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State v. Vandyne

Court of Appeals of Ohio, Second District

August 2, 2013

STATE OF OHIO Plaintiff-Appellee
JEREMY M. VANDYNE Defendant-Appellant

Criminal appeal from Municipal Court) T.C. NO. 12CRB3101

MARC T. ROSS, Atty. Reg. No. 0070446, Assistant City Prosecutor, Attorney for Plaintiff-Appellee.

ANTHONY W. SULLIVAN, Atty. Reg. No. 0062416, Attorney for Defendant-Appellant.



{¶ 1} Jeremy M. Vandyne was convicted of violating an ex parte civil protection order after a bench trial in the Clark County Municipal Court. The court sentenced him to 30 days in jail, all of which was suspended on the conditions that he pay a $250 fine and court costs by January 11, 2013, and that he have no violation of the protection order for six months.

{¶ 2} Vandyne appeals from the trial court's judgment, claiming that the trial court erred in allowing the State to offer the protection order at trial when it was not provided to defense counsel during discovery. He further claims that his conviction was based on insufficient evidence and was against the manifest weight of the evidence. For the following reasons, we will affirm the trial court's judgment.

I. Factual and Procedural History

{¶ 3} The State's evidence at trial established the following facts:

{¶ 4} Vandyne and Amanda Penewit were divorced on March 19, 2010. The couple has two children together, and Penewit has a daughter from a prior relationship. On March 29, 2012, Penewit obtained an ex parte civil protection order (CPO) from the Greene County Court of Common Pleas, Domestic Relations Division. Vandyne was served with the CPO on April 4, 2012. The CPO prohibited Vandyne from being within 500 feet of Penewit or any place she was likely to be. The CPO further provided, "If Respondent accidentally comes in contact with protected person in any public or private place, Respondent must depart immediately" (Emphasis in original.)

{¶ 5} On July 24, 2012, Vandyne was at the Clark County Fair with his girlfriend, April, and April's daughter. At 5:45 p.m., they were in the sheep barn, where there was an area for sheep and a separate area for rabbits. A few minutes later, Penewit came into the sheep barn with her three children to watch the bunny scramble that was to begin there at 6:00 p.m. She saw Vandyne, April, and April's ex-husband, Jerry Mendenhall, on the other side of the sheep barn, approximately 50-100 feet away. Penewit made eye contact with April and Vandyne. She later saw Vandyne pointing her out to Mendenhall.

{¶ 6} The bunny scramble lasted 45 minutes to one hour. According to Penewit and her oldest daughter (who was eleven at the time of trial), Vandyne remained in the sheep area for the duration of the bunny scramble. Near the end of the bunny scramble, Mendenhall approached Penewit and the children, said hello to Penewit, and then said hello for Vandyne to Penewit and Vandyne's two younger children. At that juncture, Penewit and her children left the sheep area and went to the Sheriffs Office's command center at the fair. Penewit reported Vandyne's conduct to Deputy Douglas Peterson.

{¶ 7} Deputy Peterson paged Vandyne over the fair's intercom system, but Vandyne did not come to the command center. Other deputies located Vandyne a couple of hours later in the midway area of the fair, and Vandyne was arrested. Vandyne told Deputy Peterson that he did not think that he had violated the CPO.

{¶ 8} Vandyne and Mendenhall testified on Vandyne's behalf They testified that Vandyne, April, April's daughter, and another child were in the sheep pen of the sheep barn prior to 6:00 p.m. Mendenhall arrived around 5:45 p.m. When Penewit arrived, Mendenhall asked Vandyne if he (Mendenhall) could say hello to her. Mendenhall approached Penewit before the bunny scramble began, and Vandyne left the sheep barn immediately after Penewit arrived in order to register April and Mendenhall's daughter for the award ceremony. The registration for the award ceremony closed at 6:15 p.m.

{¶ 9} Vandyne was charged with violating a protection order, in violation of R.C. 2919.27(A)(1), a first-degree misdemeanor. After a bench trial, the trial court found Vandyne guilty of the offense. The court noted that it was undisputed that there was a protection order, that Vandyne was served with that order, and that he was within 500 feet of Penewit at the Clark County Fairgrounds on July 24, 2012. The court identified the principal issue as whether Vandyne departed immediately when he knew that he was within the distance prohibited by the CPO. The court stated that Penewit's testimony on that issue was "somewhat problematic" in that she testified both that she did not know if Vandyne had left immediately and that Vandyne had remained for the entire bunny scramble. The trial court noted, however, that Penewit's daughter "did testify that the Defendant was also * * * present * ...

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