Strongsville v. DolbinStrongsville v. Dolbin
- Reporters:
- ,
- Before:
- Keough
ATTORNEYS FOR APPELLANT
Kimberly Kendall Corral
Baioni Corral, L.L.P.
1497 East 361st Street, Suite 3
Eastlake, Ohio 44095
Carlos K. Johnson
1220 West Sixth Street, Suite 203
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
George F. Lonjak
City of Strongsville Prosecutor
18688 Royalton Road
Strongsville, Ohio
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Nick Dolbin, appeals his conviction of violating a domestic violence protection order. For the reasons that follow, we reverse and remand for the trial court to enter a judgment order vacating Dolbin‘s conviction.
{¶2} On February 1, 2015, Dolbin was charged in the Berea Municipal Court under case number 15CRB00146 with two counts of domestic violence in violation of
{¶3} Subsequently on March 19, 2015, the city of Strongsville charged Dolbin in this case under case number 15CRB00411 with two counts of violating the domestic violence protection order in violation of
{¶4} Both cases proceeded to trial. Following a jury trial in case number 15CRB00146, Dolbin was acquitted of both domestic violence charges. Prior to trial in this case on the TPO violations, Dolbin moved to dismiss the complaint, arguing that the underlying TPO was invalid because neither the victim nor the arresting officer had moved for a TPO and the municipal court failed to conduct a hearing pursuant to
{¶5} Also prior to trial, the city dismissed one count of violating the TPO. The remaining count was tried before the bench, where the court heard evidence that Dolbin submitted an application seeking employment with wife‘s employer. The application was submitted to human resources, the department that his wife supervised. The court found Dolbin guilty of violating a protection order and ordered him to pay a $100 fine and court costs.
{¶6} Dolbin now appeals, raising three assignments of error.
I. Subject Matter Jurisdiction
{¶7} In his first assignment of error, Dolbin contends that the court erred in finding that he violated the domestic violence TPO because the municipal court did not have subject matter jurisdiction to even issue the TPO.
{¶8} Initially, we note that the TPO was issued in case number 15CRB00146 as a result of two domestic violence charges filed against Dolbin. Whether Dolbin challenged the court‘s jurisdiction to issue the TPO in that case is not in the record before this court.
{¶9} Nevertheless, the Berea Municipal Court was established statutorily by
{¶10} The court issued the domestic violence TPO pursuant to
[u]pon the filing of a complaint that alleges a violation of section 2909.06, 2909.07, 2911.12, or 2911.211 of the Revised Code if the alleged victim of the violation was a family or household member at the time of the violation, a violation of a municipal ordinance that is substantially similar to any of those sections if the alleged victim of the violation was a family or household member at the time of the violation, any offense of violence if the alleged victim of the offense was a family or household member at the time of the commission of the offense, * * * the court, upon its own motion, may issue a temporary protection
order as a pretrial condition of release if it finds that the safety and protection of the complainant, alleged victim, or other family or household member of the alleged offender may be impaired by the continued presence of the alleged offender.
{¶11} Dolbin contends that although the complaint filed in the domestic violence case involved a family or household member, the complaint did not involve any violations of the statute enumerated in
{¶12} The statute clearly allows a trial court to issue a TPO in cases where the complaint alleges “any offense of violence if the alleged victim of the offense was a family or household member at the time of the commission of the offense.”
{¶13} Accordingly, the Berea Municipal Court acted within its subject matter jurisdiction when it issued the TPO in the domestic violence case. The first assignment of error is overruled.
II. Due Process Violation
{¶14} In his second assignment of error, Dolbin contends that the TPO was issued in violation of his statutory and constitutional right to due process. Specifically, Dolbin contends that neither the victim nor the arresting officer ever moved the trial court for a TPO and, therefore, the court erred in issuing the TPO. Dolbin also argues that despite this procedural deficiency, the court failed to hold the requisite hearing within the statutory time frame. Again, Dolbin‘s arguments are premised on a misreading and incomplete review of
{¶15}
{¶16} Again, the record before this court does not reveal whether Dolbin challenged the issuance of the TPO in the domestic violence case. Nevertheless, and although the record in 15CRB00146 was not transmitted or made a part of this appeal, we can discern from the record before this court that the TPO was issued by the trial court on February 10, 2015 following a complaint for domestic violence.2 However, we cannot discern from the record on appeal what occurred on February 10 when the TPO was issued because that record is not before this court.
{¶17} Therefore, whether the trial court conducted the requisite hearing within the appropriate time frame after the TPO was issued, or whether Dolbin waived his right to a hearing, is undeterminable from the record before this court. In the absence of the actual TPO issued, the case file under which the TPO was issued, or a transcript
{¶18} Accordingly, Dolbin‘s second assignment of error is overruled.
III. Sufficiency of the Evidence
{¶19} In his third assignment of error, Dolbin contends that his conviction is against the sufficiency of the evidence. We agree.
{¶20} A
{¶21} In this case, Dolbin was convicted of violating
{¶22} Our review of this assignment of error is hindered because the TPO at issue is not part of the record. In fact, the trial court noted prior to the start of trial that the TPO was not included in the case file. See tr. 15-16. Nevertheless, prior to and after trial, the trial court seemed to take judicial notice of the content of the TPO. This was improper. A trial court may not generally take judicial notice of prior proceedings in the court, but may only take judicial notice of prior proceedings in the immediate case. State v. Lemley, 4th Dist. Gallia No. 04CA4, 2005-Ohio-155, ¶ 11, citing State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241. The rationale for this holding is that if a court takes notice of a prior proceeding, the appellate court cannot review whether the trial court correctly interpreted the prior case because the record of the prior case is not before the appellate court. Lemley at id., citing Phillips v. Rayburn, 113 Ohio App.3d 374, 680 N.E.2d 1270 (4th Dist.1996). Because the TPO was issued in the domestic violence case and was part of that record, the trial court improperly took judicial notice of a prior proceeding. For the trial court to consider the content of the TPO, it had to be introduced and admitted as an exhibit or stipulated to by Dolbin. Our review of the record reveals that it was neither an exhibit nor a stipulation. Accordingly, any reference to the content of the TPO by the court was in error.
{¶23} In order for the city to prove that Dolbin violated a temporary protection order pursuant to
{¶24} In this case, testimony was presented that on February 22, 2015, a 30-page application of employment containing Dolbin‘s personal contact information, including educational background and work history, was submitted electronically from Dolbin‘s personal email to HealthSpan, Kathleen‘s employer for the past 12 years.3 Kathleen testified that she worked in the human resources department, which received employment applications.
{¶25} Rebecca Vance testified that she received the electronic application, and upon noticing that the application was from her supervisor‘s husband, she showed it to Kathleen. Vance testified that she presented the application to Kathleen because the company has a policy related to conflicts of interest. Kathleen testified that HealthSpan has an anti-nepotism policy, which prohibits employing multiple family members with the company. She further testified that after receiving the application, she contacted the police because she thought it might be a violation of the protection order. (Tr. 34.)
{¶26} Sergeant Greg Madama of the Strongsville Police Department testified that he took the report from Kathleen regarding the alleged violation. He stated that he “confirmed the temporary protection order was intact at the time of the alleged violation” and he subsequently issued the complaint against Dolbin. (Tr. 40.) On cross-examination, he explained why he issued the complaint: “I was looking at the generality of the protection order itself and was there a violation. And that piece of evidence [the application] says that there was. * * * This case, this Court specifically noted in the temporary protection order that Mr. Dolbin was not allowed to have any contact with Mrs. Dolbin‘s employer.” (Tr. 41-42.)
{¶27} Viewing the evidence in the light most favorable to the city, sufficient evidence was presented for the trier for fact to conclude that the application of employment was submitted by Dolbin. However, insufficient evidence was presented for the trier of fact to conclude that this electronic submission was a violation of a term of the TPO that was in place on February 22, 2015. Although Sergeant Madama testified about what the TPO prohibited, this testimony was not offered for the truth of the matter asserted; rather, it was offered to explain why he issued the complaint against Dolbin. Therefore, because it was not offered as substantive evidence, the city could not use this testimony to prove what term of the TPO was allegedly violated. See State v. McKelton, Slip Opinion No. 2016-Ohio-5735, ¶ 128, citing State v. Kirk, 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, ¶ 28 (where hearsay is received for a purpose other than the truth of its content, then the content is not substantive evidence). Furthermore, as previously explained,
{¶28} Because the TPO was not presented as evidence, or stipulated to by the defense, no substantive evidence or testimony was presented explaining what section of the TPO Dolbin violated when his application was sent to his wife‘s employer. Without the TPO itself, a stipulation, or any substantive testimony explaining what the terms and conditions of the TPO included, the city presented insufficient evidence to prove that Dolbin violated the TPO in effect on February 22, 2015. Accordingly, Dolbin‘s third assignment of error is sustained.
{¶29} Judgment reversed and remanded for the trial court to enter an order vacating Dolbin‘s conviction.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR