State v. Schell, 2017 Ohio 2641

Background

Eric Schell was subject to an ex parte temporary civil stalking protection order (issued April 10, 2014, effective until April 9, 2017) forbidding threats, following, stalking, harassment, initiating contact, and requiring staying 500 feet away from D.B. and J.B., including prohibitions against interfering with their place of employment.
On August 27, 2014, while D.B. and coworkers were repairing a road near Schell’s property, witnesses observed Schell taking photographs from his property, drive past the worksite, turn around, pass again, and (according to D.B.) swerve his truck toward the worker and yell at them.
Schell was indicted for intimidation and violating the protection order; a jury found him guilty of violating the protection order and acquitted on the intimidation count.
On appeal, Schell raised five assignments of error arguing insufficient evidence, manifest weight, flawed jury instructions (lack of specificity/unanimity), failure to require jury finding that the ex parte order was valid, and (withdrawn) challenge to the underlying issuance of the ex parte order after the full hearing.
The Ninth District reviewed sufficiency, weight, and plain-error claims, declined to consider a belated service argument (forfeited by not raised in Crim.R. 29 motion), and affirmed the conviction.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Schell)	Held
Sufficiency of evidence to support violation	Evidence (photos, driving behavior, yelling, circling back, swerving) shows Schell recklessly violated the order	Insufficient proof he was served; insufficient proof he violated order (uncertain what was said/to whom)	Conviction affirmed; evidence sufficient to permit a rational juror to find reckless violation
Manifest weight of evidence	Jury reasonably believed witness testimony; conflicting details are for jury to resolve	Conviction against manifest weight; testimony uncorroborated and inconsistent	Not against manifest weight; jury entitled to assess credibility; not exceptional case to upset verdict
Jury instruction specificity / unanimity	Standard CR 519.27 instruction correctly stated elements (service and reckless violation); means of violating need not be unanimous	Trial court should have instructed jury which specific prohibitions were violated to ensure unanimity	No plain error; unanimity required as to elements only, not the particular means of satisfying an element
Jury determination of validity/existence of ex parte order	Instruction requiring finding defendant was served with a protection order implicitly requires existence/validity	Court should have instructed jury to determine whether the ex parte order existed/was valid (full hearing had been continued)	No plain error; record establishes ex parte order existed and is enforceable until rescinded; instruction adequate

Key Cases Cited

State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for reviewing sufficiency of the evidence in criminal cases)
State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (distinguishing sufficiency and manifest weight review)
State v. Smith, 136 Ohio St.3d 1 (Ohio 2013) (protection order must be served to be enforceable; served means actual delivery)
Richardson v. United States, 526 U.S. 813 (U.S. 1999) (juror unanimity required as to elements but not as to the means by which an element is satisfied)
State v. Gardner, 118 Ohio St.3d 420 (Ohio 2008) (clarifying unanimity principles; means vs. elements)
State v. Comen, 50 Ohio St.3d 206 (Ohio 1990) (trial court must give all instructions relevant and necessary to weigh the evidence)
State v. White, 142 Ohio St.3d 277 (Ohio 2015) (trial courts must present correct, pertinent law appropriate to the facts)
State v. Otten, 33 Ohio App.3d 339 (Ohio Ct. App. 1986) (manifest weight standard description)
State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (weight and credibility of evidence are for the trier of fact)