State v. TerrellState v. Terrell
DANIEL F. GETTY, Atty. Reg. #0074341, 46 East Franklin Street, Centerville, Ohio 45036 Attorney for Defendant-Appellant
O P I N I O N
HALL, J.
{¶ 1} Defendant-appellant Michael Terrell, Sr., appeals from his conviction and sentence for Violating a Protection Order, a fifth-degree felony in violation of
{¶ 2} We conclude that the State failed to prove, beyond a reasonable doubt, that Terrell was served with a copy of the final protection order prior to Terrell’s acts that violated the protection order. Accordingly, the judgment of the trial court is Reversed and vacated consistent with this opinion.
I. Terrell Violates the Terms of a Protection Order
{¶ 3} On April 6, 2012, an ex parte protection order was issued against Michael Terrell, Sr. pursuant to
{¶ 4} Terrell was not present at the April 20th final hearing. At the close of the hearing, the trial court issued a final protection order against Terrell. The final protection order stated that it was in effect until April 20, 2017. Page four of the order directed the Clerk of Courts of Clark County to serve a copy of the final protection order on Terrell “as required by law.”
{¶ 5} On August 5, 2013, Terrell violated the terms of the final protection order by
II. Course of the Proceedings
{¶ 6} On August 19, 2013, a Clark County Grand Jury indicted Terrell on one count of Violating a Protection Order, in violation of
III. The State Failed to Prove, Beyond A Reasonable Doubt, that Terrell Was Served with A Copy of The April 2012 Final Protection Order
{¶ 7} Terrell’s First Assignment of Error states:
THE CONVICTION OF MR. TERRELL IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} In this assignment of error, Terrell contends that the State failed to show that a copy of the final protection order was served upon Terrell. According to Terrell, the jury’s verdict was against the manifest weight of the evidence, because the record is “wholly void of evidence as to what order and notifications were given to Mr. Terrell.” Brief, p. 8-9.
{¶ 9} “A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” State v. Cassell, 2d Dist. Clark No. 09CA0064, 2011-Ohio-23, ¶ 46. When a conviction is challenged on appeal as being against the manifest weight of the evidence, “ ‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 10} Terrell was convicted of Violating a Protection Order in violation of
{¶ 11} In State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972, ¶ 26-27, the Supreme Court of Ohio held that the State, in order to prove that a defendant violated
The requirements of
R.C. 2903.214 are incorporated intoR.C. 2919.27(A)(2) .R.C. 2903.214(F)(1) requires delivery of the [protection order] to the respondent before a violation ofR.C. 2919.27(A)(2) can be charged. The only manner by which the court is able to fulfill this mandate is to serve the[protection order]. Therefore, to sustain a conviction for a violation of a protection order pursuant to R.C. 2919.27(A)(2) , the state must establish, beyond a reasonable doubt, that it served the defendant with the order before the alleged violation.
{¶ 12} Although the facts in the case before us differ from the facts in Smith because Smith was charged with a violation of
{¶ 13} Two protection orders were admitted into evidence at trial. John C. Thaxton, a deputy sheriff with the Clark County Sheriff’s Office, testified that he served a copy of the April 6, 2012 ex parte protection order on Terrell while Terrell was in jail. Terrell acknowledged receipt of this order by signing for it on April 6, 2012. Trial Tr. 89-92; State’s Exhibits 3 and 4. The ex parte order was issued in Case No. 12-DP-293 and stated that the terms of the order shall be effective until April 4, 2013.
{¶ 14} Ronald E. Vincent, the Clerk for the Common Pleas Court of Clark County, testified regarding a certified copy of the April 20, 2012 final protection order issued against Terrell in Case No. 12-DP-293. Trial Tr. 81-87. That protection order was issued after a full hearing and provided that the order was effective until April 20, 2017. State’s Exhibit 2. Page
{¶ 15} Terrell contends that the State failed to prove that he received a copy of the April 20, 2012 protection order prior to his violation of the order in August 2013. The State responds that the testimony of Deputy Thaxton establishes that Terrell was served with copies of both the ex parte and final protection orders while Terrell was in prison.
{¶ 16} Thaxton did not testify that he served Terrell with a copy of the final protection order. Initially, Thaxton testified that typically what he would serve on a prisoner is a copy of the final protection order rather than the ex parte order. Trial Tr. 90. But when asked about what he served in this particular case, Thaxton testified that he served Terrell with a copy of the ex parte protection order. Id. at 92-93. His testimony reveals he served the order “on 4/6/12 at 1405 hours.” Id. at 91.That was obviously before the final protection order was issued on April 20, 2012. He did not testify that he also subsequently served Terrell with a copy of the final protection order. Indeed, during his testimony, Thaxton identified State’s Exhibit 4 as the document that he personally served on Terrell and as the document that he typically would serve on an inmate. Trial Tr. 92-93. State’s Exhibit 4 is a copy of the ex parte protection order, not the final protection order. The ex parte protection order, by its own terms, expired on April 4, 2013, well before Terrell’s conduct on August 5, 2013.
{¶ 17} Furthermore, the final protection order stated that Terrell did not appear at the final hearing. The order also directed the clerk of courts to serve a copy of the order on Terrell as required by law. But there is no evidence in the record that the clerk of courts followed this direction or that any person actually served Terrell with a copy of the order. Therefore, the State
{¶ 18} Terrell’s First Assignment of Error is sustained.
IV. Terrell’s Second Assignment of Error is Overruled As Moot
{¶ 19} Terrell’s Second Assignment of Error states:
THE COURT COMMITTED REVERSIBLE PLAIN ERROR AND OTHERWISE ABUSED ITS DISCRETION BY IMPOSING A CLEARLY EXCESSIVE SENTENCE IN VIOLATION OF MR. TERRELL’S U.S. AND OHIO CONSTITIONAL [SIC] RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT.
{¶ 20} Based on our disposition of Terrell’s First Assignment of Error, we need not address this assignment of error. Consequently, Terrell’s Second Assignment of Error is overruled as moot. App.R. 12(A)(1)(c).
V. Conclusion
{¶ 21} Having sustained Terrell’s First Assignment of Error, the judgment of conviction
DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Ryan A. Saunders
Daniel F. Getty
Hon. Richard J. O’Neill