State v. Sager

• Decision Date: 18 January 2019
• Docket Number: C-180052,NOS. C-180051,S. C-180051
• Citation: 131 N.E.3d 335,2019 Ohio 135
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Lakysha SAGER, Defendant-Appellant.
• Court: Ohio Court of Appeals

131 N.E.3d 335

2019 Ohio 135

STATE of Ohio, Plaintiff-Appellee,

v.Lakysha SAGER, Defendant-Appellant.

NOS. C-180051

C-180052

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: January 18, 2019

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.

OPINION

Cunningham, Presiding Judge.

{¶1} Defendant-appellant Lakysha Sager appeals the decision of the Hamilton County Municipal Court denying her second application to seal records of her convictions for interference with custody, in violation of R.C. 2919.23. Sager had taken her then nine- and 11-year-old daughters from a school-bus stop without the knowledge or permission of their father, the girls' residential parent. Because the girls were victims of Sager's offenses, and because they were under 16 years of age at the time of the offenses, the trial court did not err in concluding that it lacked jurisdiction under R.C. 2953.36 to grant Sager's application.

I. Facts

{¶2} From the record properly before us, including the original papers filed in the criminal proceeding and the victim-impact statement prepared prior to sentencing, we glean that Sager and Dante Payne, now divorced, have two daughters. Payne was the residential parent with legal custody of the girls. Sager was afforded visitation every other weekend by court order. On Thursday, April 18, 2013, Sager took the girls from their school-bus stop without Payne's knowledge or permission. After the girls were reported missing from school, the police were notified and an Amber Alert was issued. Sager returned the girls to police authorities at 10 p.m., some 14 hours after taking them from the school-bus stop.

{¶3} A Hamilton County Grand Jury returned a two-count indictment charging Sager with interference with custody. The indictment alleged that Sager had knowingly, without privilege to do so, or recklessly enticed, taken, kept, or harbored her two daughters, children under the age of 18, from their parent, guardian, or custodian. Each count named a separate daughter as the child taken in violation of the statute.

{¶4} R.C. 2919.23(A) provides, in pertinent part:

No person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section:

(1) A child under the age of eighteen, or a mentally or physically handicapped child under the age of twenty-one[.]

{¶5} Following trial in the Hamilton County Municipal Court, a jury returned guilty verdicts on both counts. The trial court entered judgment on the verdicts and continued the matter for a presentence investigation. The court ultimately denied Sager's motion for a new trial on grounds of prosecutorial misconduct and insufficiency of the evidence, and sentenced Sager to a suspended 30-day jail term and a lengthy period of "probation." Sager's several direct appeals from the trial court's judgments of conviction were dismissed.

{¶6} In June 2016, Sager filed an application to seal the records of her convictions. The state objected, arguing that since the victims of Sager's offenses were nine- and 11-year-old children, she was not eligible to have the records of her convictions sealed. The trial court denied Sager's application without identifying the basis of its decision. Sager appealed. This court affirmed the trial court's denial on other grounds and without reaching the issue of whether Sager's application to seal was properly denied on the basis of the age of the victims. See State v. Sager , 1st Dist. Hamilton No. C-160664 (Nov. 11, 2017).

{¶7} In January 2018, Sager returned to municipal court and filed a motion to "find applicant eligible to seal criminal record[s]," which the trial court construed as a subsequent application to seal records. The state waived any procedural objections to the motion and renewed its contention that Sager was ineligible as a matter of law. After a hearing on the matter, the same trial court judge who had presided over the jury trial and Sager's first application agreed, noting in his entry that because the offenses involved child victims, Sager was not eligible to have the records sealed. Sager appealed again.

II. Records of Certain Child-Victim Crimes May Not Be Sealed

{¶8} Here, in a single assignment of error, Sager challenges the trial court's determination that, as a matter of law, she was ineligible to have her records of conviction sealed. She maintains that she was eligible because the victim of her interference-with-custody offenses was Payne, the children's custodial parent, and not the minor children themselves.

{¶9} The sealing of records of conviction is an act of grace created by the General Assembly, and it can be granted only when all requirements for eligibility are met. See State v. Futrall , 123 Ohio St.3d 498, 2009-Ohio-5590, 918 N.E.2d 497, ¶ 6. Generally, an appellate court will not disturb a trial court's decision to deny an application to seal records absent an abuse of discretion. But where, as here, the question of eligibility for sealing involves a purely legal question, we review the issue de novo. See State v. Blair , 2016-Ohio-5714, 62 N.E.3d 201, ¶ 4 (1st Dist.), citing Futrall at ¶ 6 ; see also State v. Hill , 2016-Ohio-1551, 63 N.E.3d 690, ¶ 6 (10th Dist.).

{¶10} R.C. 2953.32 identifies the requirements for an applicant seeking to have records of her convictions sealed. The object of the statute is "to provide remedial relief to qualified offenders in order to facilitate the prompt transition of these individuals into meaningful and productive roles." Barker v. State , 62 Ohio St.2d 35, 41, 402 N.E.2d 550 (1980). A court may seal records only when all statutory requirements for eligibility have been met. See Hill at ¶ 8.

{¶11} But R.C. 2953.36 precludes the sealing of records of certain offenses. See State v. Clark , 1st Dist. Hamilton No. C-130672, 2014-Ohio-3612, 2014 WL 4160354, ¶ 5. The current version of R.C. 2953.36(A)(6), also in effect at the time that Sager filed her second application, provides that the record-sealing processes in R.C. 2953.32 do not apply to "[c]onvictions of an offense in circumstances in which the victim of the offense was less than sixteen years of age when the offense is a misdemeanor of the first degree or a felony[.]" See State v. LaSalle , 96 Ohio St.3d 178, 2002-Ohio-4009, 772 N.E.2d 1172, paragraph two of the syllabus. We note that versions of former R.C. 2953.36(F), effective before July 2015, precluded the sealing of records of offenses where the child victims were less than 18 years of age.

III. Who Is a Victim of an R.C. 2919.23 Offense?

{¶12} The resolution of Sager's assignment of error depends on determining who is the victim of her interference-with-custody offenses for purposes of R.C. 2953.36(A)(6). If her children were victims, then R.C. 2953.36(A)(6) would deny the trial court jurisdiction to seal the records of Sager's convictions. If, as Sager argues, the children's custodial parent, Payne, was the victim, the statute would not apply and the more general provisions of R.C. 2953.32 would control her eligibility.

{¶13} But the text of the interference-with-custody statute does not define who is the "victim" of the proscribed offense. Neither the parties nor this court has identified any legal authority in Ohio answering this question directly.

{¶14} Sager raises three arguments in support of her position. She first asserts that whoever has the right to custody of the minor children taken or harbored is the victim of the interference-with-custody offense. Since custody of a child is a right that belongs to the parent, Sager argues, any interference with that custody harms the parent and not the child.

{¶15} But it does not follow from this argument—equating "harm" with status as a "victim"—that only the parent is harmed when custody is interfered with. Under Sager's logic, the children could well be victims, too. Here, after determining the best interests of the children, a domestic relations court had ordered that Payne was to be the children's residential parent, and to have custody of them on school days. Any interference with custody and visitation could just as easily have harmed the children's court-determined best interests as their father's right to custody. See State v. Wright , 2016-Ohio-7654, 74 N.E.3d 695, ¶ 40 (4th Dist.) ; see also State v. Hirtzinger , 124 Ohio App.3d 40, 45, 705 N.E.2d 395 (2d Dist. 1997).

{¶16} Sager also argues that the underlying facts of her criminal convictions reveal that the children were not harmed or put at risk and thus could not be victims of the offenses. See, e.g., State v. Jithoo , 10th Dist. Franklin No. 05AP-436, 2006-Ohio-4978, 2006 WL 2733696, ¶ 10 (noting that a court should examine the underlying facts of the offense in assessing eligibility for expungement when the defendant ultimately pled guilty to a lesser offense than that he was indicted for).

{¶17} In support of her contention that she did not harm the children, Sager cites to the transcript of the May 2014 jury trial in the municipal court. While two volumes of the January 2018 proceedings before the trial court memorializing Sager's second application for expungement were filed with the trial court, the May 2014 transcript was not and, therefore, is not part of our record on appeal.

{¶18} The "record on appeal" consists of three categories of documents identified in App.R. 9 : the original papers and exhibits thereto filed in the trial court; the transcript of proceedings, if any, including exhibits; and a certified copy of the docket and journal entries prepared by the clerk of ...