[Cite as Doss v. State, 2011-Ohio-6429.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96452
IRAN DOSS
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-665993
BEFORE: E. Gallagher, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: December 15, 2011
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ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
By: John F. Manley
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
Mike DeWine
Ohio Attorney General
By: Richard Cholar, Jr.
Assistant Attorney General
Corrections Litigation Section
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215
EILEEN A. GALLAGHER, J.:
{¶ 1} Appellant, the state of Ohio, appeals from the decision of the Cuyahoga
County Court of Common Pleas granting summary judgment in favor of appellee. For
the following reasons, we affirm the judgment of the trial court.
{¶ 2} Appellee was indicted on April 22, 2005, for two counts of rape in violation
of R.C. 2907.02(A)(1)(c) and one count of kidnapping with a sexual motivation in
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violation of R.C. 2905.01(A)(2) and (4) and R.C. 2941.147 stemming from events that
allegedly occurred on the night of December 31, 2004. On March 27, 2006, a jury found
appellee guilty of one count of rape and one count of kidnapping and appellee was
sentenced to four years in prison.
{¶ 3} On appeal in State v. Doss, Cuyahoga App. No. 88443, 2008-Ohio-449
(“Doss I”), this court found that the record contained insufficient evidence to sustain
appellee’s convictions. We vacated those convictions and ordered him to be discharged
from prison.
{¶ 4} On July 25, 2008, appellee filed a declaratory judgment action in the
Cuyahoga County Court of Common Pleas seeking a determination that he had been a
wrongfully imprisoned person as defined by R.C. 2305.02 and 2743.48. On July 2,
2010, appellee filed a motion for summary judgment relying solely on this court’s
decision in Doss I. The state, relying on the transcripts from appellee’s criminal trial,
opposed appellee’s motion for summary judgment arguing that appellee had failed to
establish his innocence by a preponderance of the evidence.
{¶ 5} On January 26, 2011, the trial court granted appellee’s motion for summary
judgment on the basis of our holding in Doss I. Specifically, the trial court stated, “[t]he
court of appeals’ decision to reverse and vacate [appellee’s] conviction and order his
immediate release can only be interpreted to mean that either [appellee] was innocent of
the charges upon which he was convicted, or that no crime was committed by [appellee],
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or both.” The state brought the present appeal, advancing the following sole assignment
of error:
“The trial court erred in granting appellee’s motion for summary judgment when it
held that the vacation of his criminal conviction on appeal could only mean actual
innocence or that no crime was committed.”
{¶ 6} Our review of a trial court’s grant of summary judgment is de novo.
Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Pursuant
to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of
material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)
reasonable minds can come to but one conclusion and that conclusion is adverse to the
nonmoving party, said party being entitled to have the evidence construed most strongly
in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d
1196, paragraph three of the syllabus; Zivich v. Mentor Soccer Club (1998), 82 Ohio
St.3d 367, 369-370, 696 N.E.2d 201. The party moving for summary judgment bears the
burden of showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662
N.E.2d 264.
{¶ 7} “The Ohio Revised Code provides a two-step process whereby a person
claiming wrongful imprisonment may sue the State for damages incurred due to the
alleged wrongful imprisonment.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 72,
1998-Ohio-275, 701 N.E.2d 1002, citing Walden v. State (1989), 47 Ohio St.3d 47, 547
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N.E.2d 962. The first action, in the common pleas court, seeks a preliminary factual
determination of wrongful imprisonment. Id. The second action, in the Court of
Claims, provides for damages. Id.
{¶ 8} A “wrongfully imprisoned individual” is defined in R.C. 2743.48(A) as an
individual who satisfies each of the following requirements:
“(1) The individual was charged with a violation of a section of the Revised Code
by an indictment or information prior to, or on or after, September 24, 1986, and
the violation charged was an aggravated felony or felony.
“(2) The individual was found guilty of, but did not plead guilty to, the particular
charge or a lesser-included offense by the court or jury involved, and the offense
of which the individual was found guilty was an aggravated felony or felony.
“(3) The individual was sentenced to an indefinite or definite term of
imprisonment in a state correctional institution for the offense of which the
individual was found guilty.
“(4) The individual’s conviction was vacated or was dismissed, or reversed on
appeal, the prosecuting attorney in the case cannot or will not seek any further
appeal of right or upon leave of court, and no criminal proceeding is pending, can
be brought, or will be brought by any prosecuting attorney, city director of law,
village solicitor, or other chief legal officer of a municipal corporation against the
individual for any act associated with that conviction.
“(5) Subsequent to sentencing and during or subsequent to imprisonment, an error
in procedure resulted in the individual’s release, or it was determined by a court of
common pleas that the offense of which the individual was found guilty, including
all lesser-included offenses, either was not committed by the individual or was not
committed by any person.”
{¶ 9} In a wrongful imprisonment claim, the petitioner bears the burden of
proving by a preponderance of the evidence, his or her innocence. Jones v. State,
Cuyahoga App. No. 96184, 2011-Ohio-3075, at ¶9, citing Suster, 84 Ohio St.3d at 72.
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In the present instance, the state argues that appellee, by relying solely on this court’s
decision in Doss I, has failed to establish his innocence by a preponderance of the
evidence.
{¶ 10} This court has previously stated that “[e]vidence insufficient to prove guilt
beyond a reasonable doubt does not necessarily prove innocence by a preponderance of
the evidence as required by R.C. 2743.48.” Id. at ¶11, citing Ratcliff v. State (1994), 94
Ohio App.3d 179, 640 N.E.2d 560. While we are mindful that a criminal insufficient
evidence finding does not necessarily lead to the conclusion that a defendant’s innocence
has been established by a preponderance of the evidence, we find that the uncontroverted
evidence in the record sub judice mandates that we affirm the trial court’s grant of
summary judgment.
{¶ 11} As the trial court noted in its January 26, 2011 journal entry, the only
contested issue before the court was appellee’s innocence under R.C. 2743.48(A)(5).
None of the other elements under R.C. 2743.48(A) were disputed before the trial court.
{¶ 12} The sole evidence before the trial court on summary judgment consisted of
trial transcripts from appellee’s criminal trial.1 This court previously reviewed this
evidence in State v. Doss, Cuyahoga App. No. 88443, 2008-Ohio-449, and concluded not
1 The state of Ohio’s brief in opposition to plaintiff’s motion for summary
judgment references allegations made by the alleged victim in an amended
complaint from her civil suit against appellee. However, contrary to statements on
page 4 of the state’s brief, certified copies of this referenced amended complaint are
not attached to the state’s brief and not before the trial court on summary
judgment.
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only that the evidence was insufficient to sustain appellee’s convictions but that
appellee’s own statement describing the events was uncontradicted evidence in his favor
on elements of both the kidnapping and rape charges.
{¶ 13} With respect to appellee’s conviction for kidnapping in violation of R.C.
2905.01(A)(2) and (4), this court, in reviewing the record, stated “no evidence was
presented showing force, threat, deception, or the restraint of liberty.” Id. at ¶10.
“Nobody testified that [the alleged victim] went with [appellee] against her will, or that
[appellee] restrained her in any way.” Id. at ¶10. This court explicitly stated,
“[appellee’s] statement maintained that the ride home, as well as the sex, was consensual.
No evidence contradicts, or even questions, this.” Id. at ¶10.
{¶ 14} With respect to appellee’s conviction for rape in violation of R.C.
2907.02(A)(1)(c), this court noted the challenge of distinguishing permissible sexual
conduct with a person who is merely intoxicated from impermissible sexual conduct with
someone who is substantially impaired. Id. at ¶18.
{¶ 15} We noted that “[t]he only evidence in the record of events happening
between 2:30 and 8:00 a.m. on New Year’s Day is [appellee’s] statement.” Id. at ¶23.
After reviewing the evidence in the record, this court stated, “[t]he only evidence about
[the alleged victim’s] mental condition at the time of the alleged rape is found in
[appellee’s] statement. A careful review of this statement reveals no evidence that
[appellee] knew, or should have known, that J.P.’s ‘ability to resist or consent is
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substantially impaired because of voluntary intoxication.’” Id. at ¶23. We noted that
“the state presented no evidence in opposition to appellee’s statement.” Id. at ¶20.
{¶ 16} This court concluded, “[t]he evidence shows that [appellee] had consensual
sex with a woman who had been drinking alcohol, albeit while his girlfriend was in the
other room. [Appellee] gave a detailed description of [the alleged victim’s] consensual
conversation with him, and [her] not only being aware, but being in control, of her
actions. From all accounts, and as strange as this ‘good Samaritan’ scenario may seem,
[her] decision to go home and sleep with [appellee] was just as voluntary as her
intoxication on New Year’s Eve.” Id. at ¶25.
{¶ 17} Based upon the unique circumstances presented in this case, specifically the
uncontradicted evidence in the form of appellee’s own statement recounting the events
of the night in question, and the fact that the state introduced no further evidence beyond
the criminal record discussed above, we find no error in the trial court’s conclusion that
the state of Ohio failed to raise a genuine issue of fact in regards to any of the elements
under R.C. 2743.48(A).
{¶ 18} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said lower court to carry this
judgment into execution.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
LARRY A. JONES, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTING WITH
SEPARATE OPINION
FRANK D. CELEBREZZE, JR., P.J., DISSENTING:
{¶ 19} I respectfully dissent because Doss has not demonstrated that he is entitled
to judgment as a matter of law.
{¶ 20} In his two-page motion for summary judgment, Doss only points to the
decision of this court reversing his convictions. The Ohio Supreme Court has instructed
that “a previous finding of not guilty is not sufficient to establish innocence. The
petitioner seeking to establish a claim for wrongful imprisonment must produce more
evidence than a judgment of acquittal, which is merely a judicial finding that the state did
not prove its case beyond a reasonable doubt.” Ellis v. State, 64 Ohio St.3d 391, 393,
1992-Ohio-25, 596 N.E.2d 428, 430. The petitioner carries the burden of proof in
affirmatively establishing his or her innocence under R.C. 2743.48(A)(5). State ex rel.
Jones v. Suster, 84 Ohio St.3d 70, 72, 1998-Ohio-275, 701 N.E.2d 1002.
{¶ 21} The differing burdens of proof are key to distinguishing why a vacation of
Doss’s conviction does not prove his innocense. Our holding in Doss I does not mean
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that Doss is innocent — merely that, based upon the evidence the state presented, Doss’s
guilt could not be established beyond a reasonable doubt. The same cannot
automatically be said of whether Doss can show by a preponderance of the evidence that
he did not know or reasonably should not have known of the victim’s incapacity.
Ratcliff v. State (1994), 94 Ohio App.3d 179, 182, 640 N.E.2d 560 (“[A]n appellate
court’s reversal of a criminal conviction does not require a court to find that the claimant
was not engaging in criminal conduct at the time in question. Evidence insufficient to
prove guilt beyond a reasonable doubt does not necessarily prove innocence by a
preponderance of the evidence.”).
{¶ 22} This is not a case where the evidence is so clear that Doss can be found to
be innocent solely on this court’s prior opinion, especially, as the dissenting opinion
points out, where “[a]t least to some eyewitnesses, the victim was displaying signs of
being too intoxicated to perform ordinary functions” and “[t]he majority opinion is full of
instances illustrating the victim’s overtly high level of intoxication.” Doss I at ¶30,
(Sweeney, J., dissenting).