[Cite as In re Yoder, 2016-Ohio-7190.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN THE MATTER OF: :
JASON M. YODER CASE NO. CA2016-04-082
:
OPINION
: 10/3/2016
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2002-07-1045
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Maxwell Kinman, 423 Reading Road, Mason, Ohio 45040, for defendant-appellant
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Jason Michael Yoder, appeals a decision of the Butler
County Common Pleas Court denying his application to seal the record of his importuning
conviction.
{¶ 2} In 2002, Yoder used the Internet to solicit sex from an individual he believed to
be under the age of 16. The individual was actually a police officer posing as a minor. Yoder
later pled guilty to one count of importuning, a felony of the fifth degree, and a violation of
Butler CA2016-04-082
R.C. 2907.07(E)(2).1
{¶ 3} In 2016, Yoder filed an application to expunge the conviction, which the trial
court denied. The court found Yoder's conviction ineligible for sealing pursuant to R.C.
2953.36(F), which prohibits expungement of offenses where "the victim of the offense was
less than sixteen years of age." 2
{¶ 4} On appeal, Yoder raises one assignment of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANT WAS NOT
AN ELIGIBLE OFFENDER AS REQUIRED BY R.C. § 2953.32(C)(1)(a) FOR PURPOSES
OF SEALING A [CONVICTION].
{¶ 7} Yoder argues that the trial court erred in denying his expungement application
because R.C. 2953.36(F) only precludes expungement of offenses where there was a victim
under the age of 16. Yoder contends that the exception does not apply because the "victim"
was a police officer posing as a minor. Whether an offense is precluded from expungement
by statute is a question of law that we review de novo. State v. Futrall, 123 Ohio St.3d 498,
2009-Ohio-5590, ¶ 6-7.
{¶ 8} Expungement is a postconviction proceeding that allows qualifying convicted
individuals the ability to seal the record of their conviction. It is an "act of grace created by
the state" and thus is a privilege, not a right. Koehler v. State, 10th Dist. Franklin No. 07AP-
913, 2008-Ohio-3472, ¶ 12, 14.
{¶ 9} R.C. 2953.36 lists various offenses that are ineligible for expungement. R.C.
1. This crime is currently codified, with minor changes, at R.C. 2907.07(D)(2). All references in this decision to
the (E)(2) subsection refer to the statute as it existed at the time of Yoder's conviction.
2. The General Assembly amended R.C. 2953.36 during the pendency of this appeal and subsection (F) is now
replicated under the (A)(6) subsection.
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Butler CA2016-04-082
2953.36(F) provides ineligibility for "[c]onvictions of an offense in circumstances in which the
victim of the offense was less than sixteen years of age[.]"
{¶ 10} This court finds that the plain language of R.C. 2953.36(F) cannot be
reasonably interpreted to include the offense of importuning under R.C. 2907.07(E)(2), which
criminalizes using the Internet to solicit sex from a law enforcement officer posing as a minor.
The police officer who posed as a minor in this case was not a "victim" who was "less than
sixteen years of age."
{¶ 11} The General Assembly, unambiguously, did not include an "intended victim who
was less than sixteen years of age" within the ambit of R.C. 2953.36(F) as a nonexpungeable
offense. Moreover, the General Assembly was presumably aware of the (E)(2) subsection
because it specifically precluded all importuning convictions from expungement in 2953.36(D)
– but only for those convictions occurring after October 10, 2007.3
{¶ 12} The state cites State v. Bolden, 2nd Dist. Montgomery No. 19943, 2004-Ohio-
2315; and State v. Lobo, 12th Dist. Butler No. CA2004-03-063, 2004-Ohio-5821, in support
of its argument that this court and the Second District have previously found unimportant the
distinction between a minor victim and a police officer posing as minor victim with respect to
the sexual offender laws, i.e., R.C. Chapter 2950. Bolden and Lobo are inapposite. Both
cases dealt with plain language in the sexual offender laws that classified importuning,
regardless of subsection and victim, as a sexually oriented offense. However, the plain
language of R.C. 2953.36(F) requires the "victim" of the offense to be under 16 years of age.
{¶ 13} The state also argues that this court should interpret R.C. 2953.36(F)
consistently with the policy justification set forth in Bolden, i.e., to protect the public.
However, the sexual offender and expungement laws do not serve the same purpose. Ohio's
3. Currently R.C. 2953.36(A)(4).
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Butler CA2016-04-082
expungement laws are remedial and intended for the benefit of a limited number of convicted
individuals who wish to seal their records. The expungement laws are to be construed
liberally to serve that remedial purpose. R.C. 1.11; State ex rel. Gains v. Rossi, 86 Ohio
St.3d 620, 622 (1999); Barker v. State, 62 Ohio St.2d 35, 41-42 (1980); State v. Heaton, 108
Ohio App.3d 38, 40 (12th Dist. 1995); see also State v. Aguirre, 144 Ohio St.3d 179, 2014-
Ohio-4603, ¶ 18. Furthermore, it is the General Assembly that establishes public policy for
the state. A court of appeals, as an agency of the judicial branch of government, exceeds its
authority by adding to an unambiguous statute based on its conception of what may be good
public policy.
{¶ 14} Consequently, we reverse the decision of the trial court and remand. Because
we find Yoder's offense expungeable under R.C. 2953.32(C), on remand the trial court shall
comply with R.C. 2953.32(C)(1) and determine if Yoder is an eligible offender, whether other
criminal proceedings are pending against him, and, if Yoder is an eligible offender and no
criminal proceedings are pending against him, exercise its discretion in the weighing of the
public and private interest involved in determining whether the conviction should be sealed.
{¶ 15} Judgment reversed and remanded.
S. POWELL and HENDRICKSON, JJ., concur.
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