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State v. Doss

Court of Appeals of Ohio, Second District, Champaign

June 7, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JOSEPH H. DOSS Defendant-Appellant

          Criminal Appeal from Municipal Court Trial Court Case No. 2018-CRB-493

          ROGER A. STEFFAN, Atty. Reg. No. 0086330, Assistant Municipal Prosecutor, City of Urbana, Attorney for Plaintiff-Appellee

          REGINA ROSEMARY RICHARDS, Atty. Reg. No. 0079457, Attorney for Defendant-Appellant

          OPINION

          HALL, J.

         {¶ 1} Joseph Doss appeals his conviction for violating a civil protection order. We determine the evidence was insufficient to establish that Doss was properly notified of the civil protection order before he was alleged to have violated it, and we further conclude the trial court's failure to instruct the jury on the element of notice of the protection order was plain error. We reverse the judgment of the trial court and vacate the conviction.

         I. Facts and Procedural History

         {¶ 2} On May 21, 2018, Doss's wife, Holly, was granted an ex parte domestic violence civil protection order (CPO) against him. (Holly had recently initiated divorce proceedings.) The CPO barred Doss from initiating or having any contact with Holly, including by way of text messages. At 2:28 a.m., on June 7, Doss sent Holly a text message saying, "I sure do miss you baby." Holly immediately called the police, and Doss was arrested and charged with violating the CPO.

         {¶ 3} The case was tried to a jury in Champaign County Municipal Court. Holly testified that the CPO was issued in the morning, and that in the afternoon she texted Doss that his daughter was trying to call him, because it was her birthday. After first responding that he was on the phone, Doss texted back: "I'm free now. However, perhaps due to the apparent level of emotional distress that caused [the child], perhaps we's [sic] see fit to wait until some more orders are in-place regarding visitation so I can say with certainty when I will be able to see them. Otherwise, please precede [sic] the girl's phone calls[.]" (Exhibit B; Tr. 96). Holly testified that the next text message she received from Doss was the June 7 message. She said that before the CPO was issued on May 21, she would receive ten to twenty messages a day from him. Holly testified that she did not tell Doss about the CPO. She said that she did not know whether Doss was served with the CPO and could not recall any other hearing about the order. The CPO itself has no proof-of-service. It states only instructions that Doss was to be served and that he could be found at 451 Scioto Street in Urbana.

         {¶ 4} Officer Hiltibran of the Urbana Police Department was the officer who responded to Holly's initial call. He testified that the first thing Holly said to him when he arrived was that she wanted Doss charged. Officer Hiltibran took a picture of the June 7 text message and confirmed that there was a CPO. He testified that he then went to 179 Camelot Street in Urbana, where he found Doss, told him about the CPO, and arrested him.

         {¶ 5} After the state rested, Doss moved for an acquittal under Crim.R. 29, arguing that the evidence was insufficient to prove that he had proper notice of the CPO. The trial court overruled the motion and gave the case to the jury. The court did not instruct the jury on the element of the offense that the state was required to prove that Doss was either served with the protective order, shown the order, or informed of it by proper authorities. R.C. 2919.27(D). The jury returned a guilty verdict. Before sentencing, Doss renewed his motion for acquittal, which the trial court also overruled. The court sentenced him to a jail term and ordered him to pay a fine and costs.

         {¶ 6} Doss appeals.

         II. Analysis

         {¶ 7} Doss's sole assignment of error alleges:

The conviction violates Defendant-Appellant's right to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and the Art. I, Sec. XIV of the Ohio Constitution because the evidence was insufficient to prove every essential element of the offense charged beyond a reasonable doubt where the prosecution failed to show service or notice of ...

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