State Must Prove Protection Order Was Served on Respondent Prior to Alleged Violation
The Supreme Court of Ohio ruled today that to sustain a conviction for violation of a civil protection order, the state must establish that it served the defendant with the order before the alleged violation.
The court’s 4-3 majority decision, authored by Justice Sharon L. Kennedy, reversed a ruling by the Tenth District Court of Appeals.
The case involved a civil Stalking or Sexually Oriented Offense Protection Order (SSOOPO) that was requested by Shasta Pickens of Columbus to prohibit contact with her by a male acquaintance, Robert Smith. Smith did not live with Pickens or have a key to her home.
The order, which barred Smith from coming within 500 feet of Pickens, was issued by the Franklin County Court of Common Pleas on an ex parte basis (without advance notice to or participation by Smith) on April 12, 2010. Pickens obtained a copy of the order on April 12. On that same day the county clerk of courts directed the Franklin County sheriff’s office to immediately serve a copy of the order on Smith at his residence.
Pickens testified that on a date she believed to be April 16, 2010, she showed Smith a copy of the protection order and told him it meant he was not allowed to be around her. At that time Smith had not been served with the order. On the morning of April 17, Pickens heard a loud noise in her basement. She opened the basement door and saw Smith coming up the stairs. Pickens testified that Smith grabbed her from behind around her neck and put her in a headlock. He attempted to choke her, and the two began to tussle. The altercation ended when Pickens’s 14-year-old son and his friend entered the house. However, Smith did not leave. Pickens called 911, and Columbus police officers responded. Smith attempted to flee, but the officers apprehended and arrested him.
The return-of-service portion of the clerk of court’s order to serve reflects that a deputy sheriff personally served Smith with the protection order on the same day as the altercation. The state does not refute Smith’s contention that the order was not delivered to him until after the incident occurred.
On April 27, 2010, Smith was indicted for aggravated burglary, a misdemeanor charge of violating a protection order or consent agreement, domestic violence, and resisting arrest. The charges were tried to a jury, which found Smith guilty of aggravated burglary, violating a protection order, and resisting arrest.
Smith appealed his conviction for violating a protection order, arguing that the state had not proved the necessary element that he had “recklessly” disobeyed the order because it had not shown that he had been served with the order before the incident that led to his arrest. The Tenth District Court of Appeals affirmed Smith’s conviction, holding that “(s)ervice of the protection order on the defendant is not an element of the crime of violating a protection order as defined in R.C. 2919.27(A).” The court of appeals went on to rule that the evidence was sufficient to permit the jury to conclude that Smith knew of the order, knew of the risk that his conduct would violate the order, and acted recklessly by disregarding that risk.
Smith sought and was granted Supreme Court review of the Tenth District’s ruling.
Writing for the majority in today’s Supreme Court decision, Justice Kennedy agreed with Smith’s argument that the statute that criminalizes failure to comply with a civil protection order, R.C. 2919.27, specifically requires that the order must have been “issued pursuant to Section … 2903.214 of the Revised Code,” and that Section 2903.214 requires the issuing court to “direct that a copy of the order be delivered to the respondent (person subject to the order) on the same day that the order is entered.”
Applying that legal analysis to the facts of this case, Justice Kennedy wrote: “A plain reading of R.C. 2919.27(A)(2) … demonstrates that it incorporates the requirements of R.C. 2903.214. Therefore, to prove a violation of R.C. 2919.27(A)(2), the state must prove, beyond a reasonable doubt, all requirements of R.C. 2903.214, including the requirement that the order be delivered to the defendant.”
“The legislature used the words ‘delivery’ and ‘delivered’ in R.C. 2903.214(F)(1). R.C. Chapter 2903 does not define delivery, so we seek guidance from other sources. Black’s Law Dictionary (9th Ed.2009) defines ‘delivery’ as ‘[t]he formal act of transferring something, such as a deed; the giving or yielding possession or control of something to another.’ ... Giving effect to the words used in the first sentence of R.C. 2903.214(F)(1), ‘[t]he court shall cause the delivery * * * to the respondent,’ we hold that it mandates that the court bring about a transfer of possession of a copy of the SSOOPO to the respondent. The statute requires more than just the court’s issuing the (protection order) and ordering its delivery to the respondent. It requires that the order actually be delivered.”
“To interpret delivery to a respondent as requiring something less than service ignores the mandate of R.C. 2901.04(A) that ‘sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.’
“Because evidence of compliance with the delivery requirement of R.C. 2903.214(F)(1) before the alleged offense is essential to establishing a violation of R.C. 2919.27(A)(2), we hold that the evidence was insufficient to sustain Smith’s conviction pursuant to R.C. 2919.27(A)(2). We make this determination mindful of the importance of protection orders. A violation of a properly issued SSOOPO must not be countenanced. However, we cannot ignore the defendant’s right to have the SSOOPO served in conformity with the law. R.C. 2903.214(F)(1) requires service upon a respondent. Without proof that service was achieved, a conviction for violating R.C. 2919.27(A)(2) cannot stand.”
The majority opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell and William M. O’Neill.
Justice Judith Ann Lanzinger entered a dissent, joined by Chief Justice Maureen O’Connor and Justice Judith L. French. Looking at the exact language of the statute defining the crime, Justice Lanzinger wrote: “The elements that the state must prove beyond a reasonable doubt are that on April 17, 2011, in Franklin County, Smith recklessly violated a civil protection order issued under R.C. 2903.214. Proof of service or delivery is not needed for a conviction.”
“That is not to say that service may not be relevant in a specific case. Service may indeed be relevant in determining whether there was proof beyond a reasonable doubt that the defendant acted recklessly. The state must prove a mens rea of recklessness--whether a defendant had knowledge of the order’s existence and yet disregarded it. … Here, however, Pickens gave testimony that, if believed, proved that she told Smith she had obtained an order and told him what it said. He ignored the protection order to stay away from Pickens and thereby violated it. I respectfully dissent and would hold that service of the protection order on the defendant is not an element of the crime of violating a protection order as defined in R.C. 2919.27(A).”
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2012-0239. State v. Smith, Slip Opinion No. 2013-Ohio-1698.
Franklin App. No. 11AP-512, 2011-Ohio-6730. Judgment reversed and cause remanded.
Pfeifer, O’Donnell, Kennedy, and O’Neill, JJ., concur.
O’Connor, C.J., and Lanzinger and French, JJ., dissent.
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