State v. Brogden , 2018 Ohio 735 ( 2018 )

[Cite as State v. Brogden, 2018-Ohio-735.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170185
TRIAL NO. 16CRB-32986
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ASHLEY BROGDEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: March 2, 2018 March 2, 2018
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Ashley Brogden appeals her conviction, following a bench trial, for
violating a protection order. The state concedes that the conviction must be
reversed. Because the state failed to prove that the protection order was in effect on
the date of the offense, we reverse the conviction and discharge Brogden from further
prosecution.
Facts and Procedural History
{¶2} On December 8, 2016, Brogden was charged with one count of
violating a civil protection order in violation of R.C. 2919.27(A)(2), a misdemeanor of
the first degree. The protection order was an ex-parte, temporary order obtained by
her neighbor, Jessica Wilson, on November 3, 2016. Both lived in the same
apartment building, and their apartments were next door to each other.
{¶3} On November 22, 2016, Officer Price responded to a call regarding an
alleged assault of Wilson by Brogden. While Price was speaking with Brogden, he
learned that the temporary protection order had not been served on Brogden. Price
retrieved the temporary protection order from the police station and returned to
serve Brogden a copy of the order.
{¶4} On December 8, 2016, Jessica Wilson filed a complaint alleging that
Brogden verbally harassed her by cursing at her and threatening violence on multiple
occasions between December 6 and 8, 2016. Brogden entered a not-guilty plea, and
the case proceeded to a bench trial.
{¶5} At trial, Wilson and her mother testified that Brogden shouted insults
at Wilson all three days. Brogden testified that Wilson taunted her all three days,
and Brogden responded to her once.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Price identified the ex-parte protection order that he had served on
Brogden on November 22, 2016. The order that he delivered to her was effective
until November 16, 2016, when the full hearing was scheduled. The protection order
was admitted into evidence.
{¶7} After closing arguments, the trial court reviewed the protection order
and noted that it had expired on November 16, 2016, before the alleged violation.
The court then asked the prosecutor if she had another protection order.
{¶8} The prosecutor had a separate entry showing that the full hearing on
the protection order had been continued until February 14, 2017, and that the
temporary order remained in effect until then. The entry had not been attached to
the temporary order, and the return of service upon respondent was left blank. The
entry was not certified, and Price did not identify the entry or testify that he had
served Brogden with a copy of the entry continuing the temporary order.
{¶9} The trial court allowed the state to admit the document as evidence,
over Brogden’s objection. The court found Brogden guilty and sentenced her to 180
days plus court costs.
Law and Analysis
{¶10} In her first assignment of error, Brogden argues that the conviction
was based on insufficient evidence because the state failed to prove that the
protection order was in effect on the date of the alleged offense.
{¶11} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found all the essential elements of the crime proved
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OHIO FIRST DISTRICT COURT OF APPEALS
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
{¶12} To prove a violation of a civil protection order, the state is required to
prove that the order was in effect on the date of the offense. See State v. Frazier, 158
Ohio App. 3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 9-10 (1st Dist.); State v.
Collins, 4th Dist. Meigs No. 96 CA 33, 1997 WL 426150 (July 16, 1997).
{¶13} The state concedes that the entry was not properly admitted into
evidence, and that the state failed to prove the protection order was in effect on the
date of the offense. Therefore, Brogden’s conviction was based upon insufficient
evidence.
Conclusion
{¶14} Accordingly, we sustain the first assignment of error. We reverse the
judgment of conviction and discharge Brogden from further prosecution. Our
disposition of the first assignment of error renders the second assignment of error
challenging the trial court’s failure to allow Brogden her right of allocution moot.
Judgment reversed and appellant discharged.
MOCK, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry this date.
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