State v. Fleming , 2023 Ohio 849 ( 2023 )

[Cite as State v. Fleming, 2023-Ohio-849.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220275
TRIAL NO. 22CRB-7556
Plaintiff-Appellee, :
vs. :
O P I N I O N.
ARIUS FLEMING, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: March 17, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Rebecca Barnett, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Arius Fleming appeals his conviction for violating
a protection order. Because the state did not present sufficient evidence that Fleming
was served with, shown, or informed by a legal authority about the final protection
order, we reverse Fleming’s conviction and discharge Fleming from further
prosecution.
I. Facts and Procedure
{¶2} On April 17, 2020, J.K., Fleming’s mother, filed a petition against him
for a civil stalking protection order under R.C. 2903.214. In accordance with R.C.
2903.214(D)(1), the trial court granted an ex parte order on the same day. On April
17, 2020, the ex parte order was personally served on Fleming by Hamilton County
Deputy Sheriff Tony Pritchett. The ex parte order remained effective until April 17,
2021.
{¶3} On May 6, 2020, the magistrate issued an interim protection order,
which was to expire on April 16, 2025. The magistrate’s interim order was journalized
on May 7, 2020. That order included the date of the upcoming final-order hearing and
also requested that the clerk serve the parties by mail. Other than the order itself,
there was no evidence at trial to indicate that the clerk actually mailed the order to
Fleming or to which address the order might have been sent.
{¶4} A full hearing on the final order was conducted on May 28, 2020.
Fleming did not appear. Following the hearing, the trial court issued a final order
adopting the civil protection order. The final order instructed the clerk to send a copy
to all parties who had appeared in the action via mail. There is no evidence that the
final civil protection order was ever personally served on Fleming.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Nearly two years later, on May 7, 2022, Fleming was charged with
violating the protection order. The trial court held a bench trial in June 2022. Deputy
Pritchett explained the procedure that he uses when serving a protection order and
testified that he personally served Fleming with the ex parte order, which expired on
April 17, 2021.
{¶6} J.K. testified that she told Fleming about the protection order “a lot of
times” and did so prior to the May 2022 incident. Her testimony did not indicate
which version of the protection order formed the basis of her conversations: the ex
parte order, the magistrate’s interim order, or the final order. She further testified
that, on the date of the incident, Fleming came to her home and got into a
“confrontation” with her other son, so she told Fleming to leave.
{¶7} Officer Morehead testified that he responded to J.K.’s home for an
allegation that Fleming was there with a knife and was behaving erratically. J.K. “came
running out of her apartment” upon Officer Morehead’s arrival, and Officer Morehead
took Fleming into custody.
{¶8} The trial court found Fleming guilty of violating the protection order.
Fleming was sentenced to 180 days in jail with 24 days credited, fined $250, and
encouraged to participate in mental-health and/or substance-abuse treatment. This
appeal followed.
II. Law and Analysis
A. There is no proof of service of the final order on Fleming.
{¶9} Fleming argues in his first assignment of error that the state failed to
prove beyond a reasonable doubt that Fleming was served with a final copy of the
protection order. He contends that his conviction for violating the protection order
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OHIO FIRST DISTRICT COURT OF APPEALS
was based on insufficient evidence, contrary to the manifest weight of the evidence,
and contrary to law.
1. The evidence of service was insufficient.
{¶10} The test for determining the sufficiency of the evidence is whether “after
viewing the probative evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt.” State v. MacDonald,
1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20
Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). It is a question of law for the court
to determine, and this court is not to weigh the evidence unless, after viewing the
evidence, it weighs heavily against conviction. Id. at ¶ 12.
{¶11} Fleming was charged with recklessly violating a protection order under
R.C. 2919.27. More specifically, the complaint contends that Fleming recklessly
violated the terms of a civil protection order issued by the trial court on April 29, 2020,
pursuant to R.C. 2919.26. However, no protection order was issued by the court on
April 29, 2020. The only protection orders issued against Fleming were (1) the ex
parte order issued on April 17, 2020, (2) the interim order issued on May 6, 2020, and
(3) the final order issued on May 28, 2020.
{¶12} In State v. Smith, the Ohio Supreme Court held that service of the civil
protection order on the defendant is an element the state must prove beyond a
reasonable doubt in any prosecution for violating a civil protection order under R.C.
2919.27(A). State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972, ¶ 28.
The court also held that service in the context of civil protection orders has the same
meaning as it does under the Ohio Rules of Civil Procedure. Id. at ¶ 21.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Civ.R. 4.1 provides that service may be made by (1) clerk via United
States certified or express mail, (2) personal service, or (3) residence service. Proof of
service is either a return receipt for certified mail, a signed receipt for commercial
service by the clerk, or an entry of process on the docket for personal or residential
service. Id.
{¶14} The state did present evidence that Fleming was personally served with
the ex parte protection order—which expired more than a year prior to the alleged
violation. The state, however, presented no evidence that Fleming was served with
either the interim or the final protection orders in accordance with Civ.R. 4.1. While
the interim and final orders contained instructions to the clerk to serve them by mail,
the state presented no evidence of either a return receipt for certified mail or an entry
of process on the docket in accordance with Civ.R. 4.1. Thus, there was insufficient
evidence that the final order of protection was served on Fleming.
{¶15} But this does not end the inquiry. R.C. 2919.27(D), which was enacted
in response to Smith, dispenses with the service requirement if the state proves both
that (1) the defendant was shown the protection order or a judge, magistrate, or law
enforcement officer informed him of it, and (2) the defendant recklessly violated the
terms of the order.
{¶16} The evidence was similarly insufficient to sustain the conviction under
this portion of the statute. J.K. testified that she told Fleming about the order prior to
the May 2022 incident, but there is no testimony that Fleming was ever shown a copy
of it or that a judge, magistrate, or law enforcement informed Fleming of it. The state
argues that Fleming was reckless about the possible existence of a final order, given
that he was served with the ex parte order. Even if we agreed, no amount of
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OHIO FIRST DISTRICT COURT OF APPEALS
recklessness voids the lack of required notice of the existence of the final order.
Fleming was not served with the order according to Civ.R. 4.1, nor was he shown a
copy of the order or informed of its terms by a person with relevant authority under
R.C. 2919.27(D). In the absence of this evidence, the state did not meet its burden of
proving service at trial. Therefore, Fleming’s conviction was based on insufficient
evidence. The first assignment of error is sustained.
{¶17} Because we have held that Fleming’s conviction was based on
insufficient evidence, we do not reach his argument that it was against the manifest
weight of the evidence.
2. The trial court erred by imposing a fine where it failed to announce it at
sentencing.
{¶18} Fleming argues in his second assignment of error that the trial court
erred by imposing a fine in the sentencing entry when it did not inform him of a fine
at sentencing. Because we have reversed Fleming’s conviction, this assignment of error
is moot and we do not address it.
Conclusion
{¶19} The evidence presented at trial was not sufficient to show that Fleming
recklessly violated the terms of the protection order, and his conviction was therefore
not supported by sufficient evidence. We reverse Fleming’s conviction as based on
insufficient evidence and he is discharged from further prosecution.
Judgment reversed and appellant discharged.
CROUSE, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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