State v. Lay , 2021 Ohio 892 ( 2021 )

[Cite as State v. Lay, 2021-Ohio-892.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2020-08-050
Appellee, : OPINION
3/22/2021
:
- vs -
:
MICHAEL A. LAY, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case No. 2020 CRB 2033
Mark Tekulve, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103, for appellant
M. POWELL, P.J.
{¶ 1} Appellant, Michael A. Lay, appeals from his conviction in the Clermont County
Municipal Court for violating a protection order. For the reasons discussed below, we affirm
the conviction.
{¶ 2} In mid-May 2020, B.W. petitioned the Clermont County Domestic Relations
Clermont CA2020-08-050
Court for a domestic violence civil protection order ("DVCPO") against appellant. With the
order she sought to protect herself and her minor son. Appellant is the father of B.W.'s son.
The domestic relations court issued an ex parte DVCPO pursuant to R.C. 3113.31 on the
day of the petition and set the full hearing for May 28th. The DVCPO prohibited Lay from
contacting B.W. or her son.
{¶ 3} On May 22, 2020, appellant attempted to contact B.W. by telephone. B.W.
reported the incident to law enforcement and a deputy sheriff, Deputy Ross, responded.
B.W. informed the deputy that she had received a DVCPO against appellant and explained
that appellant had telephoned her, but she did not answer. Deputy Ross reviewed law
enforcement records and contacted the civil division of the sheriff's office to learn whether
the DVCPO had been served. Deputy Ross could not verify that the DVCPO had been
served on appellant. Based on the lack of service, the deputy decided not to charge
appellant for the violation of the DVCPO. However, the deputy personally called appellant,
in the presence of B.W., to inform appellant that a DVCPO had been issued against him
and he was prohibited from contacting B.W. or her son. Besides appellant identifying
himself to Deputy Ross, B.W. overheard the conversation and identified appellant by his
voice.
{¶ 4} Appellant failed to appear for the full hearing on B.W.’s DVCPO petition. The
domestic relations court continued the hearing and extended the ex parte DVCPO by re-
issuing the order on May 28th to reflect a new hearing date and order expiration.
{¶ 5} On June 21, 2020, appellant sent B.W. a text message asking if their son
could call him. B.W. again reported the incident to law enforcement. A second deputy
sheriff, Deputy Shouse, responded. Believing that appellant had been notified of the
DVCPO, Deputy Shouse filed a complaint in the Clermont County Municipal Court charging
appellant with violating a protection order, a first-degree misdemeanor, in violation of R.C.
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2919.27(A)(1). Appellant was arrested and arraigned. He pled not guilty to the charge and
the matter proceeded to a bench trial.
{¶ 6} At trial, B.W., Deputy Ross, and Deputy Shouse testified on behalf of the state.
The state also presented as evidence a copy of the DVCPO issued May 28th, a screenshot
from B.W.'s telephone of the text message she received on June 21, and a screenshot from
B.W.'s telephone of appellant's contact information. After the state rested, appellant moved
for a Crim.R. 29 judgment of acquittal asserting that the state failed to prove that either the
DVCPO had been properly served before the alleged violation or that appellant had prior
notice of the order. The trial court denied the motion. Appellant did not put forth any
evidence. The trial court found appellant guilty as charged and sentenced him according
to law.
{¶ 7} Appellant now appeals and raises one assignment of error for review:
{¶ 8} THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY AS THE
EVIDENCE WAS INSUFFICIENT TO PROVE THAT APPELLANT HAD RECEIVED
SERVICE OF PROTECTION ORDER NO. 2 THROUGH ONE OF THE METHODS SET
FORTH IN R.C. 2919.27(D).
{¶ 9} In his sole assignment of error, appellant challenges the sufficiency of the
evidence. He argues that the state failed to prove an essential element of the offense, that
is, that he had been properly served with the DVCPO or that he had notice of the DVCPO.
He contends that the domestic relations court issued two, separate DVCPOs against him,
one issued May 13 and the other issued May 28. While he concedes that a law enforcement
officer informed him of the May 13th protection order, he argues that each order required
distinct notice, and he was neither served with nor distinctly informed of the DVCPO re-
issued on May 28.
{¶ 10} A challenge to the sufficiency of the evidence requires this court to determine
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whether the evidence is adequate to support the conviction as a matter of law. State v.
Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, ¶ 13. The relevant inquiry is, after
viewing the evidence in the light most favorable to the prosecution, whether any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Thacker, 12th Dist. Warren No. CA2019-06-058, 2020-Ohio-
1318, ¶ 60.
{¶ 11} To convict appellant for a violation of R.C. 2919.27(A)(1), the state had to
prove that appellant recklessly violated the terms of the protection order issued pursuant to
R.C. 3113.31. A person acts recklessly when,
with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person’s
conduct is likely to cause a certain result or is likely to be of a
certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the
consequences, the person disregards a substantial and
unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C). The Ohio Supreme Court has held that service of a protection order,
before the alleged violation occurs, is an element of the offense. See State v. Smith, 136
Ohio St.3d 1, 2013-Ohio-1698, ¶ 28. In response to Smith, the General Assembly amended
R.C. 2919.27. See 2017 S.B. 7. This amendment became effective in September 2017
and inserted a new provision in R.C. 2919.27 which sets forth that
[i]n a prosecution for a violation of this section, it is not
necessary for the prosecution to prove that the protection order
or consent agreement was served on the defendant if the
prosecution proves that the defendant was shown the protection
order or consent agreement or a copy of either or a judge,
magistrate, or law enforcement officer informed the defendant
that a protection order or consent agreement had been issued,
and proves that the defendant recklessly violated the terms of
the order or agreement.
R.C. 2919.27(D). This provision makes it unnecessary for the prosecution to prove that a
defendant has been served with the protection order if the prosecution can otherwise prove
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that a law enforcement officer informed the defendant that the protection order had been
issued. See State v. Kidd, 8th Dist. Cuyahoga No. 109126, 2020-Ohio-4994, ¶ 44.
{¶ 12} Turning now to appellant's contention that there were two distinct orders, we
find that argument lacks merit. Domestic relations courts have jurisdiction to issue
temporary, ex parte DVCPOs. R.C. 3113.31(A)(2) and 3113.31(D)(1). If the court issues
such an order, it must schedule a full hearing on the petition within 7 or 10 days, depending
upon the nature of the protection sought. Nevertheless, the full hearing may be continued
if "the respondent has not been served with the petition filed pursuant to this section and
notice of the full hearing." R.C. 3113.31(D)(2)(a)(i). The General Assembly has expressly
provided that "[a]n ex parte order issued under this section does not expire because of a
failure to serve notice of the full hearing upon the respondent before the date set for the full
hearing under division (D)(2)(a) of this section or because the court grants a continuance
under that division." (Emphasis added.) R.C. 3113.31(D)(2)(b). Moreover, "[a]ny protection
order issued * * * pursuant to this section may be renewed in the same manner as the
original order or agreement was issued or approved." R.C. 3113.31(E)(3)(c).
{¶ 13} Here, the reissuance of the ex parte DVCPO was made necessary by the fact
that appellant had not been served with the May 13 order in time for the full hearing on the
matter. Pursuant to R.C. 3113.31(D)(2)(b) the initial order did not expire because of the
lack of service. The domestic relations court merely reissued the order on May 28th to
reflect the ongoing protection afforded to B.W. and to designate the new hearing dates.
B.W. testified that the substantive provisions of the initial order and the reissued order did
not change. Therefore, we hold that the DVCPO reissued on May 28 was not a separate
order from the initial DVCPO.
{¶ 14} Next, we find that appellant's reliance on State v. Doss, 2d Dist. Champaign
No. 2018-CA-41, 2019-Ohio-2247 is misplaced because it is distinguishable on the facts.
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In Doss, the Second District held that there was no direct evidence the defendant had been
served with or notified of the protection order. Id. at ¶ 11. Conversely, in the instant case,
there was evidence appellant was notified of the protection order. Deputy Ross testified
that he informed appellant about the DVCPO on May 22. The deputy's notice to appellant
satisfied the requirements of R.C. 2919.27(D) because we have determined that there was
only one DVCPO issued against appellant. By contacting B.W. after Deputy Ross informed
him of the DVCPO, appellant disregarded a substantial and unjustifiable risk that his
conduct was likely to be in violation of the DVCPO. Consequently, the evidence was
sufficient to convict appellant of violating the protection order.
{¶ 15} Accordingly, appellant's sole assignment of error is overruled.
{¶ 16} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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