[Cite as State v. G.F.A., 2019-Ohio-4978.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

STATE OF OHIO, : 

 

 Plaintiff-Appellee, : 

 No. 108113 

 v. : 

 

G. F. A., : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: December 5, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-16-611801-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel T. Van, Assistant Prosecuting 

Attorney, for appellee. 

Mark A. Stanton, Cuyahoga County Public Defender, and 

David M. King, Assistant Public Defender, for appellant. 

MARY EILEEN KILBANE, A.J.: 

Defendant-appellant, G.F.A., appeals from the trial court’s denial of 

his motion to seal his record. For the reasons set forth below, we reverse and 

remand. 
In December 2016, G.F.A. was charged with felonious assault and 

domestic violence. The charges allege that G.F.A. physically assaulted his mother, 

who was 76 years old at the time. The matter was set for trial on March 27, 2017. 

Prior to the start of trial, the state dismissed the matter in light of the lack of 

cooperation of the victim, G.F.A.’s mother. The state also indicated that based on 

conversations with the mother, the events did not occur as she had reported to the 

police. The trial court granted the dismissal without prejudice, noting that the 

“victim [is] not available and has recanted. [G.F.A.] advised to stay away from victim 

and he agreed. [G.F.A.] is leaving the area for employment elsewhere.” 

One year later, in December of 2017, G.F.A. filed a motion to seal his 

record. The state opposed, and the trial court held a hearing on the matter. At the 

hearing, defense counsel advised the trial court that the case had been dismissed by 

the state and G.F.A. hoped to relocate to Florida. The state objected, noting that the 

case was dismissed because the elderly victim was injured and unable to come to 

court to testify. The state noted that it would reindict if it received more information. 

At the conclusion of the hearing, the trial court took the matter under advisement. 

Thereafter, the court issued a journal entry denying G.F.A.’s motion. The entry 

stated: “[G.F.A.’s] motion to seal court records denied. Based on the expungement 

investigation report.” 

It is from this order G.F.A. appeals, raising the following two 

assignments of error for review: 
Assignment of Error No. 1 

The trial court abused its discretion in denying [G.F.A.’s] motion for 

expungement as it failed to properly weigh the competing interests in 

the sealing of [G.F.A.’s] records. 

Assignment of Error No. 2 

The trial court failed to articulate and create a record for this Court to 

engage in a meaningful appellate review. 

In the first assignment of error, G.F.A. argues that the trial court 

failed to properly weigh his interests when it denied his motion to seal his record. 

In State v. C.K., 8th Dist. Cuyahoga No. 99886, 2013-Ohio-5135, this 

court explained the standard of review of a ruling on a motion to seal a record of 

conviction as follows: 

In general, a trial court’s decision to grant or deny a request to seal 

records is reviewed under an abuse of discretion standard. In re Fuller, 

10th Dist. Franklin No. 11AP-579, 2011-Ohio-6673, ¶ 7. An abuse of 

discretion occurs when a decision is unreasonable, arbitrary, or 

unconscionable. State ex rel. Nese v. State Teachers Retirement Bd. of 

Ohio, 136 Ohio St.3d 103, 2013-Ohio-1777, 991 N.E.2d 218, ¶ 25. 

Id. at ¶ 10. 

R.C. 2953.52 sets forth the procedure by which trial courts may seal a 

defendant’s record following a dismissal of the charges. R.C. 2953.53(A)(1) provides 

that “[a]ny 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.” Once 

the defendant files the application, “the court shall set a date for a hearing and shall 

notify the prosecutor in the case of the hearing on the application. The prosecutor 
may object to the granting of the application by filing an objection with the court 

prior to the date set for the hearing” and specifying in the objection the reasons the 

prosecutor believes justify a denial of the application. R.C. 2953.52(B)(1). 

In considering the application, the trial court shall: 

(a)(i) Determine whether the person was found not guilty in the case, 

or the complaint, indictment, or information in the case was dismissed 

* * *; (ii) If the complaint, indictment, or information in the case was 

dismissed, determine whether it was dismissed with prejudice or 

without prejudice and, if it was dismissed without prejudice, determine 

whether the relevant statute of limitations has expired; 

(b) Determine whether criminal proceedings are pending against the 

person; 

(c) If the prosecutor has filed an objection in accordance with division 

(B)(1) of this section, consider the reasons against granting the 

application specified by the prosecutor in the objection; 

(d) Weigh 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)(a)-(d). 

If the court determines, after complying with R.C. 2953.52(B)(2), that 

(1) the complaint, indictment, or information in the case was dismissed; (2) that no 

criminal proceedings are pending against the person; and (3) that the interest of the 

person having the records pertaining to the case are not outweighed by any 

legitimate governmental needs to maintain such records, then “the court shall issue

an order directing that all official records pertaining to the case be sealed and that 

* * * the proceedings in the case be deemed not to have occurred.” 

(Emphasis added.) R.C. 2953.52(B)(4). 
It is the defendant’s burden to demonstrate legitimate reasons, as 

opposed to a general privacy interest, why the records should not remain open to 

the public. State v. J.D., 8th Dist. Cuyahoga No. 99521, 2013-Ohio-4706, 1 N.E.3d 

434, ¶ 8, discretionary appeal not allowed, 2014-Ohio-1182, 2014 Ohio LEXIS 674 

(Mar. 26, 2014), citing State v. Haney, 70 Ohio App.3d 135, 590 N.E.2d 445 (10th 

Dist.1991). “Once this burden is met and those needs outweigh the legitimate 

interests of the state in maintaining the records, the application should be freely 

granted.” Id., citing State v. Garry, 173 Ohio App.3d 168, 2007-Ohio-4878, 877 

N.E.2d 755 (1st Dist.). 

Here, G.F.A. offered the following reasons for sealing his record 

before the trial court: 

[DEFENSE COUNSEL]: This is a matter that had been dismissed. 

There was a family dispute that resulted in charges of a very serious 

nature. However, before the case even came to trial, the prosecutor did 

dismiss it. 

There was, in fact, a later indication by the prosecution after that had 

been taken care of that information would then be presented to ICE 

authorities as to a 2010 disorderly conduct, an M-4. 

So even though the case was dismissed, [G.F.A.] was then contacted by 

ICE. He did go through interviews with them. They determined that 

that certainly was no reason to challenge his status here in the United 

States. 

He is seeking a sealing of the dismissal. He hopes to move to Florida 

soon, live in the Tampa area. He is OPOTA certified for security, 

believes that he has a line on a job down in that part of the country that 

would serve not only himself, but this country well in doing security. 

And, Judge, so for those reasons, he is an eligible offender and asking 

for the Court to seal the record of this matter. 
(Tr. 6-7). 

The state, on the other hand, contended that: 

[e]ven though this was a dismissed case, it was dismissed because the 

elderly victim was unable to come to court to testify. The elderly victim 

was injured, and we’re objecting. 

A dismissal doesn’t mean innocence. And the note says that if we get 

more information, we would reindict. 

(Tr. 7-8). 

These reasons are different than the reasons offered by the state 

before trial. Prior to the start of trial, the state moved to dismiss the case because 

the victim, G.F.A.’s mother, was uncooperative. The state indicated that based on 

conversations with the mother, the events did not occur as she had reported to the 

police. At the hearing to seal G.F.A’s record, the state contended that the records 

should not be sealed because the elderly victim was unable to come to court to testify 

and made the general argument that a dismissal does not equate to innocence. 

It is G.F.A.’s burden to demonstrate legitimate reasons as to why his 

record should be sealed, and based on the foregoing, we find that G.F.A. has met his 

burden. G.F.A.’s application is based on his belief that he will obtain gainful 

employment in security. Defense counsel stated that G.F.A. “is seeking a sealing of 

the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is 

OPOTA certified for security, believes that he has a line on a job down in that part of 

the country that would serve not only himself, but this country well in doing 

security.” (Tr. 7). The state opposed because the victim did not come to trial and “a 

dismissal doesn’t mean innocence.” G.F.A.’s need for employment outweighs the 
state’s general need to maintain the record. R.C. 2953.52(B)(2)(c)-(d). Additionally, 

it is undisputed that the underlying criminal complaint was dismissed and that no 

charges were pending against G.F.A. R.C. 2953.52(B)(2)(a)-(b). 

Having met this burden, the trial court should have granted G.F.A.’s 

application as set forth in R.C. 2953.52(B)(4), which provides that “the court shall

issue and order directing that all official records pertaining to the case be sealed” if 

the complaint was dismissed, no criminal proceedings are pending, and the interest 

of the person having the records pertaining to the case are not outweighed by any 

legitimate governmental needs to maintain such records. (Emphasis added.) 

Indeed, R.C. 2953.32 “is to be liberally construed, the relief available 

is to be liberally granted, and it is an abuse of discretion not to do so.” State v. 

Hilbert, 145 Ohio App.3d 824, 828, 764 N.E.2d 1064 (8th Dist.2001). See State v. 

Clellan, 10th Dist. Franklin No. 10AP-44, 2010-Ohio-5867, ¶ 19 (where the Tenth 

District Appeals Court found that neither the state nor the trial court’s decision 

articulated a legitimate government interest to support a decision to deny the 

defendant’s application to seal her records. As a result, the trial court’s judgment 

was reversed and the matter was with instructions to grant defendant’s application 

to seal her record under R.C. 2953.52). See also Gehris v. State, 9th Dist. Wayne 

No. 99CA0060, 2000 Ohio App. LEXIS 3975 (Aug. 30, 2000). G.F.A. should not be 

saddled with a criminal arrest record when the state walked away from the 

prosecution. 
Therefore, we find that the trial court abused its discretion in denying 

G.F.A.’s motion to seal his record. 

Accordingly, the first assignment of error is sustained. 

In the second assignment of error, G.F.A. argues the trial court failed 

to articulate and create a record for meaningful appellate review. However, our 

disposition of the first assignment of error renders this assignment of error moot. 

App.R. 12. 

The dissent finds that our decision relieves defendants from meeting 

their burden when applying to seal their records. In support of its contention, the 

dissent relies on J.D., maintaining that J.D. is similar to the instant case. The facts 

of J.D., however, are vastly different from the instant case. It has a complex, legal 

history in multiple courts, spanning over 25 years involving an aggravated murder 

death-penalty conviction. In the instant case, three months passed from the time 

G.F.A. was indicted to the time the state decided not to prosecute the matter, and 

G.F.A. sought to seal his record within one year from the time he was indicted. 

Moreover, there has never been a finding of guilt against G.FA, and unlike G.F.A, 

J.D. did not meet his burden to demonstrate legitimate reasons why his record 

should not remain open to the public. 

In J.D., the defendant, J.D., was charged with two counts of 

aggravated murder with death penalty specifications, kidnapping, and aggravated 

burglary, in connection with the death of Anthony Klann. The matter was tried to a 

three-judge panel, which found J.D. guilty of all counts. J.D. was sentenced to death, 
and a consecutive 10 to 25-year term of imprisonment was imposed on the other 

charges. J.D., 8th Dist. Cuyahoga No. 99520, 2013-Ohio-4472, at ¶ 2. 

Following various unsuccessful state and federal challenges to his 

conviction, J.D. filed a writ of habeas corpus in the United States District Court for 

the Northern District of Ohio. The petition included a claim that the prosecution 

had failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court granted his petition, 

finding that most of the evidence that J.D. introduced to support his Brady claim 

was withheld by the prosecution and that J.D.’s due process rights were in fact 

violated. The district court ordered the state to set aside J.D.’s conviction and 

sentence or conduct another trial within 180 days. The Sixth District Court of 

Appeals upheld the district court’s decision. Id. at ¶ 3. 

On remand, after further discovery violations by the state and the 

failure to retry J.D. within the time allowed by federal court, the federal district court 

barred retrial of J.D. Id. at ¶ 4-6. The Sixth Circuit affirmed the writ barring J.D.’s 

reprosecution. Id. at ¶ 6. 

Thereafter, J.D. filed a motion to seal the records. He alleged that 

sealing was necessary to allow him to “be able to pursue the remainder of his life 

without being saddled with the public record of this case.” J.D., 8th Dist. Cuyahoga 

No. 99521, 2013-Ohio-4706, 1 N.E.3d 434, at ¶ 3. The state opposed the motion, 

arguing that the state needed access to the records in three other matters: the retrial 

and appeal of a codefendant and two civil suits filed by J.D. against the state. Id. 
The trial court held a hearing on J.D.’s motion, at which it heard from J.D.’s 

attorney, the public defender’s office, and the state. The court granted the motion, 

finding that the indictment against J.D. was dismissed, he was not facing any 

pending criminal charges, and “the interest of the applicant in having the records 

pertaining to the case sealed are not outweighed by any legitimate needs of the 

government to maintain those records.” Id. at ¶ 4. The state then appealed. 

On appeal, the state argued the trial court abused its discretion when 

it sealed “all official records pertaining to this case” because J.D.’s records were 

required for an ongoing criminal case and two civil cases. Id. at ¶ 4. This court 

agreed with the state, finding that trial court abused its discretion when it granted 

J.D.’s motion because “J.D. offered no justification for the sealing of the records of 

his investigation and indictment apart from a general privacy interest, and the state 

offered a significant justification beyond the public’s right to open records.” Id. at 

¶ 18. 

J.D. argued his records should be sealed because: “(1) the prior 

expungement ordered by the federal court, (2) that he was saddled with public 

records of arrest and indictment, and (3) that he was living a law-abiding life and 

was gainfully employed.” Id. at ¶ 9. The J.D. court found that “the first reason does 

not present a justification for further sealing because the parameters of the federal 

court order were complied with, and the records of J.D.’s trial and conviction were 

expunged pursuant to that order.” Id. at ¶ 10. With regard to the second and third 

reasons, the J.D. court noted that J.D. asserted only a general privacy argument 
supporting his motion and indicated he had no issues gaining employment despite 

the existence of the records he sought to seal. Id. at ¶ 11. The state, on the other 

hand, asserted a legitimate need to use records associated with its investigation in 

the civil suits J.D. filed seeking damages from the state’s violation of his 

constitutional rights and relying on events and information from J.D.’s trial. Id. at 

¶ 15. 

These facts and circumstances are completely different from the 

state’s decision in the instant case to dismiss the charges against G.F.A. In J.D., his 

death penalty conviction by a three-judge panel was overturned by federal court due 

to discovery violations by the state and its the failure to retry J.D. within the time 

allowed by federal court. This is in stark contrast to the instant case. Here, G.F.A. 

never went to trial, nor was he convicted. Rather, his domestic violence and 

felonious assault charges were dismissed because the state failed to prosecute. J.D. 

was tried and convicted of a capital offense, and after years of legal maneuvering 

through the state and federal courts, the state ultimately chose not to prosecute him 

timely. 

Moreover, J.D. did not meet his burden demonstrating legitimate 

reasons as to why his record should be sealed. At his hearing, J.D. expressed he was 

“gainfully employed.” Whereas, the exact opposite was conveyed at G.F.A.’s hearing. 

G.F.A.’s defense counsel stated that G.F.A. needs his record sealed because he 

believes he has a gainful employment opportunity in Florida. (Tr. 7). Additionally, 

in opposing G.F.A.’s motion, the state argued the elderly victim was injured and “a 
dismissal doesn’t mean innocence.” This argument is completely different from the 

state’s argument in J.D. In J.D., J.D.’s criminal records were necessary for the civil 

suits he initiated against the state. Here, the record is clear that G.F.A. did not have 

any ongoing cases at the time of his motion to seal his record, let alone any civil cases 

related to his criminal case. 

Accordingly, judgment is reversed, and the matter is remanded to the 

trial court with instructions to grant G.F.A.’s application to seal his record under 

R.C. 2953.52. 

It is ordered that appellant recover from 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. 

 ______ 

MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE 

EILEEN A. GALLAGHER, J., CONCURS; 

MARY J. BOYLE, J., DISSENTS WITH SEPARATE OPINION 

MARY J. BOYLE, J., DISSENTING: 

I respectfully dissent. The majority’s opinion relieves defendants 

from carrying their burden on an application to seal criminal convictions and belies 

opinions from this court and other courts that require defendants to demonstrate 
legitimate reasons, as opposed to a general privacy interest, as to why the records 

should not remain open to the public. J.D., 8th Dist. Cuyahoga No. 99521, 2013-

Ohio-4706, at ¶ 8, citing Haney, 70 Ohio App.3d 135, 590 N.E.2d 445; State v. W.C., 

8th Dist. Cuyahoga No. 105353, 2018-Ohio-1182, ¶ 10; State v. Delgado, 8th Dist. 

Cuyahoga No. 102653, 2015-Ohio-5256, ¶ 10; State v. Andrasek, 8th Dist. Cuyahoga 

No. 81398, 2003-Ohio-32, ¶ 12. In this case, G.F.A. clearly did not carry his burden 

to demonstrate a legitimate reason for sealing, and as a result, I disagree with the 

majority that the trial court abused its discretion and that its decision was 

unreasonable, arbitrary, or unconscionable. 

As written, the majority’s opinion undermines the well-established 

burden that defendants must carry when applying to seal their records, which 

requires more than “a general privacy interest” and “merely reciting the statutory 

requirements” and stating that the defendant qualifies for sealing. J.D. at ¶ 11; State 

v. Wilson, 10th Dist. Franklin Nos. 13AP-684 and 13AP-685, 2014-Ohio-1807, ¶ 17. 

Going forward, the majority’s opinion will allow defendants to ignore long-standing 

precedent and rely merely on their eligibility to have their records sealed. 

In recognizing that “[i]t is the defendant’s burden to demonstrate 

legitimate reasons, as opposed to a general privacy interest, why the records should 

not remain open to the public[,]” the majority cites to State v. J.D. In J.D., the 

defendant applied to seal his records, and in his application, the defendant “alleged 

that sealing was necessary to allow him to ‘be able to pursue the remainder of his life 

without being saddled with the public record of his case.’” Id. at ¶ 3. While the trial 
court held a hearing, the defendant did not offer any evidence in support of his 

application. Nevertheless, the trial court granted his application. On appeal, we 

found that the trial court abused its discretion in granting the defendant’s 

application because he failed to carry his burden to demonstrate that his need for 

sealing outweighed the legitimate interests of the state. We noted that the defendant 

only alleged “a general privacy interest possessed by all individuals” and that he 

“indicated he had no issues gaining employment despite the existence of the records 

he sought to seal.” Id. at ¶ 11. Accordingly, we found that the defendant “offered no 

justification for the sealing of the records of his investigation and indictment[.]” Id. 

at ¶ 18. 

This case is similar to J.D. G.F.A.’s application only stated, “On 

December 7, 2016, [G.F.A] was charged with felonious assault and domestic 

violence. On March 27, 2017, the case was dismissed. In this instance, [G.F.A.] is 

now eligible to have the record sealed.” In other words, G.F.A. did not set forth any 

legitimate reasons in support of his application other than the fact that he was 

eligible for sealing, which is not enough to satisfy his burden. See State v. Hooks, 

10th Dist. Franklin No. 15AP-522, 2016-Ohio-3138, ¶ 14 (“[A]ppellee failed to 

‘present testimony or any evidence’ to demonstrate his interest in having his record 

sealed” as his application only said he qualified for sealing under R.C. 2953.52); 

State v. Draper, 10th Dist. Franklin No. 14AP-791, 2015-Ohio-1781, ¶ 11 (“[A]ppellee 

did not present testimony or any evidence to demonstrate her interest in having the 

record of her dismissals sealed. Appellee merely provided an application stating that 
she qualified for sealing of records under R.C. 2953.52, and therefore failed to meet 

her burden of proof under R.C. 2953.52.”); Wilson at ¶ 17 (defendant’s recital of 

statutory language showing he was eligible for sealing was insufficient to meet his 

burden); State v. Moore, 5th Dist. Stark No. 2012CA00047, 2012-Ohio-4483, ¶ 15 

(“The mere fact of an acquittal does not require the sealing of records.”). 

Turning to the hearing, G.F.A. did not present any evidence in 

support of his application. Instead, his attorney stated, “[G.F.A.] is seeking a sealing 

of the dismissal. He hopes to move to Florida soon, live in the Tampa area. He is 

OPOTA certified for security, believes that he has a line on a job down in that part of 

the country that would serve not only himself, but this country well in doing 

security.” In other words, G.F.A.’s attorney only stated that G.F.A. wanted to move 

to Florida because he had a job opportunity there and that G.F.A. was eligible for 

sealing, but in no way indicated that the charges were impeding his efforts to locate 

a job or move to Florida. 

Foremost, the reasons offered by G.F.A.’s attorney do not constitute 

legitimate reasons that satisfy G.F.A.’s burden. Those statements do not indicate 

that the records which G.F.A. wishes to seal are affecting his employment 

opportunities or ability to earn a living. See State v. A.V., 9th Dist. Lorain No. 

18CA011315, 2019-Ohio-1037, ¶ 16 (“While A.V. was present at the hearing, he did 

not testify or present evidence of his career goals and his efforts towards obtaining 

those career goals.”); J.D., 8th Dist. Cuyahoga No. 99521, 2013-Ohio-4706, at ¶ 11 

(“J.D. indicated he had no issues gaining employment despite the existence of the 
records he sought to seal.”); State v. Shaffer, 11th Dist. Geauga No. 2009-G-2929, 

2010-Ohio-6565, ¶ 31 (“[A]ppellant did not testify his employment prospects have 

been adversely affected by his conviction.”); In re Sealing of the Record of Brown, 

10th Dist. Franklin No. 07AP-715, 2008-Ohio-4105, ¶ 13 (“[Appellant] did not 

clearly articulate that her financial problems were related to her criminal record.”). 

The majority states that “G.F.A.’s defense counsel stated that G.F.A. needs his record 

sealed because he believes he has a gainful employment opportunity in Florida.” 

The majority adds words not mentioned by G.F.A.’s attorney as G.F.A.’s attorney 

presented no evidence, let alone asserted, that G.F.A.’s records were preventing him 

from obtaining such a position. The words actually spoken by G.F.A.’s attorney in 

no way state that G.F.A.’s possible employment opportunity was dependent upon 

the sealing of the criminal proceedings, which can still be brought against him as the 

statute of limitations has not passed. By reading words into the transcript that are 

not there, the majority carries G.F.A.’s burden for him. 

Further, even if G.F.A.’s attorney’s statements actually set forth a 

legitimate reason in support of sealing, those statements do not constitute evidence. 

Haney, 70 Ohio App.3d at 138-139, 590 N.E.2d 4455 (“[A]lthough there was a 

hearing, no evidence, only argument of counsel, was presented.”); A.V. at ¶ 16 (“A.V. 

relied solely upon his counsel’s arguments made during the hearing, which is not 

evidence.”); see also RNG Props., Ltd. v. Summit Cty. Bd. of Revision, 140 Ohio 

St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906, quoting Corporate Exchange Bldgs. IV 

& V, L.P. v. Franklin Cty. Bd. of Revision, 82 Ohio St.3d 297, 695 N.E.2d 743 (1998) 
(“We have long held that ‘statements of counsel are not evidence.’”). Therefore, 

there was, in fact, no evidence presented in support of granting G.F.A.’s application. 

The majority says that the state failed to articulate a legitimate 

government interest to support denying G.F.A.’s application. However, “it is 

[G.F.A.’s] burden to show that his interest in sealing the records is equal to or 

outweighs the state’s interest in maintaining those records, not the state’s burden. 

Therefore, there is no requirement that the state present any evidence at [a R.C. 

2953.52] hearing.” State v. Newton, 10th Dist. Franklin Nos. 01AP-1443 and 01AP1444, 2002-Ohio-5008, ¶ 10; see also Shaffer at ¶ 25 (citing Newton); Haney at 138 

(even if the state does not file objections, a trial court must still weigh the interests 

of the applicant against the government’s interests in maintaining those records, 

and it is the applicant’s burden to show that his or her interests are equal or greater 

to the government’s). 

Furthermore, contrary to the majority’s assertions, the state did 

articulate an interest in maintaining G.F.A.’s records. In its brief in opposition, the 

state said that it opposed G.F.A.’s application because “of the nature of the facts, that 

an elderly victim was injured.” Further, at the hearing, the state said, “The elderly 

victim was injured, and we’re objecting. A dismissal doesn’t mean innocence. And 

the note says that if we get more information, we would reindict.” In fact, it appears 

that the state can re-indict G.F.A. for felonious assault up until November 19, 2022, 

which is when the statute of limitations for that charge expires. See 

R.C. 2901.13(A)(1)(a) (statute of limitations for felony is six years). While a trial 
court cannot summarily deny an application based solely on the nature of the 

offense, it can still consider the victim’s injuries as a legitimate government interest. 

State v. Reiner, 8th Dist. Cuyahoga No. 103775, 2016-Ohio-5520, ¶ 15. Additionally, 

the state’s objection based upon a possible re-indictment constitutes an interest that 

a court may weigh when considering an application to seal. See State v. Bates, 6th 

Dist. Williams No. WM-11-007, 2012-Ohio-1397, ¶ 12 (“There is * * * ample 

documentation in the record that it was the state’s intent to resubmit appellant’s 

case to the grand jury. That intent, although not constituting pending criminal 

proceedings, * * * is a state interest that the trial court may legitimately weigh in 

balancing the interests of the parties.”). 

Therefore, I would find that the trial court did not abuse its discretion 

in denying his application because G.F.A. failed to set forth any legitimate reason 

beyond his eligibility in either his application for sealing or at the hearing. By 

holding that G.F.A.’s “justifications” were enough to carry his burden, the majority 

undermines long-standing precedent that requires a defendant to show more than 

mere eligibility and a general privacy interest to have his or her records sealed. 

While G.F.A. was never found guilty of the crimes charged, he has not demonstrated 

that he has a legitimate interest in having his records sealed, and even less that his 

interest in having the records sealed is equal to or greater than the government’s 

interest in maintaining those records. 

Accordingly, I would overrule G.F.A’s first assignment of error. 
I would also overrule G.F.A.’s second assignment of error. The trial 

court’s reference to the expungement investigation report, which showed that G.F.A. 

was previously charged with domestic violence in 1989, 1992, and 2010, as well as 

considering the fact that G.F.A. offered no legitimate reasons or evidence to support 

his application, was enough to allow this court to engage in meaningful appellate 

review of the trial court’s decision.