Doss v. State 135 OHIO ST. 3D 211, 2012-OHIO-5678, 985 N.E.2D 1229 DECIDED DECEMBER 6, 2012

Doss v. State 135 OHIO ST. 3D 211, 2012-OHIO-5678, 985 N.E.2D 1229 DECIDED DECEMBER 6, 2012 I. INTRODUCTION In Doss v. State, 1 the Supreme Court of Ohio decided whether an appellate decision vacating a man s conviction for rape and kidnapping was sufficient to establish that he was a wrongfully imprisoned individual under section 2743.48 of the Ohio Revised Code ( ORC ). 2 Section 2743.48 provides a remedy, in the form of compensatory damages, for persons who are convicted of a felony and imprisoned and whose convictions are vacated, dismissed, or reversed. 3 The court also grappled with whether the claimant bears the burden of proving his innocence by a preponderance of the evidence and if that standard is met when the State is unable to prove guilt beyond a reasonable doubt at trial. 4 The Supreme Court of Ohio held that an appellate decision may not establish actual innocence under ORC 2743.48 because it is insufficient to show that the claimant was innocent by a preponderance of the evidence. 5 The appellate court s decision proved only that the state was unsuccessful in proving guilt beyond a reasonable doubt. 6 The prevalence of wrongfully imprisoned individuals is indicative of a serious problem in the criminal justice system. 7 That the Ohio General Assembly sought to address this problem and, through compensation statutes, attempt to provide a remedy is important. However, it is appropriate and reasonable to have further discussion on the subject. 1. 135 Ohio St. 3d 211, 2012-Ohio-5678, 985 N.E.2d 1229 (2012). 2. See id. at 211, 2012-Ohio-5678 1, 985 N.E.2d at 1230. 3. OHIO REV. CODE ANN. 2743.48(A) (West 2012). 4. Doss v. State, 135 Ohio St. 3d at 213, 2012-Ohio-5678 9, 985 N.E.2d at 1231-32. 5. Id. at 218, 2012-Ohio-5678 22, 985 N.E.2d at 1235. 6. See id., 2012-Ohio-5678 22, 985 N.E.2d at 1235. 7. Daniel S. Kahn, Presumed Guilty Until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims Under State Compensation Statutes, 44 U. MICH. J.L. REFORM 123, 126-27 (2010). 1093

1094 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. The Conviction of Iran Doss Iran Doss was convicted in 2006 by a jury on one count of kidnapping and one count of rape. 8 Most importantly, the jury found that the alleged victim s capacity to consent was substantially impaired and that Doss knew (or had reason to know) of the substantial impairment. 9 Following his conviction, Doss was sentenced to four years in prison, ordered to pay a fine plus restitution, and was labeled a sexually oriented offender. 10 B. Doss I Doss appealed his conviction to the Eighth District Court of Appeals, arguing seven assignments of error. 11 He argued, relevant to his appeal for compensation under ORC 2743.48, that there was insufficient evidence of the alleged victim s capacity to consent and, therefore, his rape conviction should be overturned. 12 The Eighth District disagreed and, in a split decision, found that [a] rational trier of fact could have found the essential elements of substantially impaired rape proven beyond a reasonable doubt. 13 Doss s conviction for rape was upheld while the kidnapping conviction was vacated because the State failed to present evidence showing force, threat, deception, or the restraint of liberty, an essential element of the offense of kidnapping. 14 C. Doss II Upon rehearing the case, the Eighth District, again in a split decision, held the State had not met its burden to show the rape victim was substantially impaired and that the defendant knew or should have known of the substantial impairment. 15 Doss was released from prison, his convictions for rape and kidnapping were vacated, and his sexually oriented 8. Doss, 135 Ohio St. 3d at 211, 2012-Ohio-5678 2, 985 N.E.2d at 1230. 9. See id. at 212, 2012-Ohio-5678 3, 985 N.E.2d at 1230. 10. Id. at 211, 2012-Ohio-5678 2, 985 N.E.2d at 1230. 11. State v. Doss, No. 88443, 2007-Ohio-6483 8, 13, 17, 20, 24, 27, 32 (8th Dist. Dec. 6, 2007) [hereinafter Doss I]. 12. Id. at 20-21. 13. Id. at 23, 41 (paragraph 41 contains Judge McMonagle s brief dissent on the issue of consent and voluntary intoxication). 14. Id. at 25-26, 39; OHIO REV. CODE ANN. 2905.01(A) (West 2012). 15. State v. Doss, No. 88443, 2008-Ohio-449 25, 30 (8th Dist. Jan. 24, 2008) [hereinafter Doss II] (paragraph 30 demonstrates Judge Sweeney s disagreement with the Doss II majority on the sufficiency of the evidence).

2013] DOSS V. STATE 1095 offender label was removed. 16 The Supreme Court of Ohio denied the State s appeal to review the Eighth District s decision and Doss was freed. 17 Following his release from prison in 2008, Doss filed suit seeking compensation for wrongful imprisonment under section 2743.48 of the Ohio Revised Code. 18 He asked the Cuyahoga County Court of Common Pleas to issue a judgment declaring him to be a wrongfully imprisoned individual under section 2743.48, citing only the decision of the Eighth District vacating his conviction as the basis for finding eligibility under the statute. 19 The common pleas court granted Doss s motion for summary judgment, finding that he was a wrongfully imprisoned individual under the statute. 20 The court found further that the court of appeals decision to reverse and vacate plaintiff Doss s conviction... can only be interpreted to mean either that plaintiff Doss was innocent... or that no crime was committed by plaintiff Doss, or both. 21 D. Doss III The Eighth District Court of Appeals reviewed the trial court s decision to grant Doss s summary judgment motion and, in a third two-to-one decision, affirmed. 22 The State s case against Doss was based entirely on his own statement concerning the alleged victim s mental state. 23 As such, no evidence was presented at trial concerning Doss s subjective knowledge of the alleged victim s ability to consent and, therefore, no genuine issue of fact or mistake of law existed regarding Doss s motion for summary judgment. 24 The trial court s decision was proper. 25 In a strong dissent, however, Judge Frank Celebrezze argued, in accordance with the Supreme Court of Ohio s holding in Ellis v. State, 26 the vacation of Doss s conviction merely established that he was not guilty and that the State did not prove its case beyond a reasonable doubt. 27 Judge Celebrezze found that to establish that he was a wrongfully imprisoned individual Doss carried the burden under ORC 2743.48 to prove his innocence by a preponderance of the evidence. 28 He ultimately concluded 16. Id. at 26. 17. State v. Doss, 118 Ohio St. 3d 1507 (2008). 18. Doss, 135 Ohio St. 3d at 212, 2012-Ohio-5678 5, 985 N.E.2d at 1231. 19. See id., 2012-Ohio-5678 5, 985 N.E.2d at 1231. 20. Id., 2012-Ohio-5678 6, 985 N.E.2d at 1231. 21. Id., 2012-Ohio-5678 6, 985 N.E.2d at 1231. 22. Id., 2012-Ohio-5678 7, 985 N.E.2d at 1231. 23. Doss, 135 Ohio St. 3d at 212, 2012-Ohio-5678 7, 985 N.E.2d at 1231. 24. Id., 2012-Ohio-5678 7, 985 N.E.2d at 1231. 25. Id., 2012-Ohio-5678 7, 985 N.E.2d at 1231. 26. 64 Ohio St. 3d 391, 596 N.E.2d 428 (1992). 27. Id. at 393, 596 N.E.2d at 430. 28. See id. at 393, 596 N.E.2d at 430.

1096 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 that because this was not a case where the evidence is so clear that Doss can be found to be innocent solely on this court s prior opinion, Doss was not entitled to summary judgment on the basis of the Eighth District s decision in Doss II alone. 29 Judge Celebrezze s decision, however, leaves open the possibility that eligibility as a wrongfully imprisoned individual may, in limited circumstances, be based entirely on an appellate court s decision to vacate a conviction. 30 The Supreme Court of Ohio accepted the case to review two questions: (1) whether a trial court deciding innocence under ORC 2743.48 may grant summary judgment on the basis of an appellate decision finding insufficient evidence for conviction; and (2) whether, under ORC 2743.48, an inmate must prove innocence by a preponderance of the evidence. 31 III. DECISION AND RATIONALE In Doss, the Supreme Court of Ohio held that an appellate court s decision to reverse and vacate a criminal conviction is not sufficient to establish by a preponderance of the evidence that a person is a wrongfully imprisoned individual entitled to compensation under ORC 2743.48. 32 A. Unanimous Decision of Justice Lanzinger Justice Lanzinger begins the unanimous opinion of the Supreme Court of Ohio with a brief discussion of the statutory framework through which wrongfully imprisoned individuals may be compensated in Ohio. 33 In order to receive compensation, a formerly incarcerated person must take two steps: (1) an action in a court of common pleas seeking a factual determination that the person was, in fact, wrongfully imprisoned; and (2) an action against the State in the Court of Claims to set damages and provide recovery. 34 The purpose of the statute permitting the compensation of wrongfully imprisoned individuals was to replace the former practice of compensating those wrongfully imprisoned by ad hoc moral-claims legislation. 35 Continuing with a textual analysis of ORC 2743.48, the court addressed whether Doss was, in fact, wrongfully imprisoned under the statute. 36 In 29. Doss v. State, 2011-Ohio-6429 22 (8th Dist. Dec. 15, 2011) [hereinafter Doss III]. 30. See id. at 22. 31. Doss, 135 Ohio St. 3d at 213, 2012-Ohio-5678 9, 985 N.E.2d at 1231-32. 32. Id. at 211, 2012-Ohio-5678 1, 985 N.E.2d at 1230. 33. Id. at 213, 2012-Ohio-5678 10, 985 N.E.2d at 1232. 34. Id., 2012-Ohio-5678 10, 985 N.E.2d at 1232 (citing Griffith v. Cleveland, 128 Ohio St. 3d 35, 40 (2010)). 35. Id., 2012-Ohio-5678 10, 985 N.E.2d at 1232. 36. Doss, 135 Ohio St. 3d at 214, 2012-Ohio-5678 11-12, 985 N.E.2d at 1232-33.

2013] DOSS V. STATE 1097 order to be eligible under the statute, the former inmate must meet five conditions: (1) he must have been charged with a felony or aggravated felony; (2) he must have been found guilty but not pleaded guilty to the offense; (3) he must have been sentenced to a term of imprisonment as a result of the conviction; (4) the conviction must have been vacated, dismissed, or reversed on appeal; and (5) either an error in procedure resulted in the individual s release or the court of common pleas must have determined that the charged offense, including all lesser included offenses, either was not committed by the individual or was not committed by any person. 37 The only issue here was whether Doss met the fifth prong of the test to establish that he was a wrongfully imprisoned individual. 38 Although the language of ORC 2743.48(A)(5) does not explicitly require proof of actual innocence, 39 the court has determined that a showing that the offense either was not committed by the individual or was not committed by any person means that actual innocence must be established. 40 In its analysis, the Supreme Court of Ohio pointed to Walden v. State 41 as controlling precedent for this case. 42 In Walden, a woman was acquitted after learning that the prosecution had suppressed evidence. 43 The Supreme Court of Ohio held that her acquittal establishes only that the State did not meet its burden, not that she was, in fact, innocent. 44 The court in Walden further addressed the intent of the General Assembly in enacting the wrongfully imprisoned persons statute; the legislature intended for the common pleas courts to distinguish individuals who were actually imprisoned wrongfully from those who merely avoided criminal liability. 45 Proof of innocence by a preponderance of the evidence paints the line that separates the wrongfully imprisoned from those who simply avoided liability. 46 The Doss court reiterated this holding, determining that ORC 2743.48(A) requires that the claimant show something more than an acquittal to establish actual innocence. 47 37. Id., 2012-Ohio-5678 11, 985 N.E.2d at 1232 (quoting OHIO REV. CODE ANN. 2743.48(A)(1)-(5)) (emphasis in original). 38. See id., 2012-Ohio-5678 12, 985 N.E.2d at 1233. 39. See OHIO REV. CODE ANN. 2743.48(A)(5). 40. Doss, 135 Ohio St. 3d at 214, 2012-Ohio-5678 12, 985 N.E.2d at 1233; Walden v. State, 47 Ohio St. 3d 47, 53, 547 N.E.2d 962, 968 (1989) (under the predecessor to ORC 2743.48, the claimant bears the burden of proving his innocence by a preponderance of the evidence ). 41. 47 Ohio St. 3d 47, 547 N.E.2d 962. 42. See Doss, 135 Ohio St. 3d at 215, 2012-Ohio-5678 13-14, 985 N.E.2d at 1233. 43. Walden, 47 Ohio St. 3d at 47, 547 N.E.2d at 962-63. 44. Id. at 51, 547 N.E.2d at 966. 45. Id. at 52, 547 N.E.2d at 967. 46. Id., 547 N.E.2d at 966-67. 47. Doss, 135 Ohio St. 3d at 215, 2012-Ohio-5678 14, 985 N.E.2d at 1233; see also Griffith, 128 Ohio St. 3d at 40, 941 N.E.2d. at 1161.

1098 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 In Doss s case, proof that his conviction was vacated is legally equivalent to the acquittal in Walden and does not confirm his innocence. 48 The Eighth District s decision in Doss II established only that the evidence presented at trial was insufficient to meet the State s burden. 49 However, whether the State can prove Doss s guilt beyond a reasonable doubt is a separate inquiry from whether he can prove his innocence by a preponderance of the evidence. 50 It is the latter question that common pleas courts are charged with answering under ORC 2743.48(A) and the fact that Doss s conviction was vacated is probative but not dispositive of that issue. 51 Turning to the procedural posture of the case before it, the Supreme Court of Ohio addressed the standard necessary to be successful on a motion for summary judgment. 52 Doss argued, and the trial and appellate courts agreed, that as a matter of law the Eighth District s decision in Doss II establishes his innocence and his eligibility for compensation. 53 The lower courts were mistaken, however, and Doss must affirmatively establish his innocence. 54 The function of the common pleas court under the statute is to adjudicate innocence de novo and separate from the question of guilty or not guilty. 55 The court concluded, finally, that in order to receive compensation each of the five factors in ORC 2743.48(A) must be proven by a preponderance of the evidence and that an appellate court s decision may not be the sole basis for a finding of actual innocence. 56 The case was remanded to the trial court where Doss may present further evidence establishing his innocence. 57 IV. ANALYSIS In Doss v. State, the Supreme Court of Ohio decided two questions, holding: (1) that an appellate court s decision to vacate a conviction may not establish actual innocence under ORC 2743.48; and (2) that eligibility for compensation under the statute requires that each of five factors be proven by a preponderance of the evidence. 58 Although the court s 48. Doss, 135 Ohio St. 3d at 217-18, 2012-Ohio-5678 21-22, 985 N.E.2d at 1235. 49. Id. at 216, 2012-Ohio-5678 17, 985 N.E.2d at 1234. 50. Id., 2012-Ohio-5678 17, 985 N.E.2d at 1234. 51. Id., 2012-Ohio-5678 17, 985 N.E.2d at 1234. 52. Id., 2012-Ohio-5678 18, 985 N.E.2d at 1234. 53. Doss, 135 Ohio St. 3d at 217, 2012-Ohio-5678 19-20, 985 N.E.2d at 1234-35. 54. Id., 2012-Ohio-5678 20-21, 985 N.E.2d at 1234-35. 55. Id., 2012-Ohio-5678 21, 985 N.E.2d at1235. 56. Id. at 218, 2012-Ohio-5678 22, 985 N.E.2d at 1235. 57. Id., 2012-Ohio-5678 22, 985 N.E.2d at 1235. 58. Doss, 135 Ohio St. 3d at 218, 2012-Ohio-5678 22, 985 N.E.2d at 1235.

2013] DOSS V. STATE 1099 decision, based on the facts of Doss and current law in Ohio, was correct, 59 the Supreme Court of Ohio may have missed an opportunity to make recovery for wrongfully imprisoned individuals more plausible by shifting the burden of proof to the State. 60 The statute is designed to compensate those who are genuinely wrongfully imprisoned and not to provide compensation for every person who is arrested and acquitted at trial. 61 The best way to ensure this result is not to leave the burden on the claimant but to shift it to the State. 62 A. The Supreme Court of Ohio got the right result in Doss In Doss the issue of whether the criminal defendant was actually innocent turned on his knowledge of the victim s mental state at the time of the alleged rape. 63 The question was whether he knew or should have known that her capacity to consent was substantially impaired. 64 Two witnesses testified that the victim was very intoxicated and the victim said that she blacked out. 65 Doss testified that the victim wanted to have sex with him and was the one who initiated the encounter. 66 Because the state was unable to present any physical evidence linking Doss to the rape and only he and his girlfriend were able to make a full account of the evening s events, the case came down to whose story was more credible. 67 In such a case it would be virtually impossible for either side, Doss or the State, to prove its case by a preponderance of the evidence. More importantly, Doss presented only the opinion of the Eighth District Court of Appeals in Doss II to show that he was probably innocent. 68 The Eighth District s opinion showed only that the evidence the state presented was insufficient to prove beyond a reasonable doubt that Doss was guilty. 69 On the basis of this evidence alone it is clear that neither side carried its burden. 70 The question is what impact the court s holding, placing the burden on an ORC 2743.48 59. See Walden, 47 Ohio St. 3d at 51-52, 547 N.E.2d at 966; Griffith, 128 Ohio St. 3d at 40, 941 N.E.2d at 1161. 60. See Doss, 135 Ohio St. 3d at 216, 218, 2012-Ohio-5678 17, 22, 985 N.E.2d at 1234-35. 61. See id. at 213, 2012-Ohio-5678 10, 14, 985 N.E.2d at 1232. 62. Kahn, supra note 7, at 145-47. 63. See Doss, 135 Ohio St. 3d at 212, 2012-Ohio-5678 3, 985 N.E.2d at 1230. 64. Id., 2012-Ohio-5678 3, 985 N.E.2d at 1230. 65. Doss II, 2008-Ohio-449 29. 66. Id., 2008-Ohio-449 6. 67. See id., 2008-Ohio-449 4-7. 68. Doss, 135 Ohio St. 3d at 217, 2012-Ohio-5678 19, 985 N.E.2d at 1234. 69. Doss II, 2008-Ohio-449 25. 70. See Doss, 135 Ohio St. 3d at 217, 2012-Ohio-5678 19-20, 985 N.E.2d at 1234-35 (the Eighth District s opinion in Doss II does not establish probable guilt or innocence by a preponderance of the evidence).

1100 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 claimant to prove his innocence, will have on those who have been wrongfully imprisoned in the future. 71 B. What if the burden were shifted to the State? Those who have been wrongfully imprisoned face serious non-financial obstacles. 72 Financial compensation for lost wages and loss of employment are in many cases simply not sufficient to make those who have been wrongfully imprisoned entirely whole. 73 Similar barriers exist to re-entry and resuming a normal, productive existence. 74 In Doss s case, he was convicted in 2006 of kidnapping and rape and released in 2008. 75 In 2008 he also filed his claim in the court of common pleas for compensation. 76 But Doss will also have to live for the rest of his life with the fact that he was convicted of rape and kidnapping and that he spent two years in prison. 77 In addition to the inevitable psychological impact of these events, the state will never compensate him for the cost to his reputation. 78 In a recent article, Daniel S. Kahn, a trial attorney in the Criminal Fraud Division of the United States Department of Justice, presents five justifications for shifting the burden of proof to the State: (1) the State has access to and dominion over the evidence; (2) because it is very difficult to prove a negative (i.e. that Doss did not commit the crime) the State is in a better position to prove the positive; (3) placing the burden on the State removes the incentive to hold the claimant to his burden and thereby preclude or draw out the recovery period; (4) shifting the burden to the State is consistent with the presumption of innocence; and (5) shifting the burden may have a deterrent effect on wrongful convictions. 79 Doss requires that the first step in a claim for compensation take place in the county s court of common pleas. 80 In the court of common pleas, a mini-trial is held to determine whether the claimant is a wrongfully imprisoned individual. 81 There are concerns, however, amongst those who 71. See id. at 218, 2012-Ohio-5678 22, 985 N.E.2d at 1235. 72. Kahn, supra note 7, at 129. 73. Id. at 129-30. 74. Id. at 130. 75. Doss, 135 Ohio St. 3d at 211-12, 2012-Ohio-5678 2, 4, 985 N.E.2d at 1230-31. 76. Id., 2012-Ohio-5678 5, 985 N.E.2d at 1231. 77. Id., 2012-Ohio-5678 2, 4, 985 N.E.2d at 1230-31. 78. Kahn, supra note 7, at 129-30. 79. Id. at 148. 80. Doss, 135 Ohio St. 3d at 213, 2012-Ohio-5678 10, 985 N.E.2d at 1232. 81. Id. at 213, 2012-Ohio-5678 10, 985 N.E.2d at 1232.

2013] DOSS V. STATE 1101 do not favor wrongful imprisonment compensation statutes, that these minitrial-like procedures are too expensive and burdensome on state resources. 82 Shifting the burden of proof to the State would have the benefit of making recovery more realistic as well as relieving burdens on state resources. 83 Because the State has better access to evidence, the process of using, presenting, and sharing evidence would be more efficient, less costly, and could be done extra-judicially. 84 If the State carried the burden of proof, it would be more consistent with its burden at trial, conserving state resources. 85 Shifting the burden to the State would also provide an incentive to avoid litigation through settlement and would discourage the State from drawing out the process. 86 More importantly, shifting the burden would not make it easier for undeserving claimants to recover under ORC 2743.48 or similar statutes. 87 The Supreme Court of Ohio could, in fact, shift the burden of proof to the State by decision, as the language of the statute does not clearly put the burden on claimants. 88 The Revised Code states that a wrongfully imprisoned individual means an individual who satisfies each of the following. 89 It is, in fact, consistent with the intent of the legislature that those who are wrongfully imprisoned be compensated. 90 Shifting the burden of proof would, in many cases, make the path to recovery slightly easier for those whose claims are not pursued because of the cost of litigation, difficulties in collecting evidence, and the struggle to prove a negative. 91 Although it is possible that shifting the burden to the State may encourage settlement with claimants who might otherwise not be successful, 92 a state s policy-makers must make that determination. They must decide whether it is more important to ensure that those who were actually wrongfully imprisoned have a remedy or if it is a higher priority to prevent those who may not be actually innocent from recovering at all. 82. Justin Brooks and Alexander Simpson, Find the Cost of Freedom: The State of Wrongful Conviction Compensation Statutes Across the Country and the Strange Legal Odyssey of Timothy Atkins, 49 SAN DIEGO L. REV. 627, 636 (2012). 83. Kahn, supra note 7, at 148-52. 84. Id. at 148-49. 85. Id. at 149. 86. Id. at 152. 87. Kahn, supra note 7, at 168. 88. OHIO REV. CODE ANN. 2743.48(A). 89. Id. 90. See Doss, 135 Ohio St. 3d at 213, 2012-Ohio-5678 10, 985 N.E.2d at 1232. 91. Kahn, supra note 7, at 146-48. 92. Id. at 163-64.

1102 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 39 V. CONCLUSION Although many states have made good faith efforts to address the issue of compensating those who are wrongfully convicted, 93 not everyone who is wrongfully convicted is able to recover and each of those individuals faces serious barriers to re-entry. 94 It is a clear and pragmatic approach to adopt a rule that does not permit anyone who was acquitted or who merely avoided criminal liability to be compensated. 95 However, when so many individuals who were actually innocent are unable to recover or even pay the expense of maintaining an action to hopefully receive some compensation eventually, 96 something in the system should be re-evaluated. In Doss v. State, unfortunately, the Supreme Court of Ohio mechanically applied the precedent from the Walden and Griffith courts. 97 The result is that an opportunity to shift the burden from the claimant to the State was missed and the difficulty that wrongfully imprisoned individuals face in re-entering society continues. 98 Although shifting the burden to the State may fit into the language of the statute and is, thus, possible by judicial decision, 99 it is perhaps most appropriately the function of the General Assembly to make the burden explicit. Until then, hopefully discussions will continue so that innocent people who are incarcerated can be made whole. ANDREW D. PUGSLEY 93. Id. at 127-28. 94. Id. at 129-30. 95. Doss, 135 Ohio St. 3d at 215, 2012-Ohio-5678 14, 985 N.E.2d at 1233 (quoting Walden, 47 Ohio St. 3d at 52, 547 N.E.2d at 962). 96. Kahn, supra note 7, at 136. 97. Doss, 135 Ohio St. 3d at 215, 2012-Ohio-5678 13-14, 985 N.E.2d at 1233. 98. Id. at 218, 2012-Ohio-5678 22, 985 N.E.2d at 1235; Kahn, supra note 7, at 129-30. 99. OHIO REV. CODE ANN 2743.48(A).