State v. WidenerState v. Widener
- Reporters:
- ,
- Before:
- Froelich, Fain, Donovan
FROELICH, P.J.
{¶ 1} The State appeals from a judgment of the Miami County Court of
{¶ 2} Widener, a teacher, was accused of having sexually explicit electronic cоnversations and sexual contact with a minor student, and he was charged with importuning. In March 2009, Widener was found guilty in the Juvenile Division of the Miami County Court of Common Pleas, on his guilty plea, of contributing to the delinquency of a child in violation of
{¶ 3} In April 2013, Widener filed an application to seal the record of his conviction. The State opposed the application. The parties did not dispute that Widener had completed his sentence and that no criminal proceedings were pending against him, and the trial court found that he had been rehabilitated to its satisfaction. The only disputеd issue was whether Widener was eligible to have the record sealed. On July 29, 2013, the trial court granted Widener‘s application to seal the record of his conviction.
{¶ 4} The State appeals, raising one assignment of error.
THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE‘S APPLICATION TO SEAL THE RECORD FOR HIS ADULT CONVICTION OF CONTRIBUTING TO THE DELINQUENCY OF A CHILD BECAUSE SUCH A CONVICTION IS NOT ELIGIBLE FOR SEALING.
{¶ 6}
{¶ 7} “The аpplicant must meet the statutory eligibility criteria in order to invoke the court‘s jurisdiction to expunge a conviction; the state bears no burden other than, when appropriate, to object to аn application. State v. Menzie, Franklin App. No. 06AP-384, 2009-Ohio-6990, ¶ 7. Applicants whose conviction falls within any category of
{¶ 8} The trial court‘s preliminary determination as to whether the statutory eligibility requirements for sealing a conviction apply is a question of law that this court reviews de novo. M.R. at ¶ 15; State v. Talameh, 11th Dist. Portage No. 2011-P-74, 2012-Ohio-4205, ¶ 20. After it has properly determined that a conviction is eligible to be
{¶ 9}
(E) Convictions on or after October 10, 2007, under section
2907.08 ,2907.09 ,2907.21 ,2907.22 ,2907.23 ,2907.31 ,2907.311 ,2907.32 , or2907.33 of the Revised Code when the victim of the offense was under eighteen years of age;(F) Convictions of an offense in circumstances in which the victim of the offense was under eighteen years of age when the offense is a misdemeanor of the first degrеe or a felony, * * *.
Widener‘s offense of contributing to the delinquency of a child (
{¶ 10} The trial court interpreted
The legislative intent of the [2007] amendment to
R.C. 2953.36 , specifically paragraph (E), was to except specific crimes from expungement when the victim was under the age of 18 by listing them in the statute. Absent from that list is the crime of contributing to the delinquency of a child. Thecontributing statute by its very nature requires the victim to be under the age of 18. So why then does it not appear under R.C. 2953.36(E) ? The answer to this court is that the legislature did not intend to except it from the sealing рrocess * * *.
The court also referenced the rule of “ejusdem generis,” stating that the listing of specific statutory exceptions in subsection (E) led the court to conclude that the general exceрtion set forth in subsection (F) did not apply to the same general class of offenses. The court further concluded that the interpretation advocated by the State would frequently result in the inability to seal сases in situations where it would be “against public policy” (such as in the prosecution of parents or store owners for contributing or an assault by an 18-year-old on a 16- or 17-year old) and that, in the case оf a child-defendant, such a rule is “not in the best interest of the adjudicated child.” Although the court did not expressly find any ambiguity in the statute, it stated that it relied on “the totality of the circumstances” in finding that the State‘s argument wаs “flawed.”
{¶ 11} The State contends that there is no ambiguity in
{¶ 12} Widener argues that, “[w]hen read together, Subsections (F) and (E) are ambiguous as to which provision, if either, apply [sic] to Ohio‘s contributing [to thе delinquency of a child] statute.” Specifically, Widener claims that, because, by definition, all victims of the offense he committed are minors, the legislature would have included that offense in subsection (E) if it had intеnded to prohibit the sealing of such convictions.
{¶ 13} The legislature clearly intended that more than one of the subsections apply to offenses involving minor victims, as subsections (E) and (F) both expressly apply tо this category of victim. We find no basis in the statutory language for Widener‘s argument or the court‘s conclusion that all of the offenses involving minors to which the expungement exclusion was intended to apply were (or must have been) listed in subsection (E). The offenses listed in subsection (E) are all in Chapter 2907, entitled “Sex Offenses,” and their penalties range from second degree felonies to fourth degree misdemeanors. This rеflects a legislative decision not to allow sealing of those specific offenses, regardless of the degree of the offense. Contributing, on the other hand, is always a first degree misdemeanor and mаy or may not involve a “sex offense.” A reasonable interpretation of the statute would be that
{¶ 14} Other appellate courts have addressed similar issues. In M.R., 8th Dist. Cuyahoga No. 94591, 2010-Ohio-6025, the defendant had taken a picture of his three-year-old after a bath and had shown it to others. He pled guilty to five counts of attempted pandering of obscenity. The State оbjected to the defendant‘s subsequent motion to seal his record, relying on
{¶ 15} In Ninness, 6th Dist. Ottawa No. OT-11-024, 2013-Ohio-974, the Sixth District addressed whether a conviction for child endangering (a first degree misdemeanor in violation of
{¶ 16} Widener argues that the offense of which he was convicted, contributing to
{¶ 17} Even if we were to agree with Widener‘s premise that contributing to the delinquency of a child could have been included in the list of offenses set forth in
{¶ 18} Because the language of
{¶ 20} The judgment of the trial court will be reversed.