State v. Kraynak ( 2024 )

[Cite as State v. Kraynak, 2024-Ohio-1428.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
STATE OF OHIO, CASE NO. 2023-G-0037
Plaintiff-Appellant,
Criminal Appeal from the
- vs - Chardon Municipal Court
SEAN JOSEPH KRAYNAK,
Trial Court No. 2023 CRB 00293
Defendant-Appellee.
OPINION
Decided: April 15, 2024
Judgment: Affirmed
Dennis M. Coyne, 111 Water Street, Chardon, OH 44024 (For Plaintiff-Appellant).
Sean Joseph Kraynak, pro se, 13599 Carlton Street, Unit N, Burton, OH 44021
(Defendant-Appellee).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, the state of Ohio, appeals the judgment dismissing a criminal
complaint filed against appellee, Sean Joseph Kraynak. We affirm.
{¶2} On April 24, 2023, a complaint was filed in the trial court charging Kraynak
with violating a protection order, a first-degree misdemeanor, in violation of R.C.
2919.27(A)(1). On June 12, 2023, Kraynak moved to dismiss the complaint. After a
hearing, the court granted the motion to dismiss.
{¶3} The state appeals and assigns one error as follows:
{¶4} “The Court erred when it dismissed the case in violation of Criminal Rule
12.”
{¶5} Crim.R. 12(C) provides, “Prior to trial, any party may raise by motion any
defense, objection, evidentiary issue, or request that is capable of determination without
the trial of the general issue.” “‘Crim.R. 12 permits a court to consider evidence beyond
the face of an indictment when ruling on a pretrial motion to dismiss an indictment if the
matter is capable of determination without trial of the general issue.’” State v. Swazey, -
-- Ohio St.3d ----, 2023-Ohio-4627, --- N.E.3d ----, ¶ 19 (Dec. 22, 2023), quoting State v.
Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 3; see also State v.
Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814, ¶ 16 (12th Dist.) (“The
Ohio Rules of Criminal Procedure do not provide for the equivalent of a civil motion for
summary judgment.”).
{¶6} Here, the complaint alleged that Kraynak violated R.C. 2919.27(A)(1),
which provides, in relevant part, “No person shall recklessly violate the terms of * * * [a]
protection order issued * * * pursuant to section 2919.26 or 3113.31 of the Revised
Code[.]” The complaint further stated it was based upon “the victim[’]s statement and R/O
viewing the telecommunication device where the post on Facebook was written having
the victim[’]s name attached to the post.” In support of his motion to dismiss, Kraynak
maintained that “he did not violate the Civil Protection Order and did not communicate
with [the protected person] via Facebook or any other means.”
{¶7} Thus, the motion to dismiss on its face appears to seek a ruling on the
“general issue,” “namely, ‘whether the accused violated the law as set forth in the
[charging instrument.]’” Swazey at ¶ 12. However, the trial court set the motion for
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hearing, and the state did not respond in opposition to the motion. Instead, at the
commencement of the hearing on Kraynak’s motion, the following exchange occurred:
THE COURT: All right. We are on the record in
2023CRB00293, State of Ohio versus Sean J. Kraynak.
Present in Court is Police Prosecutor Dennis Coyne, with
Burton Police Officer Michael Lewis. Also present in Court is
Defendant, Sean J. Kraynak.
Previously, Mr. Kraynak was represented by Attorney Dennis
Ibold, but was granted permission to withdraw as counsel.
This matter comes before the Court on a violation of bond
conditions, correct, Prosecutor Coyne?
MR. COYNE: It’s violating protection order, your Honor.
THE COURT: But I mean, oh, we’re having the whole trial
today. I thought it was just on the bond conditions. Forgive
me.
MR. COYNE: Well, so Judge, I think Mr. Ibold filed the motion.
THE COURT: To dismiss, correct.
MR. COYNE: And that’s what we’re here for today, to figure
out whether or not contact was actually made, because if you
determine it wasn’t then I’ll just dismiss the case.
THE COURT: Right.
Let the record stand corrected. It is on the full hearing on the
Motion to Dismiss, which would go to the facts of the case, as
well as to the elements of the crime as charged.
{¶8} Thereafter, the trial court inquired of Kraynak regarding whether he wished
to proceed pro se. Subsequently, the following exchange occurred:
THE COURT: Okay. Forgive me, then, Prosecutor Coyne,
before I interrupted you, is there any opening statement on
behalf of the State?
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MR. COYNE: Judge, I’ll just reiterate that we’re here to
determine whether or not the Court believes contact was
made, because that’s what the motion is based on, the fact
that they don’t believe there was sufficient contact to violate
the order.
THE COURT: Okay. We’ll see what the evidence me[te]s out.
{¶9} Thereafter, Kraynak made an opening statement. The state then called the
responding officer and the protected person as witnesses. The testimony indicated that,
on March 25, 2020, three years prior to the protected person obtaining the protection
order, Kraynak shared an image on Facebook and tagged the protected person in the
post. The image displayed an iceberg with a small portion of the iceberg visible above
water, and a much larger portion of the iceberg located below water. Text on the upper
portion of the iceberg reads, “How much you think I love you,” and text on the lower portion
of the iceberg reads, “How much I actually love you.” On April 10, 2023, Kraynak
commented on the March 2020 post with a green nauseated face emoji, and another
individual replied to the comment stating, “I know the feeling,” and then also posting a
green nauseated face emoji. The same day, the protected person obtained the protection
order. Law enforcement subsequently informed her that Kraynak was served with the
protection order that night, and Kraynak did not come to pick up the son he shares with
the protected person, which he would otherwise have been scheduled to do on April 10,
2023. On April 11, 2023, the protected person blocked Kraynak on Facebook. Shortly
after she blocked Kraynak, Kraynak again commented on his March 2020 post as follows:
I get filing a protection order to hurt me and spite me, but to
include my son in it so [name omitted] can’t even visit his
brother is the lowest form of low. This is “how evil you look
versus how evil you actually are[.]”
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The protected person did not receive a notification of Kraynak’s comment from the
Facebook application. However, a friend of the protected person alerted the protected
person to the comment and forwarded a screenshot to her. Upon receiving the
screenshot, the protected person contacted law enforcement. Screenshots of the
comments and the original post were identified and introduced as exhibits.
{¶10} After the state’s exhibits were admitted without objection, the state rested,
and the court ruled as follows:
THE COURT: The Court is granting the Motion to Dismiss
based upon the fact that the evidence produced on State’s
Exhibit 2, that Officer Lewis testified, do not show any nexus
with [the protected person]’s name on it.
There is no evidence when Mr. Kraynak was served or by
whom.
As the Court has indicated, the Motion to Dismiss is granted.
You’re free to go, Mr. Kraynak.
{¶11} On appeal, the state maintains that the trial court “determined there was no
contact made by the defendant to the protected party which is the main issue for this
case. Criminal Rule 12(C) specifically prohibits the trial of the general issue during a
motion hearing.” The state contends that the motion “should have been denied without a
hearing because the court did not have the authority to dismiss the case or make a ruling
on the main issue in the case.”
{¶12} However, an appellant generally forfeits arguments not presented to the
trial court. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21;
State v. Turner, 12th Dist. Clermont No. CA2018-11-082, 2021-Ohio-541, ¶ 13. Here, the
state did not file a written response to the motion to dismiss, nor did it present any
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argument at hearing, addressing the propriety of the trial court proceeding to determine if
contact was made for purposes of the aggravated menacing statute on a Crim.R. 12(C)
motion. Thus, the state has forfeited this argument for purposes of appeal.
{¶13} Further, when explaining the nature of the hearing to the court, as set forth
above, the prosecutor stated, “that’s what we’re here for today, to figure out whether or
not contact was actually made, because if you determine it wasn’t then I’ll just dismiss the
case.” The prosecutor’s comments at the hearing appear to invite the court to determine
whether contact was made. “It is the well-settled rule that a party will not be permitted to
take advantage of an error which he himself invited or induced the trial court to make.”
Dardinger v. Anthem Blue Cross & Blue Shield, 98 Ohio St.3d 77, 2002-Ohio-7113, 781
N.E.2d 121, ¶ 122, quoting Lester v. Leuck, 142 Ohio St. 91, 92, 50 N.E.2d 145 (1943);
State ex rel. Johnson v. Ohio Adult Parole Auth., 95 Ohio St.3d 463, 2002-Ohio-2481,
768 N.E.2d 1176. As the state invited the court to determine whether sufficient evidence
of contact existed, it cannot now challenge the trial court proceeding to make that
determination.
{¶14} The state further maintains that the trial court should not have decided
whether there existed sufficient evidence of service of the protection order when ruling on
the Crim.R. 12(C) motion. However, given the trial court’s determination that there was
not sufficient contact to support the charge, any error in the trial court making a
determination as to service is harmless. See Crim.R. 52(A) (“Any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.”).
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{¶15} Accordingly, the state’s sole assigned error lacks merit.
{¶16} The judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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