[Cite as State v. E.K.,
2024-Ohio-5496.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellant, : No. 24AP-183
(M.C. No. 2023 CRB 017791)
v. :
(REGULAR CALENDAR)
[E.K.], :
Defendant-Appellee. :
D E C I S I O N
Rendered on November 21, 2024
On brief: Zachary M. Klein, City Attorney, Melanie R.
Tobias-Hunter, Orly Ahroni, and Dave Pelletier, for
appellant.
On brief: E.K., pro se. Argued: E.K.
APPEAL from the Franklin County Municipal Court
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from an entry of the Franklin
County Municipal Court granting the application of defendant-appellee, E.K., pro se, for
the expungement of records pursuant to R.C. 2953.33. For the following reasons, we
reverse.
I. Facts and Procedural History
{¶ 2} On October 28, 2023, the state charged E.K. with one count of domestic
violence, in violation of R.C. 2919.25(A), a first-degree misdemeanor; and one count of
assault, in violation of R.C. 2903.13(A), a first-degree misdemeanor. The charges were filed
under the same case number. Subsequently, the charges were dismissed.
No. 24AP-183 2
{¶ 3} On January 15, 2024, E.K. filed an application requesting the trial court
expunge the record of the dismissed charges. The trial court scheduled the matter for an
April 4, 2024 hearing. Prior to the scheduled hearing date, the trial court granted E.K.’s
application for expungement in a February 12, 2024 entry. There is no record of the
proceedings before the trial court resulting in the expungement.
{¶ 4} Before the scheduled hearing date but after the trial court issued the entry
granting the application for expungement, the state filed an objection to E.K.’s application
in the trial court on February 21, 2024, arguing that R.C. 2953.33(A) did not permit
expungement of E.K.’s dismissed charge of domestic violence. Instead, the state argued,
the dismissed charge was eligible only for sealing. The state additionally argued that
because the assault charge was filed under the same case number as the domestic violence
charge, E.K.’s dismissed assault charge was also ineligible for expungement. The trial court
did not formally respond to the state’s objection.
{¶ 5} The state timely appeals the trial court’s entry granting the application for
expungement.
II. Assignments of Error
{¶ 6} The state assigns the following two assignments of error for our review:
[I.] The trial court erred when it granted Appellee’s application
to expunge the record of dismissal because dismissed charges
alleging a violation of R.C. 2919.25 are statutorily prohibited
from being expunged.
[II.] The trial court erred when it granted Appellee’s application
to expunge the record of dismissal of her assault charge
because partial expungement under the same case number is
not permitted.
III. First Assignment of Error – Dismissed Domestic Violence Charge
{¶ 7} In its first assignment of error, the state argues the trial court erred when it
granted E.K.’s application to expunge the record of dismissal of her domestic violence
charge. More specifically, the state asserts dismissed charges alleging a violation of R.C.
2919.25 are prohibited from expungement pursuant to R.C. 2953.33(A) and (C).
{¶ 8} An appellate court generally reviews a trial court’s decision on an application
for expungement for an abuse of discretion. State v. J.L., 10th Dist. No. 18AP-281, 2019-
No. 24AP-183 3
Ohio-681, ¶ 5, citing State v. D.G., 10th Dist. No. 14AP-476, 2015-Ohio-846, ¶ 6. An abuse
of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable. State
v. Darmond,
135 Ohio St.3d 343,
2013-Ohio-966, ¶ 34, citing State v. Adams,
62 Ohio St.2d
151, 157 (1980). However, where questions of law are in dispute, an appellate court reviews
the trial court’s determination de novo. State v. Pariag,
137 Ohio St.3d 81, 2013-Ohio-
4010, ¶ 9.
{¶ 9} Expungement is a statutorily created privilege, not a right. In re J.L. at ¶ 7,
citing In re Koehler, 10th Dist. No. 07AP-913, 2008-Ohio-3472, ¶ 12. Because
expungement is an “act of grace created by the state,” a court may grant an expungement
only when the applicant meets all statutory requirements for eligibility. State v. Futrall,
123 Ohio St.3d 498,
2009-Ohio-5590, ¶ 6; State v. Brewer, 10th Dist. No. 06AP-464, 2006-
Ohio-6991, ¶ 5, citing In re White, 10th Dist. No. 05AP-529,
2006-Ohio-1346, ¶ 4-5.
{¶ 10} R.C. 2953.33 sets forth when a defendant in a case where charges are
dismissed may apply for expungement. R.C. 2953.33(A)(1) provides “[a]ny person …
who is the defendant named in a dismissed complaint, indictment, or information, may
apply to the court for an order to seal or, except as provided in division (C) of this section,
expunge the person’s official records in the case.” As relevant here, R.C. 2953.33(C) states
“[a] person who is the defendant named in a dismissed complaint, indictment, or
information … is not entitled to have records of the case expunged under this section if
the case involves … [a] violation of section 2919.25 or 2919.27 of the Revised Code.” R.C.
2953.33(C)(1)(f).
{¶ 11} There is no dispute E.K. was charged with one count of domestic violence in
violation of R.C. 2919.25, that the charge was ultimately dismissed, and that E.K. filed her
application seeking expungement under R.C. 2953.33. The state argues that because R.C.
2953.33 specifically prohibits a defendant named in a dismissed complaint alleging a
violation of R.C. 2919.25 from being entitled to have the records of the case expunged, the
trial court erred in granting E.K.’s application. E.K. responds that the statute does not
render her ineligible for expungement because the statute prohibits expungement only for
“a violation of section 2919.25.” (Emphasis added.) R.C. 2953.33(C)(1)(f). Since the
domestic violence charge against her was dismissed, E.K. argues the case cannot be deemed
to involve a “violation” of R.C. 2919.25. Instead, E.K. asserts that the only way for a
No. 24AP-183 4
“violation” of R.C. 2919.25 to occur is for a defendant to be found guilty of R.C. 2919.25.
E.K. reasons that the dismissal of her domestic violence charge necessarily precludes her
from the category of defendants prohibited from seeking expungement under R.C.
2953.33(C).
{¶ 12} Statutory interpretation is a question of law subject to de novo appellate
review. State v. Banks, 10th Dist. No. 11AP-69, 2011-Ohio-4252, ¶ 13. A court’s duty is to
give effect to the words used in a statute, not to delete or insert words. State v. Maxwell,
95 Ohio St.3d 254,
2002-Ohio-2121, ¶ 10. “Where the language of a statute is plain and
unambiguous and conveys a clear and definite meaning there is no occasion for resorting
to rules of statutory interpretation. An unambiguous statue is to be applied, not
interpreted.” Sears v. Weimer,
143 Ohio St. 312 (1944), paragraph five of the syllabus.
“Only when a definitive meaning proves elusive should rules for construing ambiguous
language be employed. Otherwise, allegations of ambiguity become self-fulfilling.” State
v. Porterfield,
106 Ohio St.3d 5,
2005-Ohio-3095, ¶ 11. Ambiguity exists only if the
language of a statute is susceptible of more than one reasonable interpretation. State ex
rel. Toledo Edison Co. v. Clyde,
76 Ohio St.3d 508, 513 (1996).
{¶ 13} Through her argument, E.K. improperly isolates the word “violation” from its
context and ignores the plain language of the statute. State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1,
2005-Ohio-5362, ¶ 40 (to discern
legislative intent, a court first considers the statutory language, “reading words and phrases
in context and construing them in accordance with rules of grammar and common usage”).
Additionally, to accept E.K.’s position that she cannot be deemed to fall within R.C.
2953.33(C)(1)(f) because she was not convicted of violating R.C. 2919.25 would require this
court to ignore the plain language of the statute directing that expungement is not available
to a defendant named in a dismissed complaint that involves a violation of R.C. 2919.25.
Hulsmeyer v. Hospice of Southwest Ohio, Inc.,
142 Ohio St.3d 236,
2014-Ohio-5511, ¶ 23
(“court[s] must give effect to the words used, making neither additions nor deletions from
words chosen by the General Assembly”). E.K.’s reading of the statute also ignores the
ordinary meaning of the terms “complaint,” “indictment,” and “information,” as those are
mechanisms for instituting criminal proceedings by stating a violation of a criminal statute
No. 24AP-183 5
and necessarily always predate a conviction. Accordingly, we reject E.K.’s unreasonable
reading of the statute.
{¶ 14} Instead, we agree with the state that the meaning of R.C. 2953.33 is clear and
unambiguous, and we must apply the statute according to its terms rather than interpret it.
In re Certificate of Need Application for Project “Livingston Villa,” Cuyahoga Cty., 10th
Dist. No. 15AP-1146, 2017-Ohio-196, ¶ 38 (when a statute’s meaning is “clear, unequivocal,
and definite, then statutory interpretation ends, and the court applies the statute according
to its terms”), citing Hubbell v. Xenia,
115 Ohio St.3d 77,
2007-Ohio-4893, ¶ 11. R.C.
2953.33(A) plainly provides expungement is available to a defendant in a dismissed
complaint except as provided in R.C. 2953.33(C). In turn, R.C. 2953.33(C)(1)(f), by its plain
and unambiguous terms, prohibits the expungement of records of dismissal where the
dismissed complaint, indictment, or information involves a violation of R.C. 2919.25. Thus,
because E.K.’s dismissed complaint involves a violation of R.C. 2919.25, E.K. is not entitled,
pursuant to the plain terms of R.C. 2953.33, to have the records of her dismissed complaint
expunged.
{¶ 15} Despite the statutory framework, E.K. asserts there is no legitimate public
policy interest to be served by preventing her from expunging the records of a dismissed
complaint. Though E.K. disagrees with the consequences resulting from application of the
statute, we are nonetheless constrained by the plain language of R.C. 2953.33. See State v.
G.K., 169 Ohio St.3d 266,
2022-Ohio-2858, ¶ 32 (“[w]e rely on what the General Assembly
has written when statutory language is unambiguous, as the legislature is the ultimate
arbiter of public policy,” but “[j]ust as it is up to the legislature to make policy judgments
with regard to sealing records of convictions, it is also within its purview to consider
removing the barrier to sealing records of dismissed charges”) (O’Connor, J., concurring).
Because E.K. is not eligible to have the records of the dismissed charge of a violation of R.C.
2919.25 expunged under the plain language of R.C. 2953.33, the trial court erred in granting
her application for expungement of the records of the dismissed domestic violence charge.
{¶ 16} For these reasons, we sustain the state’s first assignment of error.
No. 24AP-183 6
IV. Second Assignment of Error – Dismissed Assault Charge
{¶ 17} In its second and final assignment of error, the state argues the trial court
additionally erred in granting E.K.’s application for expungement of the records of her
dismissed assault charge. Unlike the dismissed charge of domestic violence, the plain
language of R.C. 2953.33 does not prohibit a defendant named in a dismissed complaint,
indictment, or information stating a violation of R.C. 2903.13 from seeking expungement
of the records of the dismissed charge of assault. Nonetheless, the state asserts the trial
court erred in granting the application for expungement with respect to the dismissed
assault charge because both the dismissed domestic violence charge and the dismissed
assault charge were docketed under the same case number.
{¶ 18} The Supreme Court of Ohio has held that “when an applicant with multiple
convictions under one case number moves to seal his or her criminal record in that case
pursuant to R.C. 2953.32 and one of those convictions is statutorily exempt from sealing
pursuant to R.C. 2953.36, the trial court may not seal the remaining convictions.” Futrall
at ¶ 15. Although Futrall involved convictions rather than dismissed charges, this court
later found “Futrall’s holding equally applicable to the records of dismissed charges.” In re
K.J., 10th Dist. No. 13AP-1050,
2014-Ohio-3472, ¶ 31 (discussing applicability of Futrall to
sealing of records of dismissed charges under former R.C. 2953.52, now renumbered as
R.C. 2953.33, and concluding the statute “demonstrate[s] the General Assembly’s intent to
authorize the sealing of cases, and not the sealing of individual charges within a case”),
citing
Futrall at ¶ 20.
{¶ 19} Following In re K.J. and Futrall, because the dismissed domestic violence
charge and the dismissed assault charge were filed under the same case number, and
because the dismissed domestic violence charge was statutorily ineligible for expungement,
the trial court cannot expunge the record of the case. In re K.J. at ¶ 31; R.C. 2953.33(A)
(“the defendant named in a dismissed complaint, indictment, or information, may apply to
the court for an order to seal or, except as provided in division (C) of this section, expunge
the person’s official records in the case”). (Emphasis added.) Thus, we agree with the state
the trial court erred in granting the application for expungement of the dismissed assault
charge.
{¶ 20} We sustain the state’s second and final assignment of error.
No. 24AP-183 7
V. Disposition
{¶ 21} Based on the foregoing reasons, the trial court erred in granting E.K.’s
application for expungement pursuant to R.C. 2953.33 because the dismissed charge of
domestic violence was statutorily ineligible for expungement and the dismissed assault
charge was filed under the same case number as the dismissed domestic violence charge.
Having sustained the state’s two assignments of error, we reverse the judgment of the
Franklin County Municipal Court and remand the matter to that court for further
proceedings consistent with this decision.
Judgment reversed;
cause remanded.
MENTEL, P.J., and EDELSTEIN, J., concur.
