute the trooper’s account.
Kuehne was doing his job to prevent drug traffickers from transporting drugs on Ohio’s roads, the prosecutor maintains. The trial court considered his testimony credible and properly ruled to allow the evidence obtained from the traffic stop at trial, the office concludes.
Briefs Discuss Need for Courts to Examine Racial Pretexts for Stops
In its amicus curiae brief, the NAACP Legal Defense and Educational Fund states that the U.S. and Ohio constitutions bar the selective enforcement and prosecution of traffic laws and criminal statutes based on race. The lower court rulings in this case allow evidence seized at traffic stops to be admitted in court even if an officer targets Black motorists, the group argues.
Also filing amicus briefs supporting Hansford’s positions:
- Ohio Association of Criminal Defense Lawyers, emphasizing the importance of preserving a defendant’s ability to address possible errors or lies in testimony from law enforcement witnesses
- Criminal law and procedure professors, who suggest that the Ohio Constitution prohibits traffic stops made under pretext.
Groups State Evidence of Racial Bias Non-Existent in This Case
The Ohio Prosecuting Attorneys Association counters that the evidence of racial bias in this case is supported only by “bare assertions.” The lack of evidence of racial bias makes this appeal a poor one to address this “serious, fundamental issue,” the association’s brief states.
The Scioto County Prosecuting Attorney’s Office also submitted an amicus brief supporting the Gallia County prosecutor, noting Scioto County deals with “the daily struggle against drug-related crime poisoning the communities of southern Ohio.” The office argues that Ohio trial courts already have discretion to consider racial bias when determining witness credibility if sufficient evidence is presented.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing David S. Hansard from the Ohio Public Defender’s Office: Craig Jaquith, 614.644.1568
Can Limited Liability Company Ownership Interest Be Subject of Conversion Lawsuit?
Vasile Bunta v. Firman D. Mast, Case No. 2021-0066
Fifth District Court of Appeals (Holmes County)
ISSUES:
- Can a member of a dissolved limited liability company make a tort claim of conversion against the company manager who used the dissolved company’s assets to start a new company?
- If a manager complies with a limited liability company’s operating agreement, can he be liable for conversion if he dissolves the company and uses its assets to start a new company?
BACKGROUND:
Firman Mast is a member of the Amish community and owner of a roofing company. In 2013, he met Vasile Bunta, a Romanian citizen with a lumber exporting business in Ohio. Bunta shared with Mast the concept of using vacuum kilns to dry lumber, a process that could get lumber to market faster and enhance its quality. In April 2014, Bunta and Mast drafted a business plan for a company called Superior VacuPress, in which the two would be equal partners. However, Bunta had poor credit at time, resulting in Mast and his father, Dennis Mast, officially establishing Superior VacuPress as a limited liability company with the Ohio Secretary of State’s Office. Mast was listed as owning 85% of the company while his father owned 15%.
The Masts obtained bank loans for more than $1.5 million to start the company. Bunta designed the company’s building and performed other services to place the highly specialized vacuum kilns into operation. When the business was launched, Bunta was not listed as an owner, but he and Mast discussed how they would be compensated. The two agreed to take no payment from the company for the first six months of operation. If the business had revenue, each agreed to receive $2,000 per month after one year in operation and $4,000 per month after 18 months. Dennis Mast and Mervin Mast, another of Dennis Mast’s sons, were the only two paid employees of VacuPress.
New Venture Struggles
In 2016, VacuPress needed additional funding to operate. Firman Mast requested $109,000 from the members, including Bunta, who was not officially an owner. Bunta contributed about $32,000, and the LLC’s operating agreement was amended to make Firman Mast a 45% owner, while Bunta was granted a 30% ownership interest. Mast’s father and brother owned the rest of the interests.
VacuPress required a supply of lumber to thrive, but was unable to obtain lumber from area Amish-owned sawmills once those businesses learned that Bunta had an ownership interest. The sawmill owners claimed Bunta owed them money and they refused to do business with VacuPress. Mast asked Bunta to resolve his issues with the sawmill owners.
Bunta didn’t resolve his issues with the sawmills. Instead, in March 2016, Bunta ceased doing business for VacuPress and requested an exit plan. Mast offered him a buyout, which Bunta refused.
Company Dissolved, Assets Transferred
In August, Mast notified Bunta and his father and brother that he was dissolving the company. Mast’s lenders told VacuPress that the value of its equipment and assets were far less than they owed the bank. Mast proposed to the bank the formation of a new company, Superior Lumber, in which the three Masts, but not Bunta, would have an ownership interest. The bank agreed to a plan allowing Mast to dissolve VacuPress and for Superior Lumber to assume all the business’ assets as well as its debts.
In January 2017, Mast notified the secretary of state’s office that VacuPress had been dissolved, and in the same month launched Superior Lumber. The company had a successful year with tax receipts for 2017 indicating $1.74 million in income and $347,000 in profit.
Ejected Member Seeks Payment
Bunta filed a lawsuit, making several legal claims, including conversion and unjust enrichment. Mast urged the trial court to dismiss the case, arguing he legally dissolved the company and Bunta wasn’t entitled to any compensation. A jury found Mast liable for illegally taking Bunta’s 30% interest in VacuPress and directed him to pay Bunta $231,000. The jury also found Mast was unjustly enriched by $45,000 by dissolving the company and reopening without Bunta.
Mast appealed to the Fifth District Court of Appeals, which affirmed the trial court.
Mast appealed to the Supreme Court of Ohio, which agreed to hear the case.
Funds Not Converted, Manager Maintains
Mast asserts there was no monetary value in Bunta’s interest in VacuPress because the company was legally dissolved to pay its debts. Even if Bunta’s interest had value, he can’t make a claim of conversion, which is a tort, when Mast, as manager of the LLC, followed state law and the company’s operating agreement for dissolving the company, Mast argues.
Under the Ohio Limited Liability Company Act, now R.C. Chapter 1706, VacuPress was required when dissolving the LLC to first settle its obligations to the bank before it could provide any remaining assets to members, such as Bunta. And when Mast provided the bank all the company assets, the company had no value, and Bunta’s membership interest was worthless, the manager maintains.
The bank, in the process of dissolving VacuPress, told Mast that the specialized lumber drying equipment had little market value and wouldn’t cover the debts if the company tried to sell the equipment, he notes. The bank agreed to allow Mast and his new company to assume the assets to operate the company and pay back the bank loans, Mast maintains. Mast notes that when the jury in the trial was asked if he breached his fiduciary duty to Bunta, the jury found he acted in good faith in winding down the LLC. The company had no assets at that time, and Bunta wasn’t entitled to any compensation, Mast asserts.
Mast notes the tort claim of conversion traditionally applied to only tangible objects, but the Ohio Supreme Court’s 1976 decision in Zacchini v. Scripps-Howard Broadcasting Co. determined that intangible assets, such as bank checks and deeds, could also be the subject of conversion. Mast maintains that Bunta is the first to assert that a membership interest in a dissolved LLC is the type of intangible asset that is eligible for conversion claim.
Mast maintains that to sue for conversion, Bunta would have to prove that Mast owed him some duty to protect his interest in VacuPress outside of the duties in the LLC operating agreement. Mast asserts he owed no duty other than to follow the rules of the operating agreement, which he did. Even if he had a duty to protect Bunta’s financial interests, he argues, then the type of intangible asset that could be the subject of a conversion claim would have to be specifically identified. There was no earmarked or set-aside fund for Bunta’s interest that would be a specifically identifiable asset, which is necessary to sue for conversion. He concludes the claim isn’t allowed when it applies only to the general funds of a dissolving LLC.
Not Typical Company Dissolution, Ejected Member Asserts
Bunta maintains that Mast misleads the Court by invoking the operating agreement and LLC law because this wasn’t a typical dissolution where the company assets were sold to pay the debt to the bank. Rather, Mast simply changed the name of the company, kept all the company equipment, and proceeded to earn $1.7 million. The only thing that changed was cutting Bunta out of the deal, he argues. Bunta asserts that Superior Lumber in 2017 was essentially Superior VacuPress. Mast didn’t dispose of VacuPress’ assets, but “rolled over” all assets and debts to his new company, Bunta’s brief asserts. When Mast resumed operation with the new company, he converted Bunta’s 30% interest in VacuPress by turning it into an interest in Superior Lumber owned solely by the Mast family, Bunta argues.
Bunta notes Ohio courts have allowed conversion claims for intangible assets when the intangible property is identifiable. In the trial court, an expert witness calculated Bunta’s interest by examining the income and profits Superior Lumber earned after he was cut out of the deal. The membership interest is identifiable, and a conversion claim is permissible, he maintains. He notes the Fifth District found the law didn’t prohibit his claim and the amount was identifiable. He urges the Court to affirm the decision.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Vasile Bunta: Thomas White, 330.231.1195
Representing Firman D. Mast: Owen Rarric, 330.497.0700
Do Commercial Insurance Policies Cover Damage from Coronavirus Pandemic?
Neuro-Communication Services Inc. v. the Cincinnati Insurance Company, the Cincinnati Casualty Company, and the Cincinnati Indemnity Company, Case No. 2021-0130
Certified Question. U.S. District Court for the Northern District of Ohio
ISSUES:
- When interpreting a commercial insurance policy, does the presence of the coronavirus known as SARS-CoV-2, or a person infected with COVID-19 constitute direct physical loss or damage to property?
OVERVIEW:
Neuro-Communication Services, a provider of audiology services in Mahoning County, aims to represent a class of businesses seeking payments from commercial property insurers for the disruption caused by the coronavirus pandemic and the government orders to close businesses. Neuro-Communication filed its lawsuit in the U.S. District Court for the Northern District of Ohio. Another group of businesses, with a similar proposed class-action lawsuit, has filed in the U.S. District Court for the Southern District of Ohio.
Before considering Neuro-Communication’s case, the U.S. District Court requested that the Supreme Court of Ohio determine whether Ohio insurance law considers the presence of the SARS-CoV-2 virus, or the presence of a person infected with COVID-19 on a property’s premise, as fitting within the definition of “direct physical loss or physical damage to property” as stated in an insurance policy.
Cincinnati Insurance noted the state supreme court has never directly addressed the interpretation of “direct physical loss or damage to property.” Further, as of 2021, no state supreme court in the country had yet interpreted how the language should be applied to claims regarding the coronavirus pandemic, the insurer wrote
This case has drawn statewide and national participation through amicus curiae briefs, including those from the American Property Casualty Insurance Association, the National Association of Mutual Insurance Companies, the Ohio Restaurant Association, and the Restaurant Law Center, an affiliate of the National Restaurant Association.
The parties have noted that more than 1,400 lawsuits have been filed across the nation by insurance policyholders seeking coverage for losses of income and additional costs associated with closures and safety precautions implemented during the coronavirus pandemic.
BACKGROUND:
Neuro-Communications operates audiology practices in Youngstown and Boardman that provide comprehensive hearing and balance care to patients. Many of the patients are elderly and at high-risk of severe illness from COVID-19.
The business was significantly impacted by shutdown orders issued by Ohio authorities and believes there was the presence of the coronavirus on its premises. The company also suspects several patients, including two who subsequently died from COVID-19, were on the premises prior to government orders to close. The business ceased operation on March 23, 2020, and didn’t resume until May 4, 2020.
Neuro had building and personal property insurance coverage from Cincinnati Insurance. Neuro characterizes the policies as “all-risk” policies that create coverage for all types of hazards except those specifically excluded in the policies. The policies covering September 2019 through September 2020 also included other coverage extensions listed as “business income,” “extra expense,” “extended business income,” and “civil authority.” Neuro submitted a claim to Cincinnati in March 2020, which Cincinnati denied, stating the claim “does not involve direct, physical loss to property at your premises caused by” a loss covered by Neuro’s policy.
Neuro filed a lawsuit in federal court seeking to certify a nationwide class of insureds holding similar policies who have also been denied coverage for losses related to the pandemic.
Physical Damage Required for Claim Coverage, Insurer Asserts
Cincinnati Insurance contends that Neuro’s claims of “direct physical loss or damage” to its property can’t be met under the policy language simply because the coronavirus was present in the community and may have been temporarily present in its offices. The policy doesn’t specifically define “physical loss” or “physical damage,” but the rule of insurance law is to apply the plain, ordinary meaning of the words as used in the context of the policy, the insurer maintains.
The company cites decisions by two Ohio appellate courts — the Eighth District Court of Appeals’ 2008 Mastellone v. Lightning Rod Mut. Ins. Co. and the Tenth District’s 2007 Bethel Village Condominium Assn. v. Republic-Franklin Ins. Co. Those cases raised the issue of direct physical loss and damage and concluded that to have direct physical loss or damage to property, there must be some tangible, physical alteration to the property or structural damage to it, the insurer explains.
Cincinnati Insurance states that its policies to Neuro and others provide coverage for business interruptions and deprivation of use of property because of civil authority orders only after the policy is triggered by a covered loss. Without physical alteration or structural damage to Neuro’s property, there was no coverage for the financial losses the audiology business suffered, the insurer states. Cincinnati Insurance maintains that Neuro is conflating the “loss of use” of its property with loss of property. The business’ property wasn’t structurally altered as if it suffered the damages from a fire, and its property wasn’t lost as if it were stolen by thieves, the insurer states. Because the “core purpose” of the policy is for the protection of the property, the policy provisions are intended to cover structural harm caused by accidents or theft, the company explains.
The insurer maintains that the shutdown unfortunately harmed Neuro, but government regulations routinely impact businesses that face restrictions from noise ordinances, building occupancy requirements, taxes, and other regulations. The insurance policy is intended to cover losses associated with a government order after physical harm to a property, such as restriction to return to a property after it has been flooded, the insurer explains. Coverage for government regulations without the corresponding actual damage to property would lead to “absurd results,” Cincinnati Insurance concludes.
Ambiguous Policy Covers Viral Outbreak, Policyholder Contends
Neuro notes that when courts find an insurance policy’s language to be ambiguous, the policy must be interpreted in favor of coverage for the policyholder. The company notes that while Cincinnati Insurance has defined several key terms in its policies and exclusions, it hasn’t defined “direct physical damage” or “direct physical loss.” The company notes that for nearly 20 years, in response to the 2003 SARS outbreak, insurers have been writing virus exclusions into policies. Neuro notes Cincinnati sells policies with virus exclusions, but that wasn’t included in the policy sold to Neuro, the company states.
In Ohio courts and cases across the nation, “physical damage” hasn’t been so narrowly defined as requiring structural alteration, and the policies themselves would leave an average reader to not believe such damage was required, Neuro maintains. The company points to policy exclusions, such as denial of coverage for bacteria and contamination. Those harms do not cause structural damage, and there would be no need to specifically exclude them if it were clear the policy only applies to permanent physical alteration of the property, Neuro asserts.
And in Neuro’s view, physical damage could include the deprivation of the right to use the property, and that coverage has been provided in cases, such as when ammonia leaking from a nearby business forced another to shut down, or the release of a toxic chemical prompted authorities to clear the area and shut down businesses.
While this case is in its early stages, Neuro argues it intends to prove that the premises, including the air in its offices, was physically damaged by a deadly virus, and that the loss of access and ability to operate on the premises were caused by an unforeseen risk that wasn’t excluded from coverage. On multiple occasions over the past 50 years, properties infested by microscopic particles harmful to human health have constituted direct physical loss, and the coronavirus pandemic shouldn’t be an exception, the company concludes.
Friend-of-the-Court Briefs Submitted
Nine amicus curiae briefs have been submitted. The following organizations submitted briefs supporting Cincinnati Insurance’s position:
- American Property Casualty Insurance Association and National Association of Mutual Insurance Companies, jointly
- Nationwide Mutual Insurance Company
- Ohio Insurance Institute
- State Auto Mutual Insurance Company
The following organizations presented briefs in support of Neuro-Communications:
- Francois Inc.
- Queens Tower Restaurants Inc.
- Restaurant Law Center and Ohio Restaurant Association, jointly
- SITE Centers Corp. and 11 other Ohio businesses, jointly
- United Policyholders
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Neuro-Communication Services Inc.: Nicholas DiCello, 216.696.3232
Representing the Cincinnati Insurance Company et al.: Michael Farrell, 216.621.0200
Can Individual Dismissed Charges in Case with Conviction Be Sealed?
State of Ohio v. G.K., Case No. 2021-0124
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: If a criminal conviction in a case isn’t eligible to be sealed, can dismissed charges in the same case be sealed?
BACKGROUND:
George Moses was twice charged with sexually assaulting his mentally disabled adult daughter. The most recent charges stemmed from incidents between June 2008 and June 2009. In the last reported incident in June 2009, Moses’ cousin, identified in court records as G.K., was alleged to have been present and participated in the sexual assault. A month after the incident, G.K. helped hide Moses’ computer, concealing it from law enforcement.
G.K was indicted for rape, gross sexual imposition, and kidnapping arising from the June sexual assault. He was also charged with obstructing justice and tampering with evidence for hiding Moses’ computer in July. All of the counts were in a single charging document and were part of the same case.
In September 2010, G.K. pleaded guilty to felony obstructing justice, and the remaining charges against him were dropped. G.K.’s attorney told the court the woman had recanted her story and indicated that G.K wasn’t involved in the incident. G.K. was sentenced to one year of community control.
Moses pleaded guilty to rape and was sentenced to 60 years in prison.
Sealing of Dismissed Charges Sought
In 2014, G.K. sought to have the records related to the dismissed charges sealed, noting that the public availability of the dismissed charges were burdening his life, making it difficult to sustain employment.
G.K. acknowledged he wasn’t entitled to have the entire case record sealed under the law at the time of his request because he had a prior drug offense in the 1990s. The Cuyahoga County Prosecutor’s Office objected to the sealing, arguing that under R.C. 2953.52, the law allows cases to be sealed, but not individuals counts within a case. Since the obstruction conviction couldn’t be sealed, none of the dismissed counts could be sealed, the office maintained.
The trial court agreed with the prosecutor and rejected G.K.’s request. G.K. appealed to the Eighth District Court of Appeals. In a 2-1 decision, the Eighth District reversed the trial court, and found that partial sealing of a case is permissible and that G.K. was entitled to have the dismissed charges sealed.
The prosecutor’s office appealed to the Supreme Court of Ohio, which agreed to hear the case.
No Options for Man to Seal Record, Prosecutor Maintains
The sealing of records is only permitted by state law, and two methods are available to those seeking sealing, the prosecutor’s office explains. R.C. 2953.32 permits “eligible offenders” to request that records be sealed. At the time G.K. sought the sealing, he wasn’t an eligible offender because of his prior drug offense, the office notes.
Under R.C. 2953.52, “any person” can request sealing if certain circumstances are present. The prosecutor notes that the law states the “case” can be sealed but not individual charges. Because the obstruction conviction was ineligible for sealing, then G.K.’s case can’t be sealed, the prosecutor asserts. The office notes the Supreme Court in its 2009 State v. Futrall case ruled that when there are multiple convictions under one case number, if one of the convictions can’t be sealed, then none of the remaining convictions can be sealed even if those convictions — if charged separately — would be eligible for sealing.
The prosecutor points to the Court’s statements in Futrall that the General Assembly has recognized the “inherent difficulties” of partially sealing cases and the administrative burdens it would place on the courts.
Dismissed Charges Are Unrelated and Eligible for Sealing, Offender Argues
G.K. notes the Eighth District found R.C. 2953.52 is ambiguous because of its use of both “offense” and “case” when referring to sealing eligibility. He maintains that when read in context, lawmakers intended to allow for the sealing of individual convictions.
R.C. 2953.52(A)(1) authorizes any person “who is found not guilty of an offense by a jury or a court or who is the defendant named in a dismissed complaint, indictment, or information, may apply to the court for an order to seal the person’s official records in the case.” If the law required sealing only if the offender was exonerated of all charges, the law would say “all offenses in a case,” G.K. argues. Because the statute uses both “case” and “offense” in this subsection, he argues it would be absurd to believe the legislature did not intend to seal records when charges were dropped.
The state also maintained G.K.’s case couldn’t be sealed because R.C. 2953.61 doesn’t allow the sealing of charges arising “as a result of or in connection with the same act” that supports a conviction that can’t be sealed.
G.K. supports the Eighth District’s decision, which determined that R.C. 2953.61 doesn’t apply. The dismissed charges G.K. wanted to seal are related to the sexual assault allegations, which are related to an incident in June 2009. He was convicted of obstructing justice related to hiding Moses’ computer in July 2009. The computer produced no evidence related to the sexual assault charges. The prosecutor argues the obstruction charges were a result of a search based on the allegations of sexual assault.
G.K. also notes that shortly after his conviction, the legislature amended the sealing record laws and clarified that individual charges are eligible for sealing. He maintains the amended laws are consistent with court decisions finding the authority to seal dismissed charges and acquittals.
Friend-of-Court Briefs Submitted
In separate amicus curiae briefs supporting the Cuyahoga County prosecutor’s position, the Ohio Association of Municipal and County Clerks and the Ohio Clerk of Courts Association state the current records are not maintained in a system that allows for automated partial sealing. The associations note the current case management systems are not programmed to partially seal case records. The organizations maintain the Eighth District ruling would impose significant administrative burdens and costs on courts because they would have to manually seal records. Court clerks would be required to address the process of partial sealing without the benefit of guidance from the General Assembly, they maintain.
The Cuyahoga County Public Defender and the Ohio Association of Criminal Defense Lawyers jointly submitted a brief supporting G.K. Another joint brief in support of G.K. was submitted by Community Legal Aid Service, Legal Aid Society of Cleveland, Legal Aid Society of Columbus, and Southeastern Ohio Legal Services. Case Western Reserve University Second Chance Reentry Clinic also filed a brief in support of G.K.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing State of Ohio from the Cuyahoga County Prosecutor’s Office: Gregory Ochocki, 216.443.7800
Representing G.K.: Larry Zuckerman, 216.696.0900
These informal previews are prepared by the Supreme Court’s Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews aren’t part of the case record, and aren’t considered by the Court during its deliberations.