Guest Oral Argument Preview. Proper Service of a Civil Protection Order. State v. Robert L. Smith, Jr.

Update: On April 30, 2013 the Court handed down a merit decision in this case.  Read the analysis by Prof. Mickles here.

On January 23, 2013 the Supreme Court of Ohio will hear oral argument in State v. Robert Smith, Jr.,  2012-Ohio-0239. This oral argument guest preview post is written by Kenyatta Mickles, my colleague at the University of Cincinnati College of Law and Director of our Domestic Violence and Civil Protection Order Clinic. Here’s her preview.

Guest Preview

This appeal involves Smith’s conviction for violating a stalking civil protection order.  There are two arguments at issue (1) was Smith properly served with the protection order and (2) if not, can he be criminally prosecuted for violating an ex-parte protection order if the order was not “served” upon him.

On April 12, 2010, Smith’s ex-girlfriend petitioned for a protection order against Smith under R. C. 2903.214.  On that same day, she obtained the ex-parte order and a copy of the order was delivered to the sheriff to serve upon Smith.  On April 16, 2010, Smith’s ex-girlfriend showed Smith a copy of the protection order and told him “he’s not allowed to be around” her.  On April 17, 2010, Smith entered his ex-girlfriend’s home through the basement window.  He stated, “Yeah, bitch, you thought it was over.” He assaulted and strangled her causing her to pass out.  The full hearing for the protection order was held on April 22, 2010.  On April 27, 2010, Smith was indicted for aggravated burglary, resisting arrest, domestic violence, and violating the protection order.  He was convicted of all counts except for domestic violence, which had been previously dismissed.

Smith appealed and requested that the appeals court vacate his convictions for violating the protection order and discharge the protection order charge.  Smith also requested that the court vacate the conviction for aggravated burglary and remand the case for a new trial on the charge of aggravated burglary based on Smith’s position that the protection order was not enforceable at the time of the alleged entry into his ex-girlfriend’s home. The Tenth District Court of Appeals affirmed the convictions. The Ohio Supreme Court accepted review in the case.

Before I go into the arguments by each party, I first must point out (and the parties acknowledge this in their briefs) the protection order was issued pursuant to R. C. 2903.214, the menacing by stalking protection order statute; not R. C. 2919.26, the temporary protection order statute, as argued in their briefs.  Both parties agree that they mistakenly relied on R. C. 2919.26 and there are no material differences between R. C. 2903.214 and R. C. 2919.26.  Although I do find that there are differences in how these orders are issued and that the likelihood of success of serving the perpetrator increases with the issuance of a temporary protection order, I will focus on the parties’ arguments in this case.

Smith’s Argument

Smith’s argument focuses on whether or not Smith was properly served and given sufficient notice that contact with his ex-girlfriend would be a violation of the protection order.  Smith asserts that there is no evidence that the petition and order were ever served, and no evidence that the order was served before the alleged conduct in the case.  Therefore, the State did not prove that the order was issued.   Also, under Civ. R. 4.1(B), service is required by someone over eighteen who is not a party to the case.

Smith argues that R.C. 2919.27 (violating a protection order) must be strictly construed.  He relies on State v. Mohabir, 2005-Ohio-78 (5th dist.) which states, “The protection order statute makes criminal conduct that would otherwise be legal; therefore, the statute’s requirements must be strictly construed in favor of the defendant and against the state.”  Furthermore, penalties for violations of the protection orders are so severe that the state must comply with the service requirement.  Therefore, according to Smith, once the ex-parte was issued, the protection order must be properly served upon him. His ex-girlfriend’s acts of showing him the protection order and showing him a copy of the order was not enough.

State’s Argument

The State argues the legislative intent was that the order be issued and thus valid, after the ex-parte hearing.  In support of this argument, the State points out a section of R. C. 2903.214 which states that the order does not expire even when service fails.

In rebuttal to Smith’s claim that service is required under Civ. R. 4.1(B), the State asserts that R.C. 2903.214 only requires “delivery” not “service.”  R.C. 2903.214(F)(1) states in pertinent part that the court shall cause the delivery of a copy of any protection order that is issued to the respondent and direct that a copy of the order be delivered to the respondent on the same day that the order is entered.  The State believes that this burden was met when the court ordered the sheriff to serve Smith.

The State also argues that whether or not the protection order was delivered or served upon Smith is not relevant because service of a protection order is not an element of the crime of violating a protection order, as defined in R.C. 2917.27(A).  The statute reads:  No person shall recklessly violate the terms of a protection order issued or consent agreement approved pursuant to R.C. 2903.214.  Whoever violates this section is guilty of violating a protection order.  The State argues that where the language of the statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory construction. R.C. 2917.27 only requires the State prove that defendant recklessly violated the protection order pursuant to 2903.214. Thus, Smith recklessly violated the protection order because his ex-girlfriend showed Smith the protection order and told him that he was not allowed to be around her and Smith disregarded a known risk by going to back to his ex-girlfriend’s home the next day.

Analysis and Observations

The courts that have ruled on this issue are mostly in agreement.  A respondent/defendant can be criminally prosecuted for violation of a protection order so long as the evidence shows that respondent has notice of the petition and notice of the hearing.  Service is not necessary for the respondent to be criminally prosecuted and convicted under R.C. 2919.27 because service is not an element under R.C. 2919.17.  Having notice shows that the conduct was reckless.  However, the court has no authority to punish an individual for violating an ex-parte order until the respondent/defendant has knowledge of its terms.

This issue poses many public policy concerns regarding the service or delivery of protection orders on respondents. Victims seeking protection from a perpetrator of violence have the option of seeking ex-parte protection orders from the court.  A perpetrator that is aware that the victim may seek a protection order may attempt to avoid service of the order by not answering the door when the sheriff attempts to deliver the order or not picking up the order from the sheriff’s office.  Many perpetrators believe that since they have not been served with the protection order, they cannot be criminally prosecuted for violating the order.  Therefore, harassment and unwanted contact may continue without the perpetrator being held criminally responsible.  This is contrary to the purpose of ex-parte protection orders, which is to provide immediate protection from any further abuse, harassment, and threatening behavior.

Victims who experience continued victimization after obtaining an ex-parte protection order tend to lose faith in the legal system and may stop reporting abusive behavior or violations of the order.

However, there is a strong argument in favor the respondent’s right to know that behavior that may have been legal (such as a non-threatening phone call) is no longer legal. The respondent should be given notice that some behaviors are no longer allowed, and in fact criminal prior to being criminally prosecuted for violations.

It is very difficult to strike a balance between protecting the petitioner and the rights of the respondent. It will be interesting to see what the Court decides.

Pertinent Case Law

State v. Bunch, 2001 Ohio App. LEXIS 99 (9th dist.) In Bunch, the respondent’s ex-girlfriend filed a petition for a CPO.  The respondent was served with the ex-parte order, the petition, and notice of the hearing.  After the full hearing, a five year protection order was issued. The ex-girlfriend told Bunch that he could not be around her because she had obtained a CPO.  Bunch responded, “I know”.  Bunch subsequently violated the protection order by showing up at his ex-girlfriend’s home.  He was convicted.  On appeal he argued that he was never served with the CPO, but did receive the petition and notice of the hearing.  The conviction was affirmed. The court held that R.C. 2919.27 does not require that service of a CPO be accomplished upon the person against whom a CPO is issued before the person can be found to have violated the order.  Also see, State v. Rutherford, 2009-Ohio-2071 (2nd dist.) where the defendant’s conviction for violating the protection order was affirmed despite his argument that he was never served with the protection order, but he had knowledge of the protection order.  In both of these cases the defendants argued that they were not served with the protection that resulted after they were given notice of the full hearings.

On the contrary, City of Toledo v. Lyphout, 2009-Ohio-4956 (6th dist.) the respondent was not served with the ex-parte.  He was convicted for violating the ex-parte.  The court reversed the conviction and held that absent proper service or actual notice of the prohibited behavior, appellant cannot be held criminally liable for disobedience of the order’s terms.

Smith’s Proposed Proposition of Law

A civil protection order is not enforceable until it has been lawfully served.

State’s Proposed Counter Proposition of Law

Service of a protection order on a defendant is not an element of the crime of violating a protection order, as defined in R.C. 2919.27(A).

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