State v. G.K.

• Decision Date: 29 October 2020
• Docket Number: No. 109058,109058
• Citation: 161 N.E.3d 824,2020 Ohio 5083
• Parties: STATE of Ohio, Plaintiff-Appellee, v. G.K., Defendant-Appellant.
• Court: Ohio Court of Appeals

161 N.E.3d 824

2020 Ohio 5083

STATE of Ohio, Plaintiff-Appellee,

v.G.K., Defendant-Appellant.

No. 109058

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: October 29, 2020

JOURNAL ENTRY AND OPINION

MARY EILEEN KILBANE, J.:

{¶1} G.K. appeals the trial court's denial of his application to seal the records related to dismissed charges in Cuyahoga C.P. No. CR-09-526944-B.¹ For the reasons that follow, we reverse and remand.

I. FACTUAL BACKGROUND

{¶2} George Moses ("Moses") was indicted on August 19, 2009, for 23 offenses. Of the 23 offenses charged, 21 arose out of sexual misconduct directed at Moses's daughter, who was cognitively impaired. The other two charges were for obstructing justice and tampering with evidence. Moses pled guilty to three out of nine rape charges and three out of six kidnapping charges against his own daughter. The other 17 charges against Moses were nolled. He was sentenced to serve 60 years in prison for his crimes.

{¶3} G.K. is Moses's first cousin. G.K. was named as a codefendant in the August 19, 2009 indictment against Moses. G.K., however, was only charged with seven offenses. The indictment falsely charged G.K. with three counts of rape, one count of gross sexual imposition, and one count of kidnapping for offenses dated June 20, 2009. DNA evidence revealed that it was Moses alone who had sexual contact with his own daughter and the victim recanted her accusations against G.K.

{¶4} In addition to facing the alleged sexual offense charges, the indictment charged G.K. with obstructing justice and tampering with evidence. Those offenses were dated between July 22, 2009, and August 6, 2009, at least one month after the alleged sexual offenses charged against G.K. were thought to have occurred. The record indicates that the obstructing justice charge arose in connection with G.K. allegedly concealing Moses's computer from the police. The police eventually obtained the computer through a search of G.K.'s home. But after a forensic examination, the computer did not yield any evidence against either G.K. or Moses.

{¶5} In a plea agreement, G.K. pled guilty to a single count of obstructing justice and the state nolled all the other charges against him. G.K. was sentenced to community control, which the court terminated early for his good compliance. He later sought to have the dismissed charges sealed.

{¶6} G.K. was 51 years old when he was indicted and had been married for about ten years. He is now 62 years old and has been married for 20 years. He has a tenth-grade education and is a trained locksmith. G.K. described to the trial court how the false charges against him have impacted his entire life:

I've got this placard across my forehead of embarrassment and shame that I've had to suffer and endure all this time, which is totally unfair to live a life — to live a year in my shoes, I don't think anybody could bear. But this is what I have to deal with.

Tr. 66:11-15.

II. PROCEDURAL BACKGROUND

{¶7} Moses, G.K.'s cousin, was indicted on 23 charges in Cuyahoga C.P. No. CR-09-526944-A. He faced nine counts of rape, in violation of R.C. 2907.02(A)(2) ; six counts of gross sexual imposition, in violation of R.C. 2907.05(A)(1) ; six counts of kidnapping, in violation of R.C. 2905.01(A)(4) ; one count of obstructing justice, in violation of R.C. 2921.32(A)(4) ; and one count of tampering with evidence, in violation of R.C. 2921.12(A)(1). The rape charges included a sexually violent predator specification under R.C. 2941.148(A) ; notice of prior conviction under 2929.13(F)(6); and a repeat violent offender specification under R.C. 2941.149(A) related to a prior conviction for attempted rape in violation of R.C. 2923.02 and 2907.02. The kidnapping charges included the same specifications in addition to a sexual motivation specification under R.C. 2941.147(A).

{¶8} DNA evidence determined that Moses — not G.K. — committed all the most egregious crimes. Moses pled guilty to three counts of rape and three counts of kidnapping. The state nolled the 17 other charges against him. On May 13, 2010, the trial court sentenced Moses to ten consecutive years on each count to that he pled guilty, for a total of 60 years, with five years' mandatory post-release control.

{¶9} The indictment included the following seven charges against G.K.: three counts of rape, in violation of R.C. 2907.02(A)(2), a first-degree felony; one count of gross sexual imposition, in violation of R.C. 2907.05(A)(1), a fourth-degree felony; one count of kidnapping, in violation of R.C. 2905.01(A)(4), a first-degree felony; one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a third-degree felony; and one count of obstructing justice, in violation of R.C. 2921.32(A)(4), a fifth-degree felony. The rape charges and kidnapping charge included a sexually violent predator specification under R.C. 2941.148(A). The kidnapping charge also included a sexual motivation specification under R.C. 2941.147(A).

{¶10} The false rape, gross sexual imposition, and kidnapping charges (Counts 13 - 17) were for offenses dated around June 20, 2009. The obstructing justice charge (Count 18) and tampering with evidence charge (Count 19) were for offenses dated between July 22, 2009, through August 6, 2009.

{¶11} G.K. pled not guilty to all charges on September 16, 2009. Around September 22, 2010, after DNA evidence exonerated G.K. and the victim recanted her accusations against him, the state nolled the false rape, gross sexual imposition, and kidnapping charges (Counts 13, 14, 15, 16, and 17). The tampering with evidence charge (Count 19) was also nolled.

{¶12} On September 27, 2010, G.K. pled guilty to a single count of obstructing justice in violation of R.C. 2921.32(A)(4), a fifth-degree felony (Count 18). On October 27, 2010, G.K. was sentenced to one year of community control, with various conditions, and ordered to complete 30 hours of community service. On May 23, 2011, the trial court terminated the community control sanctions early for his good compliance.

{¶13} On August 15, 2014, G.K. sought to have the dismissed charges in the indictment sealed pursuant to R.C. 2953.52. He did not request to have the obstructing justice conviction sealed and concedes he is not statutorily eligible to do so.

{¶14} The judge originally assigned to G.K.'s case oversaw a hearing regarding G.K.'s application to seal the dismissed charges on April 27, 2015. At the hearing, the state argued that G.K.'s dismissed charges could not be sealed because doing so would require the court to order a partial sealing since G.K.'s obstructing justice charge cannot be sealed. The trial court expressed hesitation about refusing to seal charges that were proven false just because another charge in the indictment resulted in a conviction that G.K. is not statutorily eligible to have sealed:

But in this case, if what [defense counsel] is outlining is true and the dismissed counts that were initially brought from a grand jury, based on information that was later proven false, now it's just on the record, are now hampering his client's ability to be employed, at no fault of his own.

What public policy is advanced in not sealing the claims that were not only not proven, but during the discovery phase of the case determined to be false, if [defense counsel] is representing the facts correctly, and — were based on accusations that were later recanted?

* * *

[A]s I'm hearing this I'm hard pressed to think of a public policy that would be advanced by allowing charges that were brought to your office, that were later dismissed, not as a result of a negotiated plea agreement, but because of the discovery that the information that was used to obtain the indictment in the first place were based upon false information.

I have no — I cannot see how — how any public policy is advanced by requiring that those remain as part of the public record in this case when they're, you know, clearly salacious, scandalous accusations, that were not proven.

Tr. at 22:13-23:1; 25:18-26:7.

{¶15} Nevertheless, the trial court allowed the state to supplement the record to provide the Ohio Supreme Court case it believed prohibited the court from sealing the false, dismissed charges on G.K.'s record. Both parties finished briefing the issue on April 28, 2015. Thereafter, the case inexplicably sat dormant until February 11, 2019, when a newly appointed judge was assigned to the case.

{¶16} The newly assigned judge also held a hearing on G.K.'s application to seal his dismissed charges on August 16, 2019. The state maintained that the law does not permit records to be partially sealed, but was forthright that it otherwise did not have an interest in opposing G.K.'s request to seal. The trial court denied the application on September 23, 2019. The judgment entry stated:

Motion for expungement of criminal record, filed, $50, filed 08/15/2014, is denied. The court reviewed the briefs of the parties and a supplemental hearing was held on the record. Pursuant to Ohio Revised Cod 2953.61(A), defendant is not an eligible offender. The obstruction of justice charges [sic] at issue arose in conjunction with the charges that were dismissed.

{¶17} This appeal follows. G.K. asserts one assignment of error:

Assignment of Error No. 1 The trial court erred when it denied Appellant's application to seal the records related to the dismissed charges.

III. LAW AND ANALYSIS

A. Standard of review.

{¶18} " ‘We review a trial court's decision on a motion to seal record for an abuse of discretion.’ " State v. Chudakoff , 8th Dist. Cuyahoga No. 108770, 2020-Ohio-2723, 2020 WL 2079044, ¶ 8, citing State v. Krutowsky , 8th Dist. Cuyahoga No. 81545, 2003-Ohio-1731, 1982 WL 4227, ¶ 10. A trial court abuses its discretion where its decision is unreasonable, arbitrary, or unconscionable. Bales v. Forest River, Inc. , 8th Dist. Cuyahoga No. 107896, 2019-Ohio-4160, 2019 WL 5079626, ¶ 21, citing Blakemore v. Blakemore , 5...