State of Ohio, Plaintiff-Appellee, v. Jacob C. Rexrode, Defendant-Appellant.
No. 17AP-873 (M.C. No. 16CRB-24962)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 11, 2018
2018-Ohio-3634
(REGULAR CALENDAR)
On brief: Yeura R. Venters, and George M. Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Municipal Court
D E C I S I O N
Rendered on September 11, 2018
BROWN, P.J.
{¶ 1} Jacob C. Rexrode, defendant-appellant, appeals from a judgment of the Franklin County Municipal Court, finding him guilty of violation of protection order.
{¶ 2} E.C., the victim, and appellant were involved in a relationship. In October 2016, E.C. told apрellant she wanted to end their relationship. Appellant sent hostile text messages to E.C. E.C. then filed aggravated menacing and menacing complaints against appellant (which are not the subject of this appeal) and also sought a civil protection order (“CPO“).
{¶ 3} On October 17, 2016, the court issued an ex parte CPO which prohibited appellant from contacting E.C., including via telephone. On October 20, 2016, appellant
{¶ 4} The next day, appellant called E.C. from the psychiatric unit. E.C. filed a complaint for VPO the same day (“first VPO“).
{¶ 5} On Octobеr 24, 2016, officers from the Columbus Police Department arrested appellant after he was discharged from the hospital. Appellant did not attend the full CPO hearing that day.
{¶ 6} On October 28, 2016, while still in jail, appellant telephoned E.C.‘s number 11 times. E.C. filed a second VPO charge (“second VPO“).
{¶ 7} Appellant was subsequently found to be incompetеnt by a court psychologist but was restored to competency prior to trial.
{¶ 8} Appellant pled no contest to the menacing and aggravated menacing charges and the trial court sentenced him to probation. The trial court held a bench trial on the first and second VPOs, and found appellant not guilty on the first VPO сharge and guilty on the second VPO charge. The trial court sentenced appellant to probation. Appellant appeals the trial court‘s judgment, asserting the following two assignments of error:
[I.] APPELLANT‘S CONVICTION FOR VIOLATING A PROTECTION ORDER IS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
[II.] APPELLANT‘S CONVICTION FOR VIOLATING A PROTECTION ORDER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 9} We address appellant‘s assignments of error together. Appellant argues in his assignments of error the trial court‘s judgment was against the manifest weight of the evidence and based on insufficient evidence. Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a verdict is a question of law. Id. In determining whether the
{¶ 10} The weight оf the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. Thompkins at 387. When presented with a challenge to the manifest weight of the evidence, an appellate court may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be revеrsed and a new trial ordered. Id. at 387. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
{¶ 11} In addressing a manifest weight of the evidence argument, we are able to consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the presumption that the jury, or the trial court in a bench trial, ” ‘is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ ” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference to the jury‘s determination of witness credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus (credibility determinations are primarily for the trier of fact).
{¶ 12} The sole issue raised by appellant concerns whether police served appellant with the CPO in conformity with law. “To sustain a cоnviction for a violation of a protection order pursuant to
When process issued from * * * a court of common pleas * * * is to bе served personally under this division, the clerk of the court shall deliver the process and sufficient copies of the process and complaint, or other document to be served, to the sheriff of the county in which the party to be served resides or may be found. * * * The person serving process shall locate the рerson to be served and shall tender a copy of the process and accompanying documents to the person to be served. When the copy of the process has been served, the person serving process shall endorse that fact on the process and return it to the clerk, who shall make the appropriate entry on the appearance docket.
{¶ 13} In the present case, appellant argues plaintiff-appellee, the State of Ohio, failed to present sufficient evidence it transferred possession of a copy of the CPO to him. Appellant contends that Deputy Stewart сould not remember if he gave a copy of the CPO to appellant at the hospital after reading the contents of the CPO to him, Deputy Stewart could not remember if he gave it to the officers or hospital staff present at the time, there was no evidence that appellant was subsequently ever given the CPO by any оfficer or hospital staff, and appellant did not take physical possession of the CPO until months after being charged with its violation. Appellant asserts Deputy Stewart could not have given him the CPO because his hands were handcuffed behind him.
{¶ 14} At the hearing, appellant recalled the events that occurred while he was in the emergency room. He testified he never saw, touched, or read the CPO until two weeks before the hearing. Appellant also stated he was handcuffed behind his back when Deputy Stewart attempted to serve him the CPO. He said another officer told him that Deputy Stewart had a paper to serve him and Deputy Stewart briefly read something to him from the paper. Deputy Stewart told him it was a CPO. However, appellant claimed Deputy
{¶ 15} The state presented the testimony of Deputy Stewart. Although Deputy Stewart could not specifically remember whether he gave the CPO to appellant at the hospital, he did present extensive testimony related to his normal routine for serving CPOs in the past. Under
{¶ 16} Here, Deputy Stewart testified he had only a “faint” memory of his service of the CPO on appellant. However, he testified to his standard routine and general habit in serving CPOs for over ten years. He stated that once he makes contact with the respondent named in the CPO, he explains to the respondent why he is there and that he
{¶ 17} Deputy Stewart further testified the only time he would not hand the CPO directly to the respondent was if a nurse or security staff said the respondent could not have it. Even if the respondent were handcuffed, he would hand the CPO to him. Only “[v]ery rarely” would he not give the CPO directly to the actual person. (Mar. 1, 2017 Tr. at 61.) He did not remember any reason why he would not have directly handеd the CPO to appellant in this case. If there were any special or unusual situation, such as the respondent being in shackles, Deputy Stewart‘s habit was to write the unusual circumstance on the page he signs. He testified that “[d]efinitely, no,” he did not initially hand the CPO to someone else in the hospital room. (Mar. 1, 2017 Tr. at 103.) He said in some cirсumstances he would read the CPO to the respondent, serve it to him or her, and then hand it to the nurse and explain that the nurse should put it in the property bag. He stated he could not remember if he eventually handed it to a nurse, but it did not “stand out in [his] mind that [he] did that, so [he] can‘t say for sure.” (Mar. 1, 2017 Tr. at 104.) He testified that if the individual is handcuffed or handcuffed tо a chair, he would still hand the CPO to the person unless there is a security reason as to why the respondent could not have it. In that case, the respondent would hang on to it, and he would tell the individual to give it to an officer or nurse. However, Deputy Stewart testified that if an
{¶ 18} With respect to appellant‘s insufficiency of the evidence argument, we find that, viewing the evidence most strongly in favor of the prosecution, any rational trier of fact could have found the state proved Deputy Stewart properly servеd the CPO. Although Deputy Stewart only had a “faint” memory of his service of the CPO on appellant, he testified that his standard routine was to give the CPO to the respondent and sign the CPO receipt to show that he served the order. He said he very rarely would not give the CPO to the respondent. The only circumstances under which he does not hand the CPO directly to the respondent is if a nurse or security staff says he cannot have it, or the respondent is handcuffed behind his back. In this case, he did not remember any reason why he would not have directly handed the CPO to appellant and if there were any special or unusual situation, his habit was to write that on the page the deрuty signs. In this case, he did not make any notation that anything unusual happened during his service of the CPO. He also testified that “[d]efinitely, no,” he did not hand the CPO to someone else in the hospital room. He might have eventually handed it to a nurse after serving it on appellant, but it did not stand out in his mind that he did. Construing this evidence most strongly in favor of the state, we find the trial court‘s determination that appellant was properly served was based on sufficient evidence. A rational trier of fact could have concluded that Deputy Stewart served appellant the CPO based on his usual routine and habit.
{¶ 19} With regard to the manifest weight of the evidence argument, we similarly find the trial сourt‘s judgment was not against the manifest weight. In conflict with Deputy Stewart‘s habit testimony outlined above, appellant testified that Deputy Stewart never gave him the CPO. However, the trial court was free to disbelieve appellant‘s testimony. Interestingly, appellant never testified as to whom Deputy Stewart actually gave the CPO if he did not give it to appellant. Thus, although the burden of proof was not on appellant, appellant‘s lacking memory on this crucial detail raises an issue of whether his testimony regarding this and other circumstances surrounding the event should be believed.
{¶ 20} Appellant‘s most compelling argument is his testimony that he was handcuffed behind his back. This testimony was especially pertinent because Deputy
{¶ 21} Accordingly, appellant‘s two assignments of error are overruled, and the judgment of the Franklin County Municipal Court is affirmed.
Judgment affirmed.
SADLER and DORRIAN, JJ., concur.