*1
Smith,
v.
as State
1,
[Cite
Ohio
crime of a civil stalking sexually-oriented-offense protection (“SSOOPO”) under the state must that the order was delivered as required before the alleged offense occurred. follow, For the conviction, reasons that we conclude to sustain such establish, state a reasonable that it defendant with the order Accordingly, violation. we reverse the judgment of the court of appeals.
I. Facts Procedural History appellant, Jr., Shasta Pickens and began Robert Smith in dating 2009. The two did together. Avenue, not live lived at Columbus, Pickens 879 Camden Ohio, and lived with his mother. Smith was not on the lease at the Camden address and did not have a key. relationship Pickens described her with “rocky” Smith as marked She “altercations.” terminated the 2010. relationship early On April petition Pickens Pleas, filed the Franklin County Common 2903.214,1
pursuant for an parte ex SSOOPO against Smith. Ohio, Appellee, contends, clearly shows, and a review the and indictment SSOOPO 2903.214, 2929.26, the SSOOPO was issued not R.C. as the lower courts therefore, analysis, only. stated. Our addresses R.C. 2903.214 hearing mandatory day, set a petition granted The court 10.03-E, parte an ex SSOOPO.2 10.03, Form date, and, to Sup.R. of Pickens 500 feet” present within “not [to] ordered Smith The SSOOPO *2 know knows or should found, any place [Smith] may be “wherever [she] to be.” likely is] [Pickens of SSOOPO, County Franklin Clerk the the court issued day On the
{¶ 5} Franklin required clerk’s order an order to serve Smith. Courts of to make a return and of the SSOOPO to serve a certified Sheriff County (cid:127) of service of the or a failure on Smith service personal either reporting SSOOPO, a she showed Smith obtaining that after testified order. Pickens her. She believed allowed to be around him he was not it and told that copy of had not that the sheriff point, 2010. At April that that event had occurred with the order. served Smith yet a.m., bang Pickens heard a 17, 2010, 11:00 approximately at April On
{¶ 6} coming up the door and saw Smith opened the basement her basement. She her neck from behind around grabbed her Pickens testified Smith stairs. her, began the two to choke and attempted in a headlock. He and her put son and his friend 14-year-old Pickens’s ended when tussle. The altercation However, did not leave. the house. Smith entered 9-1-1, responded. officers Smith police and Columbus Pickens called him. flee, and arrested apprehended but the officers attempted order to serve of the clerk of court’s portion return-of-service on the with the SSOOPO personally that a sheriff Smith deputy reflects contention that does not refute Smith’s the altercation. The state day same as the incident occurred. not effected until after service was a burglary, for aggravated was indicted Smith On (R.C. agreement a order or consent charge violating protection of misdemeanor tried to a violence, arrest. The matter was 2919.27(A)(2)), resisting domestic protection a burglary, violating guilty aggravated found Smith of jury, which was dismissed charge order, resisting arrest. The domestic-violence motion. Smith’s Crim.R. Appeals, argued to the Tenth District Court appeal On at to establish that service, insufficient evidence there was
without
Thus,
place.
was a
he knew that there
time of the altercation
IV,
general superinten-
Constitution,
gives
Supreme
Court of Ohio
Article
Section 5
2. The Ohio
authority
grant
authority
ensures that
rule-making
courts in this state. This
over
dence and
Assembly.
consistency
To ensure
compliance
the will of the General
courts act in
order,
following
Supreme
developed
for state-wide use
forms
the full force of
Sup.R.
10.03-E. To
law. See
stalldng-protection-order
10.03 and Form
of the civil
the enactment
2903.214(F)(1),
complete
directed.
all
of this form as
comply
trial courts must
sections
with R.C.
the state failed to
that he had
“recklessly” violated the order within the
meaning
perverse
recklessness requires
disregard
2901.22(C).
held,
known risk. R.C.
The Tenth District Court of Appeals
“Service
order on the
not an
defendant is
element of
crime
2919.27(A).”
Smith,
violating
protection order as defined in R.C.
State v.
¶
11AP-512,
II. Law Analysis Smith argues that an SSOOPO is criminally not enforceable to pursuant 2919.27 2903.214, unless it is according to the terms of R.C. he which claims service on the defendant. R.C. states: The court shall cause the delivery any protection of order is issued under this section to the to petitioner, to all respondent, and law agencies jurisdiction enforcement that have to enforce the The order. court shall a copy direct that the order be delivered to the on respondent the same day that the order is entered. added.)
(Emphasis 2919.27, which under Smith was charged, reads: (A) No person shall recklessly violate terms of any following: of the [*] v [*]
(2) A protection pursuant order issued to section 2903.214.of Revised Code. added.)
(Emphasis Smith claims that he was not lawfully of violating convicted 2919.27 because the order was not “issued to” R.C. He 2903.214. argues that the issued, order in this case was not properly is no because “there non-hearsay complaint evidence that the and order were ever served” required that the order was served and no evidence by R.C.
alleged offense. unambiguous lan- that the plain contends response, In state recklessly that the violated requires only proof defendant
guage R.C. 2919.27 2903.214, of service. adds order issued The of the had made Smith aware Pickens claims, 2903.214(D)(2)(b) (E)(2)(a), which, it demon- state invokes R.C. also issuance, not service. upon orders are enforceable strate that 2919.27(A)(2), however, demonstrates that it reading A plain Therefore, violation R.C. 2903.214. requirements incorporates all reasonable prove, the order 2903.214, requirement including defendant. delivered to the 2903.214(F)(1), “delivery” disagree as to whether parties meant is indeed unclear as to what is “service.” statute
presupposes
interpreta-
to various
subject
is found to be
“delivery.”
term
“Where
statute
* *
its
invoke
tions,
interpret
provisions may
called
rules of
a court
Papado-
v.
legislative
arrive at
intent.” Meeks
construction
order to
statutory
(1980).
judicial
object
“The
pulos,
404 N.E.2d
62 Ohio St.2d
is to
effect to
give
in the
of a statute
ascertain and
investigation
construction
* *
Weaver,
it
v.
lawmaking
Slingluff
enacted
body
intent of the
which
(1902),
Legislative
one
syllabus.
Ohio
{¶ 18} 2903.214(F)(1). so we Chapter “delivery,” R.C. 2903 does define seek (9th Ed.2009) Dictionary Law defines guidance from other sources. Black’s deed; as a transferring something, formal act of such the “delivery” as “[t]he at to another.” Id. possession something or or control giving yielding in used first sentence R.C. Giving effect the words the * * * 2903.214(F)(1), delivery respondent,” court the to the we shall cause “[t]he of a possession hold about transfer of bring that it mandates the court just than respondent. to the The statute more the requires the SSOOPO respondent. its to the ordering delivery the SSOOPO and issuing court’s requires that the order be delivered. actually delivery, is but 2903.214is silent on how the court to effectuate we R.C.
{¶ 20} in this “deliver[y] respondent” synonymous hold and to the are that “service” a reasonable that therefore the state must establish doubt context and violation. Black’s order before the it the defendant with the summons, writ, delivery formal defines “service” as Dictionary “[t]he Law added.) Thus, when R.C. Id. at 1491. (Emphasis legal process.” other 2903.214(F)(1) service on requiring it is “delivery” of requires respondent. the court to serve SSOO- requires Accordingly, R.C. mandate, the court must follow To fulfill this respondent. upon
PO 2903.214(G) (“Any R.C. Procedure. See of the Rules Civil in with the Rules conducted accordance under this section shall be proceeding * * ”). Civil Procedure than something as less delivery respondent requiring To to a interpret 2901.04(A)that “sections of the Revised Code the mandate of R.C. ignores state, and strictly against shall be construed defining penalties offenses or in liberally construed favor of the accused.” 2903.214(D)(2)(a). That is consistent with R.C. interpretation This hearing an order to schedule a full issuing parte
subsection court ex A opportunity notice” of and an to be heard. “give respondent hearing hearing respondent trial court continue the if “the has not been served may added.) hearing.” (Emphasis and notice of the petition 2903.214(D)(2)(a)(i). 2903.214(D)(2)(b) (E)(2)(a) supportive The state’s reliance 2903.214(D)(2)(b) that an ex position misplaced. parte
of its is states hearing. or a continuance of the full upon is not invalidated failure of service 2903.214(E)(2)(a) until a states that the order “shall be valid date from in’ these years Nothing certain” that not exceed five “issuance.” 2903.214(F)(1). fact, In delivery nullifies the provisions requirement 2903.214(D)(2)(a)(i) (D)(2)(b) means service “delivery” reinforce our view and in respondent to instances which “the has not been served” by referring which there been “a failure of service.” has case, County In Franklin Pleas carried out this Common conformity interpretation. with our On
the mandate Form 10.03-E. It also granted petition the court and issued directed the clerk to issue an order to serve to the sheriff for service Smith. Pickens and But service was not effected until after the altercation between Smith. *5 delivery requirement Because evidence of with the compliance
2903.214(F)(1) establishing is essential to a violation of alleged offense 2919.27(A)(2), we hold that the evidence was insufficient to sustain Smith’s R.C. 2919.27(A)(2). conviction pursuant protection importance mindful of the make this determination We must not be countenanced. a issued SSOOPO properly A violation of
orders. to have the SSOOPO served However, right the defendant’s ignore we cannot respondent. a requires conformity with the law. R.C. achieved, violating for was conviction that service Without 2919.27(A)(2) the state often have recourse. cannot But the victim and stand. have violated the for conduct that would prosecuted An who cannot be offender during often commits other crimes properly had it been protection order assault, incident, for which the offender burglary the same such the law. to the extent of punished
III. Conclusion into incorporated 2903.214 are The 2919.27(A)(2). to the delivery of the SSOOPO 2919.27(A)(2) only charged. can be respondent before violation court is able to fulfill this mandate is to serve the SSOOPO. manner which the Therefore, a conviction for a violation of a to sustain establish, a reasonable that it the state must Accordingly, violation. served the defendant with the order before court of and remand the matter to the judgment appeals we reverse the consistent with this decision. proceedings trial court for reversed
Judgment and cause remanded. JJ., Pfeifer, O’Donnell, O’Neill, concur. Lanzinger JJ.,
O’Connor, C.J., French, dissent. J., dissenting.
Lanzinger, first-degree with a misdemeanor charged Robert Smith Jr. was 2919.27(A)(2)provides, person order. R.C. “No offense of * * terms of order issued recklessly shall violate the of the Revised Code.” The elements that the state must section 2903.214 County, in Franklin a reasonable doubt are that on prove beyond recklessly violated a civil order issued under R.C. 2903.214. is not needed for a conviction. delivery Proof of service or after place focuses on the technical service that is to take majority 2903.214(F)(1) states: the order is issued. R.C.
The court shall cause the delivery of copy any protection order that is issued under this petitioner, section to the to the respondent, and to all law agencies enforcement jurisdiction have to enforce the order. The court shall direct that a the order be delivered to the respondent day the same that the order is entered. I disagree that provision this means that the crime of violating may not be charged unless a defendant has first been served with the order itself. The order force, has independent even apart from service. 2903.214(E)(2)(a) states that order’s validity dates from its issuance. One charged the crime of violating protection order 2919.27(A)
under R.C. “issued,” unless that order is but the statute is silent about delivery or service. That is not 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 a mens rea of recklessness —whether a defendant had knowledge of the order’s existence yet disregarded it. Without evidence of a defendant’s knowledge a jury cannot find that a defendant acted with disregard 2901.22(C) of a known risk. See (defining “recklessly”). Here, however, Pickens gave that, testimony believed, if proved that she
told Smith she had an obtained order and told him what it said. ignored He protection order to stay away from Pickens 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 protection order as 2919.27(A). defined in R.C. I would affirm the judgment of the Tenth District Court of Appeals.
O’Connor, C.J., J., French, concur in the foregoing opinion. O’Brien, Ron Franklin County Prosecuting Attorney, and Sheryl Prichard, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Defender, Ohio Public and Stephen Hardwick, P. Assistant Defender, Public for appellant.