State v. Sorensen , 2023 Ohio 2121 ( 2023 )

[Cite as State v. Sorensen, 2023-Ohio-2121.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NOS. 2022-L-093
CITY OF PAINESVILLE, 2022-L-094
Plaintiff-Appellee, Criminal Appeals from the
Painesville Municipal Court
- vs -
SHAWN M. SORENSEN, Trial Court Nos. 2022 CRB 00930
2022 CRB 00952
Defendant-Appellant.
OPINION
Decided: June 26, 2023
Judgment: Affirmed
Joseph Hada, Painesville City Prosecutor, 1392 SOM Center Road, Mayfield Heights,
OH 44124 (For Plaintiff-Appellee).
Cory R. Hinton, Hanahan & Hinton, LLC, 8570 Mentor Avenue, Mentor, OH 44060 (For
Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Shawn M. Sorensen, appeals the sentencing entries issued after
the trial court found him guilty of violating a protection order in two separate cases. We
affirm.
{¶2} In 2022, Sorensen was charged in each of two cases with violating a
protection order, a misdemeanor of the first degree, in violation of R.C. 2919.27, following
allegations that he had sent electronic communications and physical mail to the victim,
with whom he was not permitted contact pursuant to the terms of a then existing protection
order. Both cases proceeded to bench trial separately on the same date. The trial court
found Sorensen guilty and sentenced him to 180 days of confinement in each case, to be
served consecutively, and imposed a fine of $100.00 in each case.
{¶3} In his sole assigned error, Sorensen argues:
{¶4} “The trial court erred when it admitted State’s Exhibit 5, the Protection
Order, by and through judicial notice.”
{¶5} Although Sorensen noticed an appeal from each of the two separate cases,
Sorensen’s argument that Exhibit 5 was improperly admitted through judicial notice
pertains to Case No. 22CRB00930.1 The charge in that case arose from the victim’s
report that Sorensen had contacted her through text-messaging and an app service used
by the jail while a protection order was in place preventing him from contacting her.
Sorensen does not challenge admission of the protection order in Case No.
22CRB00952. We limit our discussion accordingly.
{¶6} Evid.R. 201 governs judicial notice of adjudicative facts, and provides:
(A) Scope of Rule. This rule governs only judicial notice of
adjudicative facts; i.e., the facts of the case.
(B) Kinds of Facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
(C) When Discretionary. A court may take judicial notice,
whether requested or not.
1. The protection order was marked as “Exhibit 5” in this case and “Exhibit 4” in Case No. 22CRB00952.
However, although the remaining exhibits were transmitted with the record and transcript on appeal, the
copies of the protection orders that were submitted as exhibits were not included. We cannot discern the
reason for their removal from the exhibits, but they are unnecessary to our discussion.
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Case Nos. 2022-L-093 and 2022-L-094
(D) When Mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary
information.
(E) Opportunity to Be Heard. A party is entitled upon timely
request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In the
absence of prior notification, the request may be made after
judicial notice has been taken.
(F) Time of Taking Notice. Judicial notice may be taken at
any stage of the proceeding.
(G) Instructing Jury. In a civil action or proceeding, the court
shall instruct the jury to accept as conclusive any fact judicially
noticed. In a criminal case, the court shall instruct the jury that
it may, but is not required to, accept as conclusive any fact
judicially noticed.
{¶7} Here, Sorensen challenges the trial court’s taking of judicial notice of the
protection order that he was charged with violating. Prior to the court stating that it would
take judicial notice of the protection order, the protection order was discussed during the
state’s questioning of an officer and of the victim. On direct examination, the officer
testified that he was dispatched to speak to the victim following her report of receiving
text and app messages from Sorensen. The officer then went to the jail, where he
attempted to speak with Sorensen; however, Sorensen invoked his right to counsel.
Thereafter, the officer maintained that he requested to have “some records” pulled for him
at the jail prior to completing his investigation.
{¶8} On cross-examination, the officer affirmed that he did not see Sorensen
type the messages that the victim received, and he did not know what language Sorensen
might use.
{¶9} On redirect examination of the officer, the following exchange occurred:
BY [THE STATE]:
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Case Nos. 2022-L-093 and 2022-L-094
Q Officer, you’ve -- you understand Mr. Sorensen speaks
English, correct?
A Correct.
Q All right. And you did check and confirm that the
protection order -- that there was a protection order in place,
correct?
A Correct.
Q And that protection order was in English, as well?
A Correct.
(State’s Exhibit 5 marked for identification.)
BY [THE STATE]:
Q All right, I’m showing you what’s been marked as
State’s Exhibit 5. That is the order of protection in this case.
Did you pull that in regards to your investigation?
A I did.
Q And did you have it certified?
A Yes.
Q And that is in English, correct?
[DEFENSE COUNSEL]: If I may object, this wasn’t addressed
during my cross, and it should be limited to what we
questioned, beyond the protection order.
THE COURT: The question was asked about what language
he would communicate in. Clearly he --
[DEFENSE COUNSEL]: We didn’t address the language of
the protection order.
[THE STATE]: (Inaudible.)
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Case Nos. 2022-L-093 and 2022-L-094
[DEFENSE COUNSEL]: Was he aware of the language of the
messaging that is supposedly from Mr. Sorensen, not whether
or not that language came from him.
THE COURT: I guess I'm not -- I don't know if it was meaning
the language, meaning the way he would write, or the way he
would sound, or was it English language. I could see where
the State may have -- I’ll let -- I’ll overrule the objection for
what it is. But stay within that --
[DEFENSE COUNSEL]: Your Honor, our objection is, though,
that the protection order hadn’t come up, as far as any
questioning. So that’s what my concern is.
THE COURT: I mean, the protection order came from this
Court, right?
[DEFENSE COUNSEL]: It did. But it did not come from any
of the questioning that was made.
THE COURT: Sure, I understand.
[DEFENSE COUNSEL]: I’m just saying that Mr. Sorensen is
being (inaudible).
THE COURT: Okay. All right. Overruled. But then, obviously,
you’re limited on the cross of that.
[THE STATE]: No further questions, Your Honor.
{¶10} During the victim’s testimony, she affirmed that she had obtained a
protection order against Sorensen, of which she had a copy. The victim testified that the
state’s Exhibit 5 was a true and accurate copy of the protection order she received.
{¶11} After the victim’s testimony, the state moved to admit its exhibits.
Thereafter, the defense objected, and the following discussion ensued:
[DEFENSE COUNSEL]: Your Honor, I would just have a brief
objection, I think, on the protection order, just because I
believe -- and I believe foundation wasn’t established by [the
victim] and discussed to make it appropriate for it to be
admitted as evidence.
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Case Nos. 2022-L-093 and 2022-L-094
THE COURT: Well, what about the fact that the Court could
take judicial notice of his own order?
[THE STATE]: We would request that.
[DEFENSE COUNSEL]: Your Honor, I do -- so (inaudible).
[DEFENDANT]: (Inaudible.)
THE COURT: Go ahead, [defense counsel].
[DEFENSE COUNSEL]: Your Honor, if I can address this.
Judicial notice is not enough to admit a protection order into
(inaudible) certified copy.
THE COURT: How about my -- the fact it’s my own order?
Right? Is that (inaudible) of somebody else’s order?
[THE STATE]: It is a certified copy and has been identified by
two witnesses.
THE COURT: Okay. I understand. Go ahead, Mister -- I’m
interested in --
[DEFENSE COUNSEL]: (Inaudible) the remaining of our
objection would be with the officer, is that it was used not as
showing the existence of the TPO, but as to show that Mr.
Sorensen didn’t understand the English language.
THE COURT: Your case law, though, does that address --
[DEFENSE COUNSEL]: Yeah, it addresses -- I don’t know if
it addresses when the order is from --
[DEFENDANT]: (Inaudible.)
[DEFENSE COUNSEL]: In the City of Cleveland v. Doan,
basically the court required that it had to be certified for proper
identification to enter into evidence. It also went into judicial
notice not being enough. In that case, the City had requested
the trial court take notice, judicial notice of a photocopy of a
protection order that was already signed by the defendant at
the time. Counsel at that time had objected and saying the
law requested a certified copy. The City countered that the
judicial notice was perfect because the protection order in the
file was identified by parties to the action.
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Case Nos. 2022-L-093 and 2022-L-094
[THE STATE]: So that would be certified.
THE COURT: Yeah. Yeah, I guess the Court is going to take
a judicial notice of its own order. The order came out of this
Court, signed by -- by me, with the -- it is maintained in the
clerk’s office, that is appointed by and sworn in by myself.
So we’ll take judicial notice of the May 16, 2022 order, just as
much the Court will take judicial notice of the fact that when
the indictment was no billed and came back, the Court then
removed that order on August 24th of 2022, as well.
(Sic. throughout.)
{¶12} Based upon the trial court’s statement that it was taking judicial notice of the
protection order, Sorensen relies on Cleveland v. Boone, 8th Dist. Cuyahoga No. 105762,
2018-Ohio-849 and Diversified Mtge. Investors, Inc. v. Athens Cty. Bd. of Revision, 7
Ohio App.3d 157, 159, 454 N.E.2d 1330 (4th Dist.1982), in support of his argument that
“[a] court may not take judicial notice of prior proceedings in the court but may only take
judicial notice of the proceedings in the immediate case.” Diversified Mtge. at 159.
{¶13} “However, ‘“[i]t is axiomatic that a trial court may take judicial notice of its
own docket”—including the docket in a separate case.’” DiVincenzo v. DiVincenzo, 11th
Dist. Lake No. 2022-L-014, 2022-Ohio-4457, ¶ 16, quoting Pollard v. Elber, 2018-Ohio-
4538, 123 N.E.3d 359, ¶ 4 (6th Dist.), quoting Indus. Risk Insurers v. Lorenz Equip. Co.,
69 Ohio St.3d 576, 580, 635 N.E.2d 14 (1994). In DiVincenzo, this court addressed the
apparent discrepancy between the principles established in case law that “(1) a court may
take judicial notice of its docket in [a] separate case, and (2) a court is precluded from
taking notice of prior ‘proceedings’ in a separate case * * *.” DiVincenzo at ¶ 16. We
concluded that “a court may take judicial notice of the existence of a judgment entry
issued in a separate case, but it may not take judicial notice of facts underlying the entry.”
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Case Nos. 2022-L-093 and 2022-L-094
Id. at ¶ 18. See also Dowhan v. Dowhan, 11th Dist. Lake No. 2012-L-065, 2013-Ohio-
4097, ¶ 19, overruled on other grounds by DiVincenzo at ¶ 28 (“We need not notice the
underlying factual basis for the protection order, since it is the fact of the protection order
and its terms which preclude the possibility of Terrance exercising visitation with his
children. (Emphasis added.)). But see Dombelek v. Ohio Bur. of Workers’ Comp., 154
Ohio App.3d 338, 2003-Ohio-5151, 797 N.E.2d 144, ¶ 26 (7th Dist.), citing D & B
Immobilization Corp. v. Dues, 122 Ohio App.3d 50, 701 N.E.2d 32, 33 (8th Dist.1997) (“a
trial court may not take judicial notice even of its own judgment entries in another case”);
and Phillips v. Rayburn, 113 Ohio App.3d 374, 680 N.E.2d 1279, 1282 (4th Dist.1996)
(“the trial court lacked the authority to take judicial notice of its own records in another
case”). We further noted this distinction is consistent with Evid.R. 201(B), “in that the
existence of a judgment entry in [a] separate case before the trial court is ‘not subject to
reasonable dispute in that it is * * * capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.’” DiVincenzo at ¶ 18.
Therefore, pursuant to this court’s precedent, the existence and terms of the protection
order previously entered that appear on the court’s own docket may be judicially noticed
by the court that issued the protection order.
{¶14} Accordingly, Sorensen’s sole assigned error lacks merit.
{¶15} The judgments of the trial court are affirmed.
JOHN J. EKLUND, P.J.,
MARY JANE TRAPP, J.,
concur.
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Case Nos. 2022-L-093 and 2022-L-094