Strongsville v. N.D.

Citation: 2016 Ohio 7484Docket: 103844

Court: Ohio Court of Appeals; October 27, 2016; Ohio; State Appellate Court

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N.D. appealed his conviction for violating a domestic violence protection order, leading to a reversal and remand by the Court of Appeals of Ohio. Initially charged with two counts of domestic violence, N.D. pleaded not guilty, and a temporary protection order (TPO) was issued against him prohibiting contact with his wife, K.D. Subsequently, he faced charges for violating the TPO. 

N.D. was acquitted of the domestic violence charges after a jury trial but contested the validity of the TPO, arguing that it was improperly issued without a hearing, as required by R.C. 2919.26. The trial court denied his motion to dismiss. During the trial for the TPO violation, the city dropped one of the counts, and N.D. was found guilty of the remaining count based on evidence that he applied for a job at his wife's workplace. He received a $100 fine and court costs.

On appeal, N.D. raised three assignments of error, including a challenge to the municipal court's subject matter jurisdiction regarding the TPO. The appellate court noted that while the TPO was issued in relation to the domestic violence charges, whether N.D. contested the jurisdiction in the original case was not documented. Nevertheless, it affirmed that municipal courts have original jurisdiction over the issuance and enforcement of TPOs as specified in R.C. 2919.26.

The court issued a temporary protection order (TPO) under R.C. 2919.26, which allows for such an order when the alleged victim is a family or household member and there is an offense of violence. N.D. argued that the TPO was improperly issued, claiming the complaint did not involve violations listed in R.C. 2919.26. However, the court clarified that domestic violence qualifies as an offense of violence and that N.D.’s wife, as a family member, meets the statute's criteria. Consequently, the Berea Municipal Court had subject matter jurisdiction to issue the TPO, leading to the overruling of N.D.'s first assignment of error.

Regarding N.D.'s second assignment of error, he claimed a due process violation because neither the victim nor the arresting officer requested the TPO, and he argued that a timely hearing was not held. The court noted that R.C. 2919.26(D)(1) permits a court to issue a TPO on its own motion if it finds that the presence of the alleged offender may impair the safety of the victim. The court acknowledged that the record did not indicate whether N.D. challenged the TPO issuance or whether a hearing was held, as the relevant records were not included in the appeal. In the absence of these records, the court presumes that the proceedings were regular and that N.D. received due process, thus overruling his second assignment of error.

In response to N.D.'s third assignment of error, which claimed that his conviction was unsupported by sufficient evidence, the court agreed with this assertion.

A Crim. R. 29 motion addresses the sufficiency of evidence for a criminal conviction, requiring an evaluation of whether the prosecution has met its burden of production at trial. An appellate court assesses if the evidence, viewed favorably for the prosecution, could convince a rational juror of the defendant's guilt beyond a reasonable doubt. The prosecution must provide prima facie evidence of all elements of the charged offense. In this case, N.D. was convicted for violating R.C. 2919.27(A)(1), which prohibits reckless disregard for a protection order. Recklessness is defined as a heedless indifference to known risks. 

The review of this case is complicated by the absence of the temporary protection order (TPO) in the record, as the trial court improperly took judicial notice of its content without it being formally introduced as evidence. For the prosecution to establish a violation of the TPO, it must demonstrate that the order was in effect at the time of the alleged violation. Testimony indicated that on February 22, 2015, N.D. submitted an employment application to K.D.'s employer, HealthSpan, which raised concerns about conflict of interest due to company policy against nepotism. K.D. contacted the police believing this action constituted a violation of the protection order.

Sergeant G.M. from the Strongsville Police Department confirmed the existence of a temporary protection order (TPO) against N.D. at the time of the alleged violation reported by K.D. He issued a complaint against N.D. based on the general terms of the TPO, which explicitly prohibited contact with Mrs. D.’s employer. Although the application related to this violation was admitted into evidence, it was not provided to the court for the appeal. The court determined that while there was enough evidence to suggest N.D. submitted an employment application, there was insufficient evidence to establish that this submission violated the TPO in effect on February 22, 2015. Sergeant G.M.'s testimony was not considered substantive evidence regarding the TPO's terms, and the lack of the TPO itself or any stipulation left the city unable to prove a violation. Consequently, N.D.'s conviction was reversed and remanded for vacating, with costs awarded to the appellant. The court recognized reasonable grounds for the appeal and directed that a certified copy of the entry serve as the mandate.