State v. Hart , 2024 Ohio 2037 ( 2024 )


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  • [Cite as State v. Hart, 
    2024-Ohio-2037
    .]
    IN THE COURT OF APPEALS OF OHIO
    ELEVENTH APPELLATE DISTRICT
    ASHTABULA COUNTY
    STATE OF OHIO,                                  CASE NO. 2023-A-0070
    Plaintiff-Appellee,
    Criminal Appeal from the
    - vs -                                  County Court, Eastern District
    THOMAS MICHAEL HART,
    Trial Court No. 2023 CRB 00084 E
    Defendant-Appellant.
    OPINION
    Decided: May 28, 2024
    Judgment: Reversed; conviction vacated
    Colleen M. O’Toole, Ashtabula County Prosecutor, and Mark Majer, Assistant
    Prosecutor, 25 West Jefferson Street, Ashtabula, OH 44047 (For Plaintiff-Appellee).
    Sean P. Martin, 113 North Chestnut Street, Suite A, Jefferson, OH 44047 (For
    Defendant-Appellant).
    EUGENE A. LUCCI, P.J.
    {¶1}     Appellant, Thomas Michael Hart, appeals the judgment entry imposing
    sentence following a bench trial wherein the trial court found him guilty of violating a
    protection order. We reverse and vacate Hart’s conviction.
    {¶2}     In 2023, a complaint was filed charging Hart with violating a protection
    order, a first-degree misdemeanor, in violation of R.C. 2919.27. Hart pleaded not guilty,
    and the case proceeded to bench trial.
    {¶3}     The trial court found Hart guilty and proceeded to sentencing.       On
    November 20, 2023, the trial court issued an entry sentencing Hart to 180 days of
    confinement, fully suspended, a $100.00 fine, one year of non-reporting probation, and
    no contact with the petitioner named in the protection order.
    {¶4}   In his sole assigned error, Hart maintains:
    {¶5}   “Appellant’s conviction fell against the manifest weight of the evidence and
    sufficiency of the evidence.”
    {¶6}   Hart challenges the manifest weight and sufficiency of the evidence
    supporting service of the protection order to support a conviction under R.C. 2919.27.
    We do not address the weight of the evidence, because, for the reasons addressed below,
    we conclude that Hart’s conviction was not supported by sufficient evidence.
    {¶7}   The question of whether sufficient evidence supports the conviction “is a
    test of adequacy,” which we review de novo. State v. Thompkins, 
    78 Ohio St.3d 380
    ,
    386, 
    678 N.E.2d 541
     (1997). “In a sufficiency-of-the-evidence inquiry, the question is
    whether the evidence presented, when viewed in a light most favorable to the
    prosecution, would allow any rational trier of fact to find the essential elements of the
    crime beyond a reasonable doubt.” State v. Dent, 
    163 Ohio St.3d 390
    , 
    2020-Ohio-6670
    ,
    
    170 N.E.3d 816
    , ¶ 15, citing State v. Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991),
    at paragraph two of the syllabus.
    {¶8}   The trial court convicted Hart of violating R.C. 2919.27, which provides, in
    relevant part, “(A) No person shall recklessly violate the terms of any of the following: * *
    * (2) A protection order issued pursuant to section * * * 2903.214 of the Revised Code * *
    *.”   With respect to the service issue presented in this appeal, pursuant to R.C.
    2903.214(F)(1), “The court shall cause the delivery of a copy of any protection order that
    is issued under this section to the petitioner, to the respondent, and to all law enforcement
    2
    Case No. 2023-A-0070
    agencies that have jurisdiction to enforce the order. The court shall direct that a copy of
    the order be delivered to the respondent on the same day that the order is entered.”1
    Accordingly, the Ohio Supreme Court has held that “[t]o sustain a conviction for a violation
    of a protection order pursuant to R.C. 2919.27(A)(2), the state must establish, beyond a
    reasonable doubt, that it served the defendant with the order before the alleged violation.”
    State v. Smith, 
    136 Ohio St.3d 1
    , 
    2013-Ohio-1698
    , 
    989 N.E.2d 972
    , ¶ 28.
    {¶9}    Subsequent to the Ohio Supreme Court’s decision in Smith, in 2017, the
    General Assembly revised R.C. 2929.27. Division (D) of that section now provides:
    In a prosecution for a violation of this section, it is not
    necessary for the prosecution to prove that the protection
    order or consent agreement was served on the defendant if
    the prosecution proves that the defendant was shown the
    protection order or consent agreement or a copy of either or a
    judge, magistrate, or law enforcement officer informed the
    defendant that a protection order or consent agreement had
    been issued, and proves that the defendant recklessly
    violated the terms of the order or agreement.
    R.C. 2919.27(D). Thus, the state must prove that, prior to the alleged reckless violation
    of the protection order, (1) service of the protection order was completed on the
    defendant, (2) the protection order was shown to the defendant, or (3) a judge, magistrate,
    or law enforcement officer informed the defendant that the order had been issued.
    {¶10} Here, at trial, the state presented the testimony of the protected person and
    the responding officer. This testimony indicated that Hart and the protected person own
    adjoining parcels of land. In November 2022, the protected person obtained a five-year
    1. On appeal, Hart relies on R.C. 3113.31(F)(1) as the service provision applicable to the underlying
    protection order in this case. However, R.C. 3113.31 pertains to domestic violence civil protection orders.
    Here, the underlying protection order is a civil stalking protection order issued pursuant to R.C. 2903.214.
    Nonetheless, the provisions of R.C. 2903.214(F)(1) and R.C. 3113.31(F)(1) contain substantively the same
    service requirements.
    3
    Case No. 2023-A-0070
    civil stalking protection order against Hart in the Ashtabula County Court of Common
    Pleas following a full hearing. A certified copy of the protection order was admitted into
    evidence. Therein, the protection order notes that Hart did not appear at the full hearing,
    but he had been served. Among other provisions, the protection order prohibits Hart from
    initiating or having any contact with the protected person. The protection order instructs
    the clerk to serve a copy of the order upon Hart pursuant to Civ.R. 65.1. Although the
    form contains a section where the clerk may designate the date that the parties were
    served the order in accordance with Civ.R. 5(B) and 65.1(C)(3), this portion of the
    protection order is not completed.
    {¶11}   The testimony of the state’s witnesses further provides that, on February
    28, 2023, the protected person was walking on her property when she observed Hart pull
    into his driveway. When Hart was approximately 150 feet away from the protected
    person, he exited his vehicle, made eye contact with the protected person, and said, “Get
    the fuck out of here.” As a result, the protected person reported a violation of the
    protection order to law enforcement.
    {¶12} The deputy who responded to the call testified that he confirmed that a
    protection order was in place through LEADS. The deputy further testified that he learned
    through LEADS that Hart had been served the protection order in 2022. During the
    deputy’s testimony, he identified a certified copy of a completed Ohio Supreme Court
    Form 10-A (“10-A Form”), which is a notice of the protection order to the National Crime
    Information Center. The 10-A Form is signed by a magistrate of the court that issued the
    protection order and was admitted into evidence. The 10-A Form contains a checkmark
    box followed by: “Service Completed (Law Enforcement Agency: If unchecked, presume
    4
    Case No. 2023-A-0070
    Service Unknown).” The box that precedes this statement is marked.           The deputy
    maintained that, based on his understanding of the form, the marked box would indicate
    that Hart was served a copy of the protection order.
    {¶13} Following the testimony of these witnesses, the state rested, and the
    defense moved for acquittal under Crim.R. 29. In partial support, the defense maintained
    that there was no evidence that Hart was aware of the existence of the protection order.
    The trial court denied the motion.
    {¶14} Thereafter, the defense presented its case, which included Hart’s
    testimony. Hart did not dispute his verbal contact with the protected person on February
    28, 2023. However, Hart maintained that he had never seen the protection order issued
    in this case until defense counsel provided it to him in May 2023, after the incident at
    issue. Hart testified that he does not have United States Postal Service delivered to his
    house and does not have a P.O. Box. He further indicated that he had never received
    certified mail from the Ashtabula County Court of Common Pleas and had not ever been
    personally delivered anything by the sheriff’s department. On cross-examination, Hart
    confirmed that he had learned from police officers who came to his house after the
    incident at issue that the protected person had obtained a “TPO” against him.
    {¶15} After the defense rested, it renewed its Crim.R. 29 motion. With respect to
    the state’s evidence of service of the protection order, the following exchange occurred
    between the court and the state:
    THE COURT: -- respond to the Rule 29.
    [THE STATE]: Yes, Your Honor.
    So, here’s what we do know today with respect to this service
    issue that has been alleged and has been raised as grounds
    5
    Case No. 2023-A-0070
    for dismissal. When you look at the actual Protection Order
    itself, it says that Respondent did not appear but was served,
    meaning that he was served notice of the hearing. That didn’t
    just get put in the Protection Order. Courts take service very
    seriously.
    And I practice in our Civil Division. For example, I do things
    like Health Department hearings and things like that. One of
    the first things the Judge checks for is, was the other party
    served before you’ve even had a hearing? The Judges
    upstairs take that very seriously.
    THE COURT: Okay.
    [THE STATE]: So, this hearing would not have happened if he
    was not placed on notice of the hearing.
    Now, with respect to the actual Order, I do agree with [defense
    counsel] that someone would have to have knowledge of an
    order to be able to violate the order. What we do know is, in
    State’s Exhibit 1 [(Form 10-A, notice of protection order to
    NCIC)], there is a box here marked “Service Completed”.
    That also does not just get marked. Again, because of the
    severity and the consequences of violating these kinds of
    orders, these things must be taken very seriously, so I direct
    that to the Court’s attention.
    Additionally, we heard testimony today from the deputy. I
    asked him if he had any way to know if the Defendant was
    served. He indicated that he looked at the LEADS and he saw
    where there was an entry that the Defendant was served a
    copy of the Order. Again, that would not just get inputted by
    itself unless it was the case.
    The State does believe that it has proven its case beyond a
    reasonable doubt that there was knowledge of this Order and
    that there was a violation of the Order. I’ll get more into that
    in closing. But in terms of where we are at today, Your Honor,
    again, we should be able to move forward to closing remarks
    because for the reasons I’ve just outlined; that there is -- one
    of the exhibits that the State referenced where service was
    marked, otherwise completed, and the deputy’s credibility
    (sic.) testimony that he reviewed the LEADS and saw where
    there was service.
    6
    Case No. 2023-A-0070
    THE COURT: And it is your contention that he did receive
    service of the hearing but did not appear, and it’s because he
    did not appear that he didn’t have knowledge of the additional
    restraints?
    [THE STATE]: It’s my position that he -- he never should have
    talked to her, Your Honor. He never -- he clearly would have
    had knowledge of both the hearing and the Order itself.
    THE COURT: Okay.
    [THE STATE]: Service completed on this form means he was
    served a copy of the Order.
    THE COURT: Okay. Before I rule on your Rule 29, I’m going
    to step out for a moment.
    (Off the record.)
    THE COURT: Okay.
    [The state], can you find me the proof of service that is
    executed by the Sheriff’s Department when they served the
    Defendant, or served somebody who is being noticed of a
    CPO or TPO?
    [THE STATE]: With respect to this particular case, Your
    Honor, I did try to locate that particular return of service and
    was unable to do so. However, as I did indicate, there are
    forms marked for service, and it was inputted in LEADS.
    Again, my position is that those things do not just otherwise
    get inputted in LEADS unless they were served. Again, we’re
    looking at a paper process here, Your Honor, and,
    unfortunately, it seems, you know, people are not perfect.
    Um, the State’s position would be that there is clearly a return
    of service that must have existed that we are unable to locate
    at this time, but, again, it was inputted into the proper
    databases and marked on it was served. It was signed off on
    here, on Form 10-A, that service was complete. Our position
    is that that is testimony and evidence that would substantiate
    service.
    THE COURT: Well, I wrote down here in the very beginning
    of this trial that there were two proofs of service before the
    7
    Case No. 2023-A-0070
    violation, LEADS, and the TPO checkbox NCIC. Did you
    finish arguing your Rule 29?
    [THE STATE]: I don’t have anything else to add --
    THE COURT: Okay.
    [THE STATE]: -- to that otherwise, Your Honor.
    THE COURT: Okay. Well, again, I am going to deny the Rule
    29, which leaves it squarely in my -- the decision squarely in
    my lap.
    {¶16} Thereafter, the parties proceeded to closing argument. The trial court then
    found Hart guilty and proceeded directly to sentencing.
    {¶17} On appeal, Hart maintains that the evidence did not support that he was
    served with the protection order or that he had constructive notice of the protection order
    as provided in R.C. 2919.27(D). The state responds that it demonstrated service of the
    protection order through the deputy’s testimony that service was noted in LEADS and
    through the completed 10-A Form. Because the state does not dispute that there exists
    no evidence of the circumstances contained in R.C. 2919.27(D) that would relieve it of
    producing evidence of service, we limit our discussion accordingly.
    {¶18} As set forth above, where R.C. 2919.27(D) does not apply, “the state must
    establish beyond a reasonable doubt that it served the defendant with the order before
    the alleged violation.” Smith, 
    2013-Ohio-1698
    . The service of the protection order “must
    follow the requirements of the Rules of Civil Procedure.” Smith at ¶ 21, citing R.C.
    2903.214(G) (“Any proceeding under this section shall be conducted in accordance with
    the Rules of Civil Procedure * * *.”).   With respect to service of protection orders, Civ.R.
    65.1(C) provides:
    8
    Case No. 2023-A-0070
    (1) Service by Clerk. The clerk shall cause service to be made
    of a copy of the petition, and all other documents required by
    the applicable protection order statute to be served on the
    Respondent and, if applicable, on the parent, guardian, or
    legal custodian of the Respondent.
    (2) Initial Service. Initial service, and service of any ex parte
    protection order that is entered, shall be made in accordance
    with the provisions for personal service of process within the
    state under Civ.R. 4.1(B) or outside the state under Civ.R.
    4.3(B)(2). Upon failure of such personal service, or in addition
    to such personal service, service may be made in accordance
    with any applicable provision of Civ.R. 4 through Civ.R. 4.6.
    (3) Subsequent Service. After service has been made in
    accordance with division (C)(2) of this rule, any additional
    service required to be made during the course of the
    proceedings on Respondent and, if applicable, on the parent,
    guardian, or legal custodian of Respondent, shall be made in
    accordance with the provisions of Civ.R. 5(B).
    See also 2016 Staff Notes to Civ.R. 65.1 (“The plain language of division (C)(3) of this
    rule indicates that subsequent service in civil protection order proceedings after the
    petition and ex parte order has been served, including service of a protection order
    entered after full hearing, must follow Civ.R. 5(B).”). But see State v. Fleming, 1st Dist.
    Hamilton No. C-220275, 
    2023-Ohio-849
    , ¶ 14 (holding that, although Fleming was
    personally served with an ex parte protection order, which had expired, “[t]he state * * *
    presented no evidence that Fleming was served with either the interim or the final
    protection orders in accordance with Civ.R. 4.1”).
    {¶19} In our review of the evidence of service of the protection order, we are
    mindful that Hart did not object to the deputy’s testimony regarding the service notation
    on LEADS or to the admission of the certified copy of the 10-A Form noting completed
    service. Nor does he develop an argument on appeal regarding the propriety of the trial
    court’s consideration of this evidence for purposes of determining whether service of the
    9
    Case No. 2023-A-0070
    protection order was completed. Instead, he maintains that this evidence is insufficient
    to demonstrate the required service and that the determination that service was properly
    completed is against the weight of the evidence.
    {¶20} We agree with Hart to the extent that this evidence was insufficient to
    demonstrate service. Even when viewing this evidence in the light most favorable to the
    state, it demonstrates only that a magistrate of the issuing court, and whoever entered
    the relevant data into LEADS, believed service of the protection order was complete.
    However, no underlying facts supporting such beliefs were produced into evidence.
    Neither the 10-A Form nor the deputy’s testimony regarding the LEADS notation provide
    any evidence as to the manner or date of service by the clerk to allow a finder of fact to
    determine whether the service comported with the Civil Rules.      Additionally, as set forth
    above, although the protection order contained instructions to the clerk to serve the order
    on Hart, the portion of the form indicating completed service by the clerk was left blank,
    and the state affirmatively acknowledged that it could not locate a “return of service” for
    the protection order.
    {¶21} Last, we note that the state further maintains that Hart was served with the
    petition for a protection order, and, thus, he was on notice of the proceedings, chose not
    to attend the full hearing on the protection order, and acted recklessly in his
    communication with the protected person. The state then attaches a copy of the return
    of service of the petition for a civil protection order.
    {¶22} Although we will not now consider evidence not submitted to the trial court
    on an element of the offense, we note that the state’s position that service of the petition
    put Hart on notice that his conduct may be restrained is misplaced. A similar argument
    10
    Case No. 2023-A-0070
    was rejected in Smith, as the issue is whether the protection order was served in
    accordance with R.C. 2903.214(F)(1), such that it was issued “pursuant to” that section
    for purposes of R.C. 2919.27(A)(2). See Smith, 
    2013-Ohio-1698
    , at ¶ 16.
    {¶23} Accordingly, the state failed to produce sufficient evidence that service of
    the protection order was completed in accordance with the Civil Rules or that it was
    relieved of producing such evidence due to proof of one of the circumstances described
    in R.C. 2919.27(D). Thus, Hart’s sole assigned error has merit. In so holding, we
    emphasize that our opinion and judgment have no effect on the ongoing validity of the
    protection order.
    {¶24} Consequently, the trial court’s judgment is reversed, and the conviction is
    vacated.
    MARY JANE TRAPP, J.,
    ROBERT J. PATTON, J.,
    concur.
    11
    Case No. 2023-A-0070
    

Document Info

Docket Number: 2023-A-0070

Citation Numbers: 2024 Ohio 2037

Judges: Lucci

Filed Date: 5/28/2024

Precedential Status: Precedential

Modified Date: 5/28/2024