Case Summaries: Civil Protection Orders - Enforcement
Conviction For Violating A DV CPO Reversed Because CPO Had Not Been Journalized:
The court of appeals vacated defendant’s conviction for violating a protection order because the victim’s DV Consent Agreement CPO was not effective on August 1, 2009, the date of the alleged incident violating the CPO. The effective date of the CPO was not July 29, the date it was signed by the parties and the magistrate but August 5, 2009, when it was approved by the court and journalized. State v. Hamlett, 2010-Ohio-6605 (7th Dist., Mahoning, 12/29/2010).
Keywords: domestic violence, civil protection order, enforcement
Date: 3/28/11
Conviction For Violating A Protection Order Upheld Despite Lack Of Service Of DV CPO:
The court of appeals affirmed the defendant’s conviction for violation of a protection order despite the absence of service on the defendant by the time of the alleged violation. Uncontroverted testimony demonstrated that between November 21–28, 2007, months after the DV CPO had been entered, the victim received a message from her sister, who was informed of the message by defendant’s sister, who was given the message by defendant in a phone call from him. Defendant indicated in the message that he wanted $5,000 from the victim and for her to drop her protection order and her demand for child support, while in return, the defendant would promise to leave her alone. Therefore, “a reasonable factfinder could conclude beyond a reasonable doubt that defendant was aware of the existence of the protection order against him,” and he could “therefore be convicted of violating the terms of that protection order.” State v. Rutherford, 2009-Ohio-2071 (2nd Dist., Champaign, 5/01/2009).
Keywords: due process, enforcement, domestic violence, recklessness
Date: 3/28/11
Municipal Court Jurisdiction over Protection Order Violation—A municipal court had subject-matter jurisdiction over a defendant’s prosecution for violating a protection order, notwithstanding any contrary agreement between the defendant and a victim who had obtained the protection order. The protection order specifically stated that the sole remedy for violations thereof would be contempt of court before the common pleas court judge who signed the order. However, the territorial limits of the municipal court consisted of all of Franklin County, Ohio, and all areas within the corporate city limits of Columbus, and it was undisputed that the defendant committed the violation in the city of Columbus in Franklin County. State v. Myers, 2009-Ohio-4659 (10th Dist., Franklin, 9/08/09).
Keyword: enforce enforcement 2914.27
Date: 3/19/10
Defendant Violated Stay-Away Order—Sufficient evidence supported the finding that defendant recklessly violated a DV CPO, which prohibited him from being present within 500 feet of his former wife. Although the evidence did not indicate that defendant had any contact, or tried to have any contact, with his former wife during his visit to a nearby home, the defendant went to a residence two doors down from his former wife’s residence where he should have known that she was likely to be. The evidence further indicated that defendant was aware of the close proximity of the two homes. Conviction affirmed. State v. Stoner, 2009-Ohio-2073 (2nd Dist., Clark, 5/01/09).
Keyword: "civil protection order" enforce enforcement 2914.27
Date: 3/19/10
No Criminal Liability for Violating CPO Absent Proper Service or Actual Notice of Terms of CPO—Although defendant knew about the existence of an ex parte DV CPO issued against him, the evidence was insufficient to support the defendant’s conviction for violating the protection order where the defendant was not served with the order until five months after the alleged violation and the victim presented no evidence that defendant had actual notice of the terms of the order. Absent proper service or actual notice of the prohibited behavior, defendant could not be held criminally liable for disobedience of the order’s terms. Toledo v. Lyphout, 2009-Ohio-4596 (6th Dist., Lucas, 9/04/09).
Keyword: "lack of service" "due process" 2919.27
Date: 3/19/10
Actual Notice of CPO Sufficient for Conviction—Defendant’s conviction for violation of a protection order was supported by legally sufficient evidence. The uncontroverted testimony of the victim, the victim’s sister, and defendant’s sister demonstrated that, months after the protection order against defendant had been entered, the victim received a message from her sister, who was informed of the message by defendant’s sister, who was given the message by defendant in a phone call. Defendant indicated in the message that he wanted $5,000 from the victim and for her "to drop the protection order" and the demand for child support, while in return, defendant would promise to leave the victim alone. From that evidence, a reasonable fact finder could conclude beyond a reasonable doubt that defendant was aware of the existence of the protection order against him. Defendant could therefore be convicted under R.C. 2919.27 of violating the terms of that protection order. State v. Rutherford, 2009-Ohio-2701 (2nd Dist., Champaign, 5/01/09).
Keyword: "civil protection order" "due process" 2919.27
Date: 3/19/10
ACTUAL NOTICE OF TERMS OF CPO IS REQUIRED FOR CRIMINAL CONVICTION Of VIOLATION: The Sixth District Court of Appeals reversed appellant’s conviction in the Toledo Municipal court for violating a protection order. Although appellant was aware of the existence of the civil protection order (CPO), he had not been served with the CPO and did not receive actual notice of the terms contained within the CPO prior to commission of the alleged violation. Therefore, absent proper service or actual notice of the prohibited behavior, appellant could not be held criminally liable for disobedience of the order’s terms. City of Toledo v. Lyphout, 2009-Ohio-4596 (6th Dist., Lucas, 9/04/2009). Contra, State v. Rutherford, 2009-Ohio-2071, (2nd Dist., Champaign, 5/1/2009), State v. Bunch, 9th Dist. No. 20059 (9th Dist., Summit, 1/17/2001). In Rutherford and Bunch, supra, defendant’s knowledge of the existence of the protection order was sufficient for the court of appeals to affirm the defendants’ convictions.
Date: 12/9/09
Violation of Invalid CPO Is a Crime: The Court of Appeals affirmed the defendant’s conviction for recklessly violating a protection order (R.C. 2919.27) despite the fact that the Civil Stalking Protection Order (CSPO) was later invalidated because the defendant never received actual notice of the final hearing on the CPO petition. The invalidity of a protection order does not provide a defense to a willful violation of the order. At the time defendant violated the protection order, it had not yet been declared invalid, and thus his reckless violation of the protection order was a crime. State v. Eschrich, 2008-Ohio-29984 (Sixth Dist., Ottawa, 6/20/08).
Keyword: menacing by stalking
Date: 10/24/08
No Contact order In CPO Not Nullified By Subsequent Visitation order In Parties Divorce Decree: The Court of Appeals affirmed the defendants conviction of violating a protection order and rejected defendants argument that the "no contact" order in the domestic violence CPO was not violated because the divorce decree implied that contact with his former wife and child was necessary for visitation to take place at his former wife's discretion. (The husband had reasonable visitation without a specific visitation schedule.) The State conceded that the visitation order in the CPO was superceded by the divorce decree provisions pursuant to R.C. 3113.31(E)(3)(b), but the no-contact order for any other reason was not modified and was in effect at the time of the incident. Therefore, the defendant by leaving several messages on his former wife's digital answering machine violated the CPO. The messages were: "Check your door." "I love you, Justin, talk to you later." "I love you, Justin." and "Justin, I love you. Ill see you on your birthday." State v. Price, 2006-Ohio-3856 (2nd Dist., Montgomery, 7/28/06).
Keywords: civil protection order conflicting orders parenting time
Date: 4/4/2007
Respondent Must Turn Over Weapons In A Reasonable Time
The criminal protection order at issue clearly required the appellant to turn over any deadly weapon in his possession to the Strasburg Police Department. Because the order failed to specify when the weapon was to be turned over, a reasonable amount of time to do so will be presumed. The appellant was released from the Tuscarawas County Jail on March;5, 2003, and as of March;7, 2003, had not yet complied with the terms of the protection order, despite ample opportunity to comply. The court of appeals found, therefore, that the appellants conviction for recklessly violating a protection order was supported by competent, credible evidence and the jury did not lose its way in finding the appellant guilty. State v. King, Case No. 2004AP050038, 2005-Ohio-863 (5th Dist., Tuscarawas, 2/23/2005).
Keywords: firearm,gun,Brady law
Date: 8/18/2005
Conviction For Violating CPO By Possessing Handgun Upheld Despite Claimed Lack of Service
While the prosecutor produced no direct evidence that the defendant received a copy of the modified CPO or related documents, there was circumstantial evidence that defendant received such documents. Specifically, there was evidence that the trial court instructed the clerk of courts to mail copies to the defendant at his proper address; the defendant acted as though the protection order was in effect by trying to conceal the presence of his handgun in his glove compartment from the police; and the defendant knew that the petitioner had asked the court to modify, rather than withdraw, the original protection order. State v. McLean, Case Nos. 2003-T-0117 and 2003-T-0118, 2005-Ohio-1562 (11th Dist., Trumbull, 3/31/2005).
Keywords: firearm,weapon,Brady law,gun
Date: 8/18/2005
CPO Petitioners Conviction For Violating Her Own CPO Is Overturned
The court of appeals reversed the CPO Petitioners criminal conviction for violating her own domestic violence CPO based on her being found at the Respondents home (with Respondents permission) despite the stay away language in her CP. The notice in the CPO Warning advising Petitioner that only a court could change the terms of the protection order was insufficient to notify her that defying the courts warning could be considered a criminal act. This language indicated only that the General Assembly intended the Petitioner could not, by her own actions, alter or waive the effect of the protection order upon the Respondent. As indicated by the Ohio Supreme Court in State v. Lucas, only one party-the Respondent-can be criminally responsible for the violation of a protection order. The trial courts misunderstanding and mistake of law constituted a manifest injustice, and it was error for the trial court to deny Petitioners motion to withdraw her guilty plea. State v. Youngpeter, 2005 WL 196754, 2005-Ohio-329 (3rd Dist., Van Wert, 1/31/2005).
Keywords: violation
Date: 4/1/2005
Defendants Subjective Belief Does Not Prove Defense of Necessity
The court of appeals affirmed the municipal courts ruling that the Defendants affirmative defense of necessity did not apply to the charge against him of recklessly violating a protection order under R.C. 2919.27. Defendant raised the affirmative defense of necessity to charges arising from his taking his children into his home for over eight hours in violation of the no-contact order in his wifes domestic violence CPO. A family friend had dropped the children at his home at his wifes request because the children had been required to leave their day-care facility that morning because of lice in their hair. His wife was at work at the time. Despite his belief that he had no choice but to take the children into his home for their own welfare, the Defendants subjective belief, without a demonstration that he tried or even considered other alternatives, did not prove a defense of necessity by preponderance of the evidence. State v. Holmes, 2004 WL 3050836, No. C04CRB16049 (1st Dist., Hamilton, 9/08/2004).
Keywords:
Date: 4/1/2005
Attorney Fees May Be Awarded To Petitioner Upon Finding of Civil Contempt For CPO Violation
An award of attorney fees to a former wife was authorized after the former wife obtained a finding that her husband was guilty of civil contempt for failing to obtain a psychological evaluation as required under the domestic violence CPO. The trial court had discretion to impose any sanction that was reasonable in light of the former wifes husbands contemptuous conduct. While the general rule is that a prevailing party is not entitled to recover attorney fees, a statutory exception to the general rule allows an award of attorney fees when a party is found guilty of civil contempt. R.C. 3113.31 (L)(1)(b). Granger v. Granger, 2004 WL 2365905, 2004-Ohio-5601, No. 83909 (8th Dist., Cuyahoga, 10/21/2004).
Keywords:
Date: 4/1/2005
Fairly Innocuous Letter To Victim Warrants Conviction For Violating CPO
The court of appeals affirmed the Defendants conviction for violating a criminal TPO based on his conduct in sending a letter to the Petitioner in violation of the no contact language in the TPO. Even though the letter contained no overt threats and gave no indication that the Defendant planned to contact the Petitioner or her family in person, the letter itself could have reasonably been deemed an attempt to defy the courts order and to cause Petitioner and other members of the family emotional distress or psychological harm. State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506 (1st Dist., Hamilton, 2004).
Keywords: violation
Date: 4/1/2005
One Hundred Eighty-day Sentence For CPO Violation Is Upheld
The 1st District Court of Appeals affirmed the trial courts 180-day jail sentence against a husband for violating his wifes domestic violence CPO by writing a letter to his wifes residence that was addressed to the family cat. The Court of Appeals "was mindful of the argument that the content of the letter were fairly innocuous. There were no overt threats, and there was no indication that [husband] intended to contact the family in person. Nonetheless, given the context in which the letter was written, namely from a person jailed for domestic violence and aggravated menacing, the letter itself could have been reasonably deemed an attempt to defy the courts order and cause [wife] and the other members of the family emotional distress or psychological harm. Under these circumstances, the trial court could have concluded that the letter had violated the spirit, as well as the letter, of the protection order, and that the orders prohibition against such contact was proper to insure the safety and protection of the family members under [Ohio law]." State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506 (Hamilton, 1st District, 2004).
Keywords: violation,enforcement,sentencing
Date: 11/15/2004
Defendants Failure To Read CPO Is Not Excuse
Defendants failure to read his wifes domestic violence CPO is not a viable excuse for his writing three letters to her from jail in violation of the no-contact provision in the CPO. He should have been aware that his voluntary failure to read the CPO could result in a violation of the order. Moreover, knowing that the CPO restricted contact with his wife, his subsequent writings in the face of such knowledge indicated a perverse disregard of a risk that his conduct was likely to cause a CPO violation and also demonstrates an indifference to the consequences of his actions. Judgment of conviction under R.C. 2919.27 was reversed. State v. Gordon, 2003-Ohio-6558, 2003 Ohio App. LEXIS 6585 (10th App. Dist., Franklin, 12/09/2003).
Keywords: violation,"civil protection order",enforcement,excuses
Date: 3/30/2004
Conviction For Violating CPO Reversed Where Defendants Wife, Not Defendant, Made Calls To Victim
Court of Appeals reversed defendants conviction of violating a domestic violence CPO for making three phone calls to the victim (his childs mother) after issuance of the CPO because it was the defendants wife, not the defendant, who made those phone calls. The protection order prohibited the defendant from initiating any contact with the victim but did not require him to prevent others from contacting her. Violation of the CPO required some action on defendants part, e.g., initiating contact or directing others to contact the victim. "His mere failure to prevent those around him from contacting [victim] does not result in his violating the protection order." State of Ohio v. Kersey, 2004-Ohio-274, 2004 Ohio App. LEXIS 256 (4th App. Dist., Jackson, 1/21/2004).
Keywords: violations,"civil protection order",enforcement,harrassment
Date: 3/30/2004
Defendants Unsuccessful Attempt To Purchase Firearm Constituted Attempted Violation of DV CPO
Court of Appeals affirmed defendants conviction under R.C. 2923.02 and 2919.27 of attempting to violate a domestic violence CPO. Defendants wife had obtained a CPO against defendant, but five months later defendant tried to purchase a firearm and answered "no" to the question on Federal Form 4473 asking him whether he was subject to a domestic violence protection order. The next day, after conducting a background check, the FBI National Crime Information Center (NCIC) notified local law enforcement authorities of defendants application to purchase the firearm while he was subject to a CPO. Defendant appealed his subsequent conviction on the grounds of legal insufficiency of the evidence and the claim that he had abandoned his purchase of the firearm. The fact that, because NCIC denied his application, defendant could not have acquired the rifle, is of no consequence. Moreover, there was no evidence that defendant voluntarily contacted the store to rescind his request to purchase the rifle prior to his being notified that his application was denied. State of Ohio v. Evans, 2004-Ohio-318, 2004 Ohio App. LEXIS 274 (5th App. Dist., Licking, 1/26/2004).
Keywords: violation,"civil protection order",enforcement,firearms,weapons
Date: 3/30/2004
Defendants Failure To Depart Public Place Within 500 Feet of Victim Violated DV CPO
Court of Appeals affirmed defendants conviction for violating the stay-away provision of his ex-wifes domestic violence CPO. On her way to the post office, the victim spotted the defendant there, and he watched her while she completed her tasks. After she left the post office, defendant chased her car on his bicycle, and later that day, he rode back and forth on his bicycle in front of their sons house where she was visiting her son. The evidence showed beyond a reasonable doubt that defendant acted recklessly in coming into contact with his ex-wife on those three occasion. Moreover, even if defendants contact with his ex-wife at the post office and his sons house was mere chance or accident, his unwillingness to immediately depart the area was sufficient to show that he acted recklessly in violation of the CPO. City of Kent v. Raymond, Case No. 2002-P-0132, 2004 Ohio App. LEXIS 452 (11th App. Dist., Portage, 2/06/2004).
Keywords: "Stay-away order","Stay-away violation",enforcement
Date: 3/30/2004
