State v. Doss , 2019 Ohio 2247 ( 2019 )

[Cite as State v. Doss, 2019-Ohio-2247.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-41
:
v. : Trial Court Case No. 2018-CRB-493
:
JOSEPH H. DOSS : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 7th day of June, 2019.
...........
ROGER A. STEFFAN, Atty. Reg. No. 0086330, Assistant Municipal Prosecutor, City of
Urbana, 200 South Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, 4 West Main Street, Suite
707, Springfield, Ohio 45502
Attorney for Defendant-Appellant
.............
HALL, J.
-2-
{¶ 1} Joseph Doss appeals his conviction for violating a civil protection order. We
determine the evidence was insufficient to establish that Doss was properly notified of the
civil protection order before he was alleged to have violated it, and we further conclude
the trial court’s failure to instruct the jury on the element of notice of the protection order
was plain error. We reverse the judgment of the trial court and vacate the conviction.
I. Facts and Procedural History
{¶ 2} On May 21, 2018, Doss’s wife, Holly, was granted an ex parte domestic
violence civil protection order (CPO) against him. (Holly had recently initiated divorce
proceedings.) The CPO barred Doss from initiating or having any contact with Holly,
including by way of text messages. At 2:28 a.m., on June 7, Doss sent Holly a text
message saying, “I sure do miss you baby.” Holly immediately called the police, and Doss
was arrested and charged with violating the CPO.
{¶ 3} The case was tried to a jury in Champaign County Municipal Court. Holly
testified that the CPO was issued in the morning, and that in the afternoon she texted
Doss that his daughter was trying to call him, because it was her birthday. After first
responding that he was on the phone, Doss texted back: “I’m free now. However, perhaps
due to the apparent level of emotional distress that caused [the child], perhaps we’s [sic]
see fit to wait until some more orders are in-place regarding visitation so I can say with
certainty when I will be able to see them. Otherwise, please precede [sic] the girl’s phone
calls[.]” (Exhibit B; Tr. 96). Holly testified that the next text message she received from
Doss was the June 7 message. She said that before the CPO was issued on May 21, she
would receive ten to twenty messages a day from him. Holly testified that she did not tell
Doss about the CPO. She said that she did not know whether Doss was served with the
-3-
CPO and could not recall any other hearing about the order. The CPO itself has no proof-
of-service. It states only instructions that Doss was to be served and that he could be
found at 451 Scioto Street in Urbana.
{¶ 4} Officer Hiltibran of the Urbana Police Department was the officer who
responded to Holly’s initial call. He testified that the first thing Holly said to him when he
arrived was that she wanted Doss charged. Officer Hiltibran took a picture of the June 7
text message and confirmed that there was a CPO. He testified that he then went to 179
Camelot Street in Urbana, where he found Doss, told him about the CPO, and arrested
him.
{¶ 5} After the state rested, Doss moved for an acquittal under Crim.R. 29, arguing
that the evidence was insufficient to prove that he had proper notice of the CPO. The trial
court overruled the motion and gave the case to the jury. The court did not instruct the
jury on the element of the offense that the state was required to prove that Doss was
either served with the protective order, shown the order, or informed of it by proper
authorities. R.C. 2919.27(D). The jury returned a guilty verdict. Before sentencing, Doss
renewed his motion for acquittal, which the trial court also overruled. The court sentenced
him to a jail term and ordered him to pay a fine and costs.
{¶ 6} Doss appeals.
II. Analysis
{¶ 7} Doss’s sole assignment of error alleges:
The conviction violates Defendant-Appellant’s right to due process
as guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution and the Art. I, Sec. XIV of the Ohio Constitution because
-4-
the evidence was insufficient to prove every essential element of the offense
charged beyond a reasonable doubt where the prosecution failed to show
service or notice of an ex parte protection order and the trial court failed to
instruct the jury of the same.
Effectively, the assignment raises two related issues: whether the evidence was sufficient
to find Doss had proper notice of the protective order and whether the trial court’s failure
to instruct the jury on the notice element constituted reversible error.
A. Sufficiency of the evidence
{¶ 8} The standard for reviewing a sufficiency challenge is a familiar one: “An
appellate court’s function when reviewing the sufficiency of the evidence to support a
criminal conviction is to examine the evidence admitted at trial to determine whether such
evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 9} Doss was convicted of violating R.C. 2919.27(A)(1), which states that “[n]o
person shall recklessly violate the terms of * * * [a] protection order issued * * * pursuant
to section * * * 3113.31 of the Revised Code.” R.C. 3113.31 requires that a copy of any
protection order be issued to the respondent, among other, and further requires the
issuing court to “direct that a copy of an order be delivered to the respondent on the same
day that the order is entered.” R.C. 3113.31(F)(1). These service requirements are
incorporated into R.C. 2919.27(A)(1), and the Supreme Court has held that service of the
-5-
protection order on the defendant is an element of the offense. See State v. Smith, 136
Ohio St. 3d 1, 2013-Ohio-1698, 989 N.E.2d 972, ¶ 28. However, after Smith, R.C. 2919.27
was amended so that proof of service alone is not required to show a violation. R.C.
2919.27(D) now includes that “[i]n a prosecution for a violation of this section, it is not
necessary for the prosecution to prove that the protection order * * * was served on the
defendant if the prosecution proves that the defendant was shown the protection order
* * * or a copy * * * or a judge, magistrate, or law enforcement officer informed the
defendant that a protection order * * * had been issued, and proves that the defendant
recklessly violated the terms of the order * * *.” Consequently, to show a violation of R.C.
2919.27(A)(1), the state must prove that the defendant recklessly violated the terms of
the protection order, and that the defendant was served with the order or otherwise was
notified about the order in one of the two ways described in R.C. 2919.27(D).
{¶ 10} Here, Doss argues that the evidence was insufficient to prove that he was
properly notified about the CPO. In our opinion, even when viewing the evidence in a light
most favorable to the state, a rational trier of fact could not have found proper notification,
and the evidence was insufficient to support that element.
{¶ 11} There was no direct evidence Doss was served with the CPO. There was
no direct evidence that Doss was shown the CPO. There was no direct evidence that
Doss was informed by a judge, magistrate, or law enforcement officer that the CPO had
been issued. While Officer Hiltibran told Doss about the CPO at his arrest, that was after
Doss had already violated the order. The evidence did not reveal who, if anyone, showed
Doss the order or who informed him of it. The last page of the CPO instructed the
Champaign County Sheriff to deliver a copy of the CPO to Doss, but there was no
-6-
certificate of service showing that the sheriff did so. One would believe it would have been
relatively easy for the state to show service simply by introducing a certificate of service
signed by the Sheriff or by calling the person who accomplished the task as a witness.
But they did not.
{¶ 12} At best, the evidence could have been interpreted to suggest that Doss
knew that the CPO had been issued. Holly testified that before the CPO was issued, she
would receive ten to twenty text messages a day from Doss. But the first unsolicited
message he sent after the CPO had been issued (more than two weeks later) was the
June 7 message. Also, shortly after the CPO was issued, on the afternoon of the same
day, Doss told Holly in a text message, “perhaps we see fit to wait until more orders are
in place regarding visitation so I can say for certainty when I will be able to see them.”
(Ex. B, Tr. 96). According to Holly, the CPO was the only order in effect at that time. Also,
the CPO ordered the Sheriff to deliver the CPO to Doss. In addition, when Officer Hiltibran
confronted Doss on June 7, the officer asked whether Doss had sent the text. Doss
hesitated and then said he did not remember. The jury might have inferred from all these
circumstances that Doss was actually aware he was prohibited from contacting Holly. But
actual awareness of the order was not enough.
{¶ 13} In State v. Smith, 136 Ohio St. 3d 1, 2013-Ohio-1698, 989 N.E.2d 972, the
petitioner testified she had shown Smith a copy of the protective order and told him he
was not allowed to be around her. The next day, he entered her house, attempted to
choke her, and engaged in a “tussle.” Smith had not yet been formally served with the
order. The Smith court of appeals decided that service of the order was not an element
of the offense and that knowledge of the order was sufficient to have found Smith had
-7-
violated it. But the Supreme Court determined actual notice was not enough. The court
of appeals judgment was reversed, and the Supreme Court held “the state must establish,
beyond a reasonable doubt, that it served the defendant with the order before the alleged
violation.” Id. at syllabus. It was only after Smith that the two alternative methods of proof
were added to the statute in R.C. 2919.27(D). Actual knowledge is still not an alternative
to support a conviction.
{¶ 14} We conclude the evidence was insufficient to prove that Doss had been
served with the order, “was shown the protective order,” or that “a judge, magistrate, or
law enforcement officer informed the defendant that a protection order or consent
agreement had been issued.”
B. Jury instructions
{¶ 15} The trial court told the jury that to find Doss guilty it must find that he
“recklessly violated the terms of a Protection Order.” (Tr. 144). The court said nothing to
the jury about finding that Doss had proper notice of the CPO. It appears that neither the
parties nor the trial court followed the model instructions for this offense. Those
instructions, consistent with Smith and R.C. 2919.27(D), include the requirement that the
jury must also find “the defendant was (served) (shown the protection order or copy)
(informed by a [judge] [magistrate] [law enforcement officer] that the protection order was
issued) and recklessly violated the terms of the protection order.” Ohio Jury Instructions,
CV Section 519.27 (Rev. Oct. 14, 2017).
{¶ 16} Doss did not object to the omission of the element from the jury
instructions. But he argues that the trial court’s failure to instruct the jury about the notice
element was plain error.
-8-
{¶ 17} “Plain errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the court.” Crim.R. 52(B). Crim.R. 52(B) places
three limitations on a reviewing court’s determination of whether to correct an error that
was not raised below: (1) an error must have occurred; (2) the error must constitute an
“obvious defect” in the proceedings; and (3) the error must have affected the ultimate
outcome of the proceedings. State v. Martin, 154 Ohio St. 3d 513, 2018-Ohio-3226, 116
N.E.3d 127, ¶ 28.
{¶ 18} The state tacitly concedes that the trial court erred regarding instructions
but argues that the error was harmless. When the trial court has “failed to instruct the jury
as to all the elements of an offense, the error is harmless [only] if the ‘omitted element is
supported by uncontroverted evidence[.]’ ” State v. Meinke, 9th Dist. Lorain Nos.
15CA010738, 15CA010739, 2017-Ohio-7787, ¶ 20, quoting Neder v. United States, 527
U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). To add to the lack of instruction, we
note that the jury questioned when Doss had been notified about the CPO. During its
deliberations, the jury sent questions to the trial court, the first of which asked when Doss
was notified about the CPO. The trial court answered that the jury “must rely on what
information was or was not provided during the trial testimony. No (unintelligible) of
information can be allowed.” (Tr. 149). Defense counsel did not object. Nevertheless,
because we have already determined that evidence to support the element of service, or
proper alternative notice, is legally insufficient, on this record we conclude the failure to
instruct on that element constituted plain error.
III. Conclusion
{¶ 19} We sustain Doss’s assignment of error. The trial court’s judgment is
-9-
reversed, and the conviction is vacated.1
.............
WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
Roger A. Steffan
Regina Rosemary Richards
Hon. Gil S. Weithman
1. Nothing in this opinion changes the validity of the CPO which, unless otherwise
modified, remains in effect.