State v. MeinkeState v. Meinke
HENSAL, Judge.
{¶1} Nolan Meinke appeals his convictions for violating a protection order and domestic violence from the Elyria Municipal Court. This Court reverses.
I.
{¶2} Mr. Meinke and D.G. had a romantic relationship beginning in 2008. They lived together and have a daughtеr. According to D.G., around the time of her pregnancy, Mr. Meinke developed a substance abuse problem and began acting violently. Although she ended their relationship, Mr. Meinke would not accept that it was over. He began following her, calling her, and texting her incessantly. D.G. testified that Mr. Meinke took things from her house when she was at work and sent her a text image from inside her house of a shotgun along with a message that he was going to kill himself. He also banged on her windows in the middle of the night. Fearing for her safety, D.G. began staying at her parents’ house. She also obtained an ex parte
{¶3} According to D.G., Mr. Meinke was served with the protection order 15 days after she obtained it, while she was on vacation in Florida. D.G. testified that she nevertheless received numerous texts from Mr. Meinke both in Florida and after she returned to Ohio. D.G. took screen shots of some of the messages to the Elyria Police Department. Officers Jacob Webber and Christine Fortune were on duty and met with D.G. As a result of that meeting, Mr. Meinke was charged with domestic violence and violating a protection order in case number 2014CRB01323.
{¶4} Still Mr. Meinke persisted in sending texts to D.G. In response to one incident, Elyria Police Officer Eric Halvorsen met with D.G. She showed Officer Halverson screen shots of Mr. Meinke‘s texts and informed the officer that she had a protection order against Mr. Meinke. Officer Halvorsen testified that he vеrified with dispatch that Mr. Meinke had been served with the order and subsequently charged Mr. Meinke with violating a protection order in case number 2014CRB01378.
{¶5} Mr. Meinke pleaded not guilty in both cases, and they proceeded to a jury trial. Following the close of the State‘s evidence, Mr. Meinke moved for acquittal on the two counts of violating a protection order. He argued that the State failed to prove that he was served with the protection order. The municipal court denied Mr. Meinke‘s motion.
{¶7} In case number 2014CRB01323, the municipal court sentenced Mr. Meinke to 180 days in jail for violating a protection order and 30 days in jail for domestic violence. In case number 2014CRB01378, the court sentenced Mr. Meinke to 180 days in jail for violating a protection order. The municipal court ordered the sentences to be served consecutively with credit for time served. Mr. Meinke has appealed, raising three assignments of error. For ease of discussion, wе have rearranged the assignments of error.
II.
ASSIGNMENT OF ERROR II
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT OF VIOLATION OF A PROTECTION ORDER
R.C. 2919.27 SINCE THE STATE FAILED TO PRESENT EVIDENCE THAT THE DEFENDANT WAS SERVED WITH THE PROTECTION ORDER.
{¶8} In his second assignment of error, Mr. Meinke argues that there was insufficient evidence that he was served with the protection order before he allegedly violated it. Whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶9} The jury convicted Mr. Meinke of violating a protection order under Section 2919.27. That statute provides in relevant part that, “[n]o person shall recklessly violatе the terms of * * * [a] protection order issued * * * pursuant to section * * * 3113.31 of the Revised Code[.]”
{¶10} Mr. Meinke bases his sufficiency argument on his contention that the witnesses’ testimony abоut service was inadmissible hearsay. Because the State cannot retry a defendant following a reversal on the sufficiency of the evidence, “the interest in the administration of justice dictates that the appellate court review the issue of sufficiency in consideration of all evidence presented by the [S]tate in its case in chief, whether such evidence was properly admitted or not.” (Emphasis added.) State v. Vanni, 9th Dist. Medina No. 08CA0023-M, 2009-Ohio-2295, ¶ 15, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. Thus, we consider all the testimony regardless of any alleged error in its admission.
{¶12} Mr. Meinke also argues that the State must prove that service was made in accordance with the Civil Rules and “[a] certified copy of the rеturn would be irrefutable evidence of proper service and of this element.” The State responds that this argument goes beyond the holding in Smith which requires evidence that the defendant was served, not how he was served. We need not decide this issue because the evidence in this case was sufficient to establish that Mr. Meinke was served in compliance with the Civil Rules.
{¶13} The State is not required to present “irrefutable evidence” to overcome a sufficiency challenge. Rather, “the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jenks, 61 Ohio St.3d 259, at
{¶14} Service of a civil protection order is governed by Civil Rule 65.1(C). In relevant part, the rule provides: “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 this state under
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON ALL THE ELEMENTS OF VIOLATING A PROTECTION ORDER
R.C. 2919.27 .
{¶15} In his first assignment of error, Mr. Meinke argues that his convictions should be reversed because the municipal court failed to instruct the jury that service of thе protection order was an element of the offense of violating a protection order. “As a general rule, a defendant is entitled to have the jury instructed on all elements that must be proved to establish the crime with which he is charged.” State v. Adams, 62 Ohio St.2d 151, 153 (1980). Following Smith, service of a protection order, “antecedent to the alleged violation, is an essential element that the [S]tate must prove” to establish a violation of
{¶17} Mr. Meinke argues that this situation is not subject to a harmless error analysis because the omitted instruction was for an element of the offense. In support of his argument, he directs our attention to Hoover v. Garfield Hts. Mun. Court, 802 F.2d 168 (6th Cir.1986). In Hoover, a federal circuit court reviewing a habeas corpus action found that the failure to instruct on an essential element of the crime was a constitutional error to which a harmless-error analysis did not apply. Id. at 178.
{¶18} Since Hoover was decided, however, the United States Supreme Court has found errors “to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.‘” Neder v. United States, 527 U.S. 1, 8 (1999), quoting Johnson v. United States, 520 U.S. 461, 468 (1997). In Neder, the Court noted that “a jury instruction thаt omits an element of the offense * * * differs markedly from the constitutional violations [the United States Supreme Court has] found to defy harmless-error review.” Neder at 8. The Court continued: “[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” (Emphasis sic.) Id. at 9. It cоncluded “that the omission of an element [from the jury instructions] is subject to harmless-error analysis[.]” Id. at 10.
{¶19} Similarly, the Ohio Supreme Court has held that the failure to instruct the jury on all of the elements of an offense is not a structural error. State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, ¶ 1. In Wamsley, the Court noted that there are two types of constitutional
{¶20} The genеral test for determining whether a constitutional error is harmless is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘” Neder at 15, quoting Chapman v. California, 386 U.S. 18, 24 (1967). In the specific situation where the trial court has failed to instruct the jury as to all the elements of an offense, the error is harmless if the “omitted еlement is supported by uncontroverted evidence[.]” Id. at 18. In adopting that standard for jury instructions that omit elements of an offense, the Supreme Court reasoned that “this approach reaches an appropriate balance between ‘society‘s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.‘” (Alteration sic.) Id., quoting Connecticut v. Johnson, 460 U.S. 73, 86 (1983).
{¶21} The evidence regarding whether Mr. Meinke was properly served with the protection order was not uncontroverted. Mr. Meinke challenged the witnesses’ testimony on that issue both on cross-examination and during his closing argument. Because the jury instructions omitted the element of service, the jury never had to assess the credibility of the chаllenged testimony.
{¶22} In addition, the evidence establishing that Mr. Meinke was properly served before he allegedly committed the charged offenses was not overwhelming. The State only submitted the hearsay testimony of D.G. and the officers who received her complaints. The State also did
{¶23} Accordingly, upon review of the record, we cannot conclude that it is beyond a reasonable doubt that the jury would have found the service element was met if the court had given the appropriate instruction. Mr. Meinke‘s first assignment of error is sustained.
Assignment of Error Number Three
THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES FOR DOMESTIC VIOLENCE
R.C. 2919.25(C) AND FOR VIOLATION OF A PROTECTIVE ORDER SINCE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT.
{¶24} In his third assignment оf error, Mr. Meinke argues that the offenses of domestic violence and violating a protection order in case number 2014CRB01323 were allied offenses of similar import. In light of our determination of Mr. Meinke‘s first assignment of error, we conclude that this issue is moot, and it is overruled on that basis.
III.
{¶25} Mr. Meinke‘s second and third assignments of error are overruled. His first assignmеnt of error is sustained. The judgment of the Elyria Municipal Court is reversed, and this matter is remanded for further proceedings consistent with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Elyria Municipal Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mаndate, pursuant to
Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
CANNON, J.
CONCURS.
CARR, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶26} I agree with the majority opinion that Mr. Meinke‘s convictions for violating a protection order were supported by sufficient evidence. However, I would find that the failure to instruct the jury on service of the protection order was harmless error.
{¶27} The majority finds that the evidence regarding service was not uncontroverted because Mr. Meinke challenged it on cross-examination and during his closing argument. “It is axiomatic that ‘statements made by counsel in opening statements and closing arguments are not evidence.‘” State v. Carr, 9th Dist. Summit No. 26661, 2014-Ohio-806, ¶ 16, quoting State v. Frazier, 73 Ohio St.3d 323, 338 (1995).
{¶28} While D.G. and Officer Webber were briefly cross-examined regarding service, their testimony on cross-examination did not negate or сontradict their testimony on direct
{¶29} The majority also discounts the witnesses’ testimony regarding service as hearsay and notes that the State did not avail itself of other methods to prove service. Whilе Mr. Meinke argued on appeal, in his sufficiency challenge, that the testimony was hearsay, he did not object to this particular testimony below.2 Therefore, the witnesses’ testimony regarding service of the protection order was before the jury as it deliberated.
{¶30} The fact that the State had other methods to prove service is immatеrial. The issue is not did the State present the best evidence of service, but whether the failure to instruct on the service element contributed to the verdict. See Neder v. United States, 527 U.S. 1, 15 (1999). Based on the substantial and uncontradicted evidence presented in this case, I would find it “clear beyond a reasonable doubt that a rational jury would have found [Mr. Meinke] guilty absent the [failure to instruct on service.]” See id. at 18. Consequently, I would find this error was harmless and overrule the first assignment of error.
{¶32} Accordingly, I would overrule all three of Mr. Meinke‘s assignments of error and affirm the trial court.
(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)