State v. Sager , 2019 Ohio 135 ( 2019 )

[Cite as State v. Sager, 2019-Ohio-135.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NOS. C-180051
C-180052
Plaintiff-Appellee, : TRIAL NOS. C-13CRB-9584A
C-13CRB-9584B
vs. :
LAKYSHA SAGER, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
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.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , 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:
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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
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OHIO FIRST DISTRICT COURT OF APPEALS
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, ¶ 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
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OHIO FIRST DISTRICT COURT OF APPEALS
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
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OHIO FIRST DISTRICT COURT OF APPEALS
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, ¶ 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 the trial court. App.R. 9(A)(1).
{¶19} When an appellant relies upon facts shown in a transcript of
proceedings, the duty to provide that transcript necessarily falls upon the appellant.
See Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
Under App.R. 9(B), this duty includes the obligation to order a transcript of any
“proceedings [she] considers necessary for inclusion in the record,” and to ensure
that the transcript of the proceedings required by App.R. 9(B)(6) is “filed with the
clerk of the trial court under App.R. 10(A).”
{¶20} An examination of the record transmitted for review reveals that the
May 2014 transcript was never filed in the trial court under the cases numbered C-
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OHIO FIRST DISTRICT COURT OF APPEALS
13CRB-9584A and C-13CRB-9584B. It was not listed in the certified copy of the
docket and journal entries prepared by the clerk of the trial court. And, it was not
physically part of the record transmitted for our review.
{¶21} In her appellate brief, Sager states that the May 2014 transcript was
filed in her earlier appeal numbered C-160664, and urges us to review its contents to
resolve her assignment of error. Again, we note that transcript was never filed in the
trial court in these matters and thus is not part of our record on appeal. See Morgan
v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13 (declaring, as “a
bedrock principle of appellate practice in Ohio[,] * * * that an appeals court is limited
to the record of the proceedings” before the court below). A reviewing court cannot
add matter to the record before it and then decide the appeal on that basis. See State
v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), syllabus. Therefore, we do not
consider the May 2014 transcript in resolving the assignment of error. See State v.
Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604, 936 N.E.2d 1030, ¶ 4 (1st Dist.).
Moreover, the facts that Sager urges us to conclude from the May 2014 transcript are
not the type of facts, “not subject to reasonable dispute” and “capable of accurate and
ready determination,” cognizable by judicial notice. See Evid.R. 201(B). At best,
Sager’s unsupported contention that the children were not harmed or put at risk is
an argument in mitigation of her culpability more properly made at sentencing and
not in an application for the sealing of records of conviction where the statutory
requirements must be fully complied with. See Hill, 2016-Ohio-1551, 63 N.E.3d 690,
at ¶ 8.
{¶22} Sager next argues that this court already, albeit indirectly, answered
the question of who is the victim of an interference-with-custody offense when we
referred to the father of a minor taken out of state by the defendant as “the victim” of
the offense in State v. Robinson, 146 Ohio App.3d 344, 766 N.E.2d 186 (1st
Dist.2001). Sager supports her contention by quoting a passage stating that a
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“condition of probation which required defendant to stay away from [the parent]
victim and his family even after victim’s daughter turned 18 years old was an abuse
of discretion.” (Emphasis added.) But that quotation is not taken from the opinion of
this court; it is from the synopsis of the case prepared by the editors of the North
Eastern Reporter, 2d Series. The quoted material appeared nowhere in our opinion.
The synopsis was not approved by this court and serves only as a researching and
indexing aid. See Parkview Hosp. v. Hosp. Serv. Assn. of Toledo, 8 Ohio App.2d
315, 222 N.E.2d 314 (10th Dist.1966).
{¶23} In Robinson, we did not determine whether the minor daughter or her
father was the victim of the interference-with-custody offense. But other courts,
while not answering our question directly, have referred to the minor children as
victims of interfering-with-custody offenses.
{¶24} For example, in State v. Cornelius, the Second District Court of
Appeals held that to prove a violation of R.C. 2919.23(A)(1), the state was required to
prove that the mentally or physically handicapped “child victim of the offense” was
under 21 years of age and subject to rights conferred by law on “the victim’s parent,
guardian, or custodian,” and that the offender enticed, took, kept, or harbored “the
victim from the victim’s parent, guardian, or custodian.” (Emphasis added.) State v.
Cornelius, 2d Dist. Miami No. 10CA10, 2011-Ohio-2564, ¶ 18; see State v. Villamor-
Goubeaux, 2016-Ohio-7420, 72 N.E.3d 1185, ¶ 24 (2d Dist.); State v. Hess, 5th Dist.
Delaware No. 77-CA-1, 1977 WL 200776, *1 (May 13, 1977) (holding that it was
“uncontroverted” that “the victim” of the interference-with-custody offense was a 12-
year-old female with whom the defendant spent a weekend traveling to Kentucky);
State v. Kincer, 12th Dist. Clermont No. CA2005-07-059, 2006-Ohio-2249, ¶ 10 (a
15-year-old child taken to Kentucky by the defendant was the victim of the
interference-with-custody offense for purposes of a community-control revocation).
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IV. Statutory Interpretation
{¶25} While the text of R.C. 2919.23 does not define who is “the victim” of
the proscribed conduct, other provisions of the Revised Code, when read in pari
materia, make it clear that a child enticed, taken, kept, or harbored is a victim of an
interfering-with-custody offense.
{¶26} In interpreting a statute, a court’s principal concern is the legislative
intent in enacting the statute. In order to determine that intent, a court must first look
at the words of the statute itself. See Carnes v. Kemp, 104 Ohio St.3d 629, 2004-Ohio-
7107, 821 N.E.2d 180, ¶ 16. Here, the text of R.C. 2919.23 does not define who is “the
victim” of the proscribed conduct. Nonetheless R.C. 2919.23 “provides an
ascertainable standard of guilt and gives notice as to precisely what conduct is
criminally proscribed.” State v. Harris, 1st Dist. Hamilton No. 15978, 1983 WL
5276, *2 (Oct. 26, 1983) (holding R.C. 2919.23 to be facially constitutional).
{¶27} Courts should construe statutory provisions together and read the
Revised Code “as an interrelated body of law.” State v. Moaning, 76 Ohio St.3d 126,
128, 666 N.E.2d 1115 (1996). Statutes that relate to the same subject matter or refer to
one another may be construed in pari materia, that is, they may be construed together
so that inconsistencies in one statute may be resolved by looking at another statute
on a similar topic. See State ex rel. Choices for South-Western City Schools v.
Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 46.
{¶28} At least three other provisions of the Revised Code relate to the same
subject matter at issue—defining a child victim—and, referring to one another, may
be construed together and read in pari materia.
{¶29} R.C. 2307.50 creates a civil action for depriving an adult of his or her
parental interest in a minor. See Giambrone v. Berger, 57 Ohio App.3d 38, 39, 566
N.E.2d 711 (1st Dist.1989). A parent may maintain a civil action to recover damages
for interference with parental interest “if [the] minor is a victim of a child stealing
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OHIO FIRST DISTRICT COURT OF APPEALS
crime,” and as a result of that crime the parent is deprived of a parental or
guardianship interest in the minor. (Emphasis added.) R.C. 2307.50(B). The
statute provides that a “ ‘[c]hild stealing crime’ means a violation of sections 2905.01
[kidnapping], 2905.02 [abduction], 2905.03 [unlawful restraint], and 2919.23
[interference with custody] of the Revised Code or section 2905.04 [child stealing] of
the Revised Code as it existed prior to the effective date of this amendment.” R.C.
2307.50(A)(1).
{¶30} R.C. 2901.30 identifies actions that police officers must take when
confronted with reports of a missing child. For purposes of that section, R.C.
2901.30(A)(3)(b) defines a missing child as a minor who is missing and about whom
there is reason to believe the minor could be “the victim of a violation of”
interference with custody under R.C. 2919.23 and the same list of serious abduction
offenses identified in R.C. 2307.50(A)(1).
{¶31} Finally, for purposes of the victim-rights provisions of the Revised
Code, R.C. 2930.01(H)(1) defines “victim” as a person who is identified as the victim
of a crime in a police report or in a complaint, indictment, or information that
charges the commission of a crime. We note that the definition of victim here is
specific to R.C. Chapter 2930. See State v. Ritchie, 174 Ohio App.3d 582, 2007-
Ohio-6577, 883 N.E.2d 1092, ¶ 23 (5th Dist.). But for purposes of construing other
code provisions in pari materia, the legislature’s intent to identify the victim of an
offense as one named in the indictment is instructive.
{¶32} Moreover, in determining the intention of the legislature, a court may
consider among other matters the “object sought to be attained,” and “laws upon the
same or similar subjects.” R.C. 1.49. The General Assembly’s inclusion, in R.C.
2307.50(A)(1) and 2901.30, of interference with custody in a list of other serious
offenses where the victim of the offense is clearly the person abducted is further
evidence that the legislature intended the child taken or held to be a victim under
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R.C. 2919.23. Finally, we have previously held that in other “offenses against the
family,” defined, like interference with custody, in R.C. Chapter 2919, a minor child
can be a victim of an offense, preventing the sealing of records of conviction. See
State v. Westendorf, 1st Dist. Hamilton No. C-020114, 2003-Ohio-1019, ¶ 3 (holding
that in nonsupport cases under R.C. 2919.21, the victim of the offenses is the child).
{¶33} Therefore, we hold that in a prosecution under R.C. 2919.23(A)(1), the
minor enticed, taken, kept, or harbored is a victim of the offense.
V. Conclusion
{¶34} Here, only Sager’s two minor children were identified in the
indictment. Their father, the custodial parent, was not. There is no factual dispute
as to the age of the children taken. See Hill, 2016-Ohio-1551, 63 N.E.3d 690, at ¶ 11.
They were both below the threshold ages identified in R.C. 2919.23(A)(1) and
2953.36(A)(6).
{¶35} Since the only facts discernable from our record reveal that, following
a jury trial, Sager was convicted of enticing, taking, keeping, or harboring her nine-
and 11-year-old children, that the children were victims of the offenses, and that the
offenses were punishable as first-degree misdemeanors, R.C. 2953.36(A)(6) clearly
and unambiguously precludes sealing the records of the convictions. Therefore, the
trial court had no jurisdiction to grant Sager’s second application to seal her records
of conviction, and properly refused to do so. See Westendorf, 1st Dist. Hamilton No.
C-020114, 2003-Ohio-1019, at ¶ 4. The assignment of error is overruled.
{¶36} The judgments of the trial court are affirmed.
Judgments affirmed.
ZAYAS and MYERS, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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