On April 30, 2013, the Supreme Court handed down a merit decision in State v. Smith, Slip Opinion No. 2013-Ohio-1698. This guest post on the merit decision in this case is by my colleague Kenyatta Mickles, Director of the University of Cincinnati College of Law Domestic Violence and Civil Protection Order Clinic. In a 4-3 decision written by Justice Kennedy, the Court concluded that in order to sustain a conviction for violation of a civil stalking or sexually-oriented offense protection order (SSOOPO), the state must prove beyond a reasonable doubt that the defendant was served with the order before the alleged violation. The Court reversed the judgment of the court of appeals and remanded the matter to the trial court for further proceedings consistent with its decision. Justice Lanzinger wrote the dissent for herself, Justice French, and Chief Justice O’Connor. Read Professor Mickles’ guest oral argument preview of this case here.
On April 12, 2010, Smith’s ex-girlfriend, Shasta Pickens, petitioned the court for an ex-parte SSOOPO. The petition was granted that day and an ex-parte order was issued. On the same day the clerk issued an order requiring the Sheriff to serve a certified copy of the order and make a return of service reporting whether or not Smith was served. Pickens testified that she showed a copy of the order to Smith and told him that he was not allowed to be around her. She believed she did this on April 16, 2010. Smith had not yet been served with the order on that date. On April 17, 2010, Smith came to Pickens’ home and assaulted her. The police were called and Smith was arrested. Smith was served on the day that he was arrested. The state does not refute Smith’s contention that service was effected after the incident occurred. Among other crimes, Smith was found guilty of violating the protection order. Smith appealed on the basis that without proof of service prior to the alleged incident, there was insufficient evidence to establish that at the time of the alleged altercation Smith knew there was a protection order in place. Therefore, the state failed to prove that Smith had recklessly violated the order within the meaning of R.C. 2919.27(A)(2). The Supreme Court agreed.
The majority focuses on the delivery language of R.C. 2903.214, the SSOOPO statute, whereas the dissent’s focus is on the recklessness element of R.C. 2919.27, the violation statute.
The majority reaches its conclusion by focusing on the service requirements under R.C. 2903.214. That statute states that the court shall cause the delivery of a copy of any protection order…on the respondent. The order shall direct that a copy of the order be delivered to the respondent on the same day that the order was entered. The Court says that delivery and service are synonymous in this context. Therefore, in order for there to be proper service upon the respondent, the court must ensure the transfer of possession of a copy of the protection order to the respondent. It is at this point that the protection order is fully issued by the court. After these requirements are met, the respondent may be charged with any alleged violations of the protection order under R.C. 2919.27. The high court supports this position by pointing out that the language of R.C. 2903.214(K)(1) which reads a person who violates a protection order issued under this section is subject to sanctions under R.C. 2919.27. The Court incorporates the requirements of R.C. 2903.214 into 2910.27(A)(2). Therefore, the state must establish beyond a reasonable doubt that defendant was served with the order before the alleged violation. The Court held that since evidence of compliance of the delivery requirement before the alleged offense is essential in establishing a violation of the protection order, there was insufficient evidence to sustain Smith’s conviction for violating the protection order.
The dissent takes the position that the elements that the state must prove beyond a reasonable doubt are found in R.C. 2919.27. The elements that must be proven are that on April 17, 2010, in Franklin County, Smith recklessly violated the protection order issued. Thus, the dissent’s focus is on whether the defendant knew or had knowledge of the order’s existence and disregarded it. Based on the testimony of Pickens, the defendant did know that the order existed and that he had to stay away from her because she informed him of these facts on April 16, 2010. If Pickens’ testimony is believed and it is proven that after receiving this information the defendant did not stay away from Pickens, then the defendant can be charged and convicted for violation of the protection order. Thus, proof of service or delivery is not needed for a conviction. However, proof of service or delivery may be relevant in determining whether there was proof beyond a reasonable doubt that the defendant acted recklessly.
Professor Mickle’s Observations
The majority decision is not surprising. Incorporating the requirements of R.C. 2903.214 into R.C. 2919.27 is the logical conclusion. A mere showing of the order by the petitioner and a statement that Smith had to stay away from her was not sufficient service as required under the statute. Clearly, it is not the intent of the statute to expect the protected party to put the respondent/defendant on notice or to deliver a copy of the order to the respondent/defendant; that would be contrary to the purpose of the order, to wit, to protect the petitioner from any further harm or contact with the respondent.
However, this case raises other issues regarding service of protection orders. Pickens obtained the order on April 10, 2010. It took seven days to perfect service. It is not clear why service took so long. However, it is not uncommon for service to go unperfected for weeks. This is concerning, because based on the majority opinion, the respondent could continue to behave in a manner that is deemed inappropriate by the petitioner and yet go unpunished. Many times the respondent’s behavior is not as extreme as Smith’s; however the petitioner wants to be left alone and for the respondent to have no further contact with her. Some examples are making unwanted phone calls to the petitioner, sending unwanted gifts, or relaying non-threatening messages through third parties. These behaviors are typical of abusers who are attempting to reconcile with a victim who is taking steps to end the relationship and abuse. A phone call, a gift, or a non-threatening message will typically not give rise to any criminal charges independent of a violation of the order. Changes to the statute regarding service could remedy this issue. For instance, leaving notice of the ex-parte order and a location to pick up the order in a conspicuous place could be considered service. Another option is to mail the order to the respondent if personal service cannot be made on the same day that the order issued. Changes need to be made to the statute regarding service in order for respondents to be held responsible for violations of the order.
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. (R.C. 2903.214(F)(1), construed.)