Court of Appeals of Ohio, Second District, Champaign
Criminal Appeal from Municipal Court Trial Court Case No.
A. STEFFAN, Atty. Reg. No. 0086330, Assistant Municipal
Prosecutor, City of Urbana, Attorney for Plaintiff-Appellee
ROSEMARY RICHARDS, Atty. Reg. No. 0079457, Attorney for
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.
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
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.
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 ...