[Cite as State v. Schell, 2017-Ohio-2641.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.     28255

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ERIC SCHELL                                           COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2014 09 2912

                                  DECISION AND JOURNAL ENTRY

Dated: May 3, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, Eric Schell, appeals the judgment of the Summit County Court of

Common Pleas that convicted him for violation of a protection order. For the reasons set forth

below, this Court affirms.

                                                 I.

        {¶2}     Pursuant to R.C. 2903.214, D.B., the complaining victim, filed a petition for a

civil stalking protection order. Following an ex parte hearing, the magistrate granted D.B. and

his wife, J.B., an ex parte temporary protection order against Mr. Schell.        The Order of

Protection was granted on April 10, 2014 and was in effect until April 9, 2017.

        {¶3}     The full hearing on the protection order was held more than two years later. The

delay in the full hearing arose from the parties’ joint motions to continue the hearing for

discovery and the disposition of this criminal matter.
                                                 2


       {¶4}    Mr. Schell was indicted on October 7, 2014 for intimidation and violation of a

protection order issued pursuant to R.C. 2903.214. These charges arose from allegations that he

was continually harassing various Village of Lakemore officials and employees. He proceeded to

trial and the jury found him guilty of violating the protection order, but failed to convict on the

intimidation charge pertaining to other Village of Lakemore employees.

       {¶5}    Mr. Schell has timely appealed his conviction and raises five assignments of error.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       APPELLANT’S CONVICTION WAS BASED UPON INSUFFICIENT
       EVIDENCE TO SUSTAIN [THE] CONVICTION. THE TRIAL COURT
       ERRED BY DENYING APPELLANT’S CRIM.R. 29 MOTION.

       {¶6}    In his first assignment of error, Mr. Schell argues that there is insufficient

evidence to uphold his conviction for violating a protection order. Specifically, Mr. Schell argues

the State did not prove 1) he was served with the protection order, and 2) he violated the

protection order.

       {¶7}    “‘[This Court] review[s] a denial of a defendant’s Crim.R. 29 motion for acquittal

by assessing the sufficiency of the State’s evidence.’” State v. Bulls, 9th Dist. Summit No.

27029, 2015-Ohio-276, ¶ 6, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-

634, ¶ 33. When reviewing the sufficiency of the evidence, this Court must review the evidence

in a light most favorable to the prosecution to determine whether the evidence before the trial

court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
                                                   3


        any rational trier of fact could have found the essential elements of the crime
        proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

        {¶8}    A sufficiency challenge to a criminal conviction presents a question of law, which

the appellate court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v.

Trifari, 9th Dist. Medina No. 08CA0043-M, 2009-Ohio-667, ¶ 12. Although the standard of

review is de novo, the appellate court does not resolve evidentiary conflicts or assess the

credibility of witnesses, because these functions belong to the trier of fact. State v. Tucker, 9th

Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.

        {¶9}    Mr. Schell was found guilty of violating a protection order pursuant to R.C.

2919.27(A)(2), which states “[n]o person shall recklessly violate the terms of * * * [a] protection

order issued pursuant to section * * * 2903.214 of the Revised Code.” “A person acts recklessly

when, with heedless indifference to the consequences, the person disregards a substantial and

unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a

certain nature.” R.C. 2901.22(C).

        {¶10} A protection order must be served on the defendant prior to the alleged violation.

State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, syllabus. Served means actual delivery of the

protection order to the defendant, and not mere knowledge or notice that a protection order was

issued. Id. at ¶ 19.

        Service

        {¶11} Mr. Schell argues for the first time on appeal that there is no evidence of service

of the temporary protection order upon him. On appeal, Mr. Schell challenges the authenticity of

State’s Exhibit 34, the service slip, in support of his position that the State failed to present

evidence that he was served the protection order. While Mr. Schell objected to Captain Ray’s
                                                 4


testimony authenticating the service slip and to the admission of the service slip, Mr. Schell did

not assert a failure to serve argument in his Crim.R. 29 motion for judgment. A review of Mr.

Schell’s Crim.R. 29 motion reveals that his only argument regarding the protection order charge

was that D.B.’s testimony was not credible as to the conduct giving rise to a violation.

       {¶12} This Court has repeatedly held that when an appellant sets forth specific grounds

in a Crim.R. 29 motion, he forfeits all other arguments on appeal. State v. Partee, 9th Dist.

Summit No. 23643, 2007-Ohio-5114, ¶ 22, citing State v. Hilton, 9th Dist. Summit No. 21624,

2004-Ohio-1418, ¶ 8, citing State v. Swanner, 4th Dist. Scioto No. 00CA2732, 2001 WL

548719, *6 (May 18, 2001); and State v. Cayson, 8th Dist. Cuyahoga No. 72712, 1998 WL

241949, *2 (May 14, 1998), citing United States v. Dandy, 998 F.2d 1344, 1356-57 (6th

Cir.1993) (stating that “[a]lthough specificity of grounds is not required in a [Crim.R. 29]

motion, where a [Crim.R. 29] motion is made on specific grounds, all grounds not specified are

waived.” (Citation omitted.)). Because Mr. Schell asserted a specific ground for his Crim.R. 29

motion, but did not include an argument regarding service, he has forfeited this argument.

Therefore, this Court is precluded from addressing Mr. Schell’s argument regarding the failure to

serve the protection order.

       Violation of Protection Order

       {¶13} Mr. Schell argues there is insufficient evidence proving beyond a reasonable

doubt that he violated the protection order. Specifically, he notes the State’s witnesses could not

discern what he said and to whom he said it, and there are discrepancies between D.B.’s

statements to the police and his trial testimony. These appellate arguments mirror the specific

ground argued in the Crim.R. 29 motion.
                                                  5


       {¶14} D.B. testified he filed a request for a protection order against Mr. Schell for the

protection of himself and his wife, J.B. On April 10, 2014, the magistrate granted an ex parte

Order of Protection which ordered Mr. Schell not to “* * *, threaten, follow, stalk, harass, * * *

[D.B. or J.B.].” The Order of Protection specified Mr. Schell “shall not initiate or have any

contact with [D.B. and J.B.] or their residences, businesses, places of employment, * * *.”

(Emphasis deleted.) Nor shall Mr. Schell “interfere with the * * * business [or] place of

employment” of D.B. or J.B.

       {¶15} Additionally, there is a provision requiring Mr. Schell to stay away from D.B. and

J.B. and to not be within 500 feet of them, including on roadways, private roads, and

thoroughfares. If Mr. Schell were to “accidently come[] in contact with [D.B. or J.B.] in any

public or private place, [he] must depart immediately.” (Emphasis sic.) The Order clarifies that

“[i]t shall not be a violation of the 500 ft[.] rule for [Mr. Schell] to be on his own property, travel

on the public roads, or get his mail near Lakemore City Hall. It shall be a violation to threaten or

harass [D.B. or J.B.] while doing so.” (Emphasis deleted.)

       {¶16} D.B. works for the Village of Lakemore as a water operator. One of his job duties

is road paving. On August 27, 2014, D.B., his supervisor, and a co-worker were making repairs

to Lakeside Drive, between Ackers Avenue and Hilda Street. Mr. Schell lives at the corner of

Lakeside Drive and Ackers Avenue. His parcels form an L-shape, providing him frontage on

Lakeside Drive, Ackers Avenue, and Hilda Street.

       {¶17} As D.B. was repairing the road, he observed Mr. Schell standing on his property

taking pictures of him. A short time later, Mr. Schell drove out of his driveway onto Ackers

Avenue. He turned left onto Lakeside Drive and approached the area where D.B. was working.

Mr. Schell drove past the work area and turned left on the next road, Hilda Street. He turned his
                                                 6


truck around in his driveway on Hilda Street and headed back towards Lakeside Drive. Mr.

Schell turned right onto Lakeside Drive and again approached the worksite.

       {¶18} D.B. testified that as Mr. Schell approached the work area a second time, he

swerved his truck toward D.B. and the machine he was operating. As Mr. Schell did this, he

yelled something in the direction of the work area. D.B.’s supervisor also heard Mr. Schell

“hollering,” but did not see Mr. Schell swerve his truck. Neither D.B. nor his supervisor were

able to hear what Mr. Schell said. Mr. Schell proceeded to turn right on Ackers Avenue and

pulled back into his driveway, returning home.

       {¶19} Taking the evidence in the light most favorable to the prosecution, the jury could

reasonably conclude beyond a reasonable doubt that Mr. Schell recklessly violated the protection

order. The record shows a temporary protection order was issued prohibiting Mr. Schell from

being within 500 feet of D.B. and initiating contact with him. While the protection order

permitted Mr. Schell to be within 500 feet of D.B. while on his own property or when traveling

on a public road, he was not permitted to threaten or harass D.B. Although standing on his own

property, Mr. Schell photographing D.B. as he worked is evidence of his heedless disregard of

the protection order and any resulting consequences.

       {¶20} Moreover, the evidence shows that Mr. Schell knew D.B. was working on the

road near his house because he was taking pictures of D.B. as he worked. Thus, Mr. Schell’s

contact with D.B. as he drove on Lakeside was not accidental, but reckless. While Mr. Schell

was permitted to drive on Lakeside and the surrounding streets, the evidence shows that he left

his home, drove past the worksite, turned around, and came back to the worksite, at which time

he swerved at D.B. and yelled in his direction, and then returned home. Again, Mr. Schell acted

with heedless indifference towards the dictates of the protection order when he entered the
                                               7


roadway to initiate contact with D.B., to harass or threaten D.B., and to interfere with D.B.’s

place of employment, all of which are violations of the protection order. The evidence does not

support Mr. Schell’s contact as being unintentional or accidental. Even presuming Mr. Schell’s

initial contact was accidental, the protection order mandated he depart immediately. Instead, Mr.

Schell circled back around to D.B.’s location and swerved toward him.

       {¶21} Mr. Schell argues there is no evidence that he violated the protection order

because there was no testimony as to what he said and to whom he said it. Mr. Schell points to

D.B.’s testimony that he assumed Mr. Schell was yelling at him even though there were two

others persons present at the worksite. The uncertainty as to what Mr. Schell said and to whom it

was directed is immaterial because there is evidence that Mr. Schell threatened or harassed D.B.

by his conduct, as explained above.

       {¶22} Mr. Schell also challenges the sufficiency of the evidence based on the “radically

different” recollections of the events by D.B. and his supervisor. Both D.B. and his supervisor

heard Mr. Schell yelling as he drove by, but neither know what Mr. Schell said. Their testimony

differs as to the number of times Mr. Schell passed the worksite, when Mr. Schell yelled, and

whether Mr. Schell swerved the truck.

       {¶23} D.B. testified that Mr. Schell drove by the worksite, turned around, and drove past

the worksite a second time. According to D.B., the yelling and swerving occurred in the second

passing. The supervisor testified he only saw Mr. Schell pass by once, heading towards Hilda

Street, before driving off. According to the supervisor, the yelling occurred at that time and he

did not see Mr. Schell swerve the truck.

       {¶24} Because there was conflicting evidence, it was the function of the jury to weigh

the evidence and assess the credibility of the witnesses in arriving at its verdict. Where
                                                   8


reasonable minds can reach different conclusions upon conflicting evidence, a determination as

to what occurred is a question for the trier of fact. It is not the function of this Court to substitute

its judgment for that of the factfinder. Rather, this Court reviews the evidence in the light most

favorable to the prosecution. Despite the conflicting testimony as to the number of times Mr.

Schell drove by and when he yelled, there is evidence, as set forth above, that Mr. Schell did

drive by D.B. and did yell toward the workers. A rational trier of fact could have found that Mr.

Schell recklessly violated the protection order with such conduct.

       {¶25} Lastly, Mr. Schell points to discrepancies between D.B.’s statements to the police

and his trial testimony. This is a challenge to D.B.’s credibility. “When a defendant challenges

the sufficiency of the evidence, [this Court does] not evaluate credibility.” State v. Delrossi, 9th

Dist. Summit No. 26943, 2014-Ohio-4457, ¶ 8.

       {¶26} Viewing the evidence in a light most favorable to the State, there is sufficient

evidence for a rational trier of fact to have found the essential elements of violating a protection

order proven beyond a reasonable doubt. See Jenks, 61 Ohio St.3d 259, at paragraph two of the

syllabus. Mr. Schell’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR NO. 2

       THE JURY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶27} In his second assignment of error, Mr. Schell argues his conviction is against the

manifest weight of the evidence because the State failed to present any evidence that he violated

the protection order. The State points to Mr. Schell’s failure to undertake any analysis of the

persuasiveness of the State’s evidence and urges this Court to decline to review the weight of the

evidence argument.
                                                 9


       {¶28} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387. While the test of

sufficiency requires a determination of whether the State has met its burden of production at trial,

a manifest weight challenge questions whether the State has met its burden of persuasion. Id. at

390 (Cook, J., concurring).

       {¶29} When applying the manifest weight standard, appellate courts are required to

consider the whole record, “weigh the evidence and all reasonable inferences, consider the

credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of

fact clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th

Dist.1986). “When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and

disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins at 387,

quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). This discretionary power should be exercised

only in exceptional cases where the evidence presented weighs heavily in favor of the defendant

and against the conviction. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983); see also Otten at 340.

       {¶30} Mr. Schell argues his conviction is against the manifest weight of the evidence

because D.B. “has not demonstrated any violation. He has imputed, without corroboration, that

Mr. Schell ‘swerved’ toward him and that he said something to him. * * *, there is no evidence

in support of a violation.” This is the totality of Mr. Schell’s manifest weight argument. As

framed in this assignment of error, Mr. Schell is making two arguments: 1) there is no evidence
                                                 10


Mr. Schell violated the protection order, and 2) D.B.’s testimony regarding violations of the

protection order is uncorroborated.

          {¶31} An argument regarding lack of evidence sounds in sufficiency rather than weight.

See State v. Salmons, 9th Dist. Summit No. 27108, 2014-Ohio-3804, ¶ 23. This Court has

already determined that Mr. Schell’s conviction for violation of a protection order is based upon

sufficient evidence. Accordingly, Mr. Schell’s argument that there is no evidence that he violated

the protection order is not a manifest weight challenge and this Court declines to conduct such an

analysis. See State v. Shannon, 9th Dist. Lorain No. 13CA010517, 2015-Ohio-438, ¶ 25, quoting

State v. Auerswald, 9th Dist. Medina No. 11CA0053-M, 2013-Ohio-742, ¶ 50.

          {¶32} Arguments regarding uncorroborated testimony are challenges to a witness’s

credibility and are properly reviewed under a manifest weight analysis. See State v. Henderson,

9th Dist. Summit No. 27078, 2014 Ohio-5782, ¶ 9. Mr. Schell claims there is no evidence to

corroborate D.B.’s claim that Mr. Schell swerved his truck at D.B. or that he said anything to

D.B.      However, the lack of corroborating evidence, by itself, does not undermine D.B.’s

credibility. See State v. Moore-Bennett, 8th Dist. Cuyahoga No. 95450, 2011-Ohio-1937, ¶ 15.

Moreover, there is no statutory requirement for corroboration in a violation of a protection order

charge.

          {¶33} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of

the syllabus. “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the

record, we cannot say that the jury lost its way when it chose to believe the portions of D.B.’s
                                                 11


testimony that were uncorroborated. Mr. Schell has not shown that this is the exceptional case

where the trier of fact lost its way in convicting him.

       {¶34} Further, in his manifest weight challenge, Mr. Schell does not develop an

argument that D.B.’s testimony is inconsistent or conflicts with other witness testimony or

evidence. This Court will not develop such arguments on his behalf. See State v. Sadeghi, 9th

Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 32.

       {¶35} Therefore, this Court concludes that Mr. Schell’s conviction for violation of a

protection order was not against the manifest weight of the evidence. Mr. Schell’s second

assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 3

       THE JURY INSTRUCTIONS IN THIS MATTER ARE INSUFFICIENT AND
       CAUSED PLAIN ERROR TO THE APPELLANT’S PREJUDICE.

       {¶36} In his third assignment of error, Mr. Schell argues the trial court committed plain

error when it failed to instruct the jury as to “which specific acts by Mr. Schell constituted

violations of specific prohibitions of the ex parte protection order.” (Emphasis sic.) This Court

disagrees.

       {¶37} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” The doctrine of

plain error requires that there must be: (1) a deviation from a legal rule; (2) that is an obvious

defect in the trial; and (3) that affects the appellant’s substantial rights. State v. Barnes, 94 Ohio

St.3d 21, 27 (2002). An error affects the appellant’s substantial rights if it affected the outcome

of the trial. Id. “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
                                                12


       {¶38} When reviewing jury instructions, the appellate court reviews the instructions as a

whole. Wozniak v. Wozniak, 90 Ohio App.3d 400, 410 (9th Dist.1993). “[A] trial court must

fully and completely give the jury all instructions which are relevant and necessary for the jury to

weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206

(1990), paragraph two of the syllabus. Although trial courts enjoy broad discretion in fashioning

jury instructions, they must “present a correct, pertinent statement of the law that is appropriate

to the facts.” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46, citing State v. Griffin,

141 Ohio St.3d 392, 2014-Ohio-4767, ¶ 5, and State v. Lessin, 67 Ohio St.3d 487, 493 (1993).

       {¶39} The trial transcript does not contain any discussion about the jury instructions or

the actual reading of the jury instructions. Therefore, the State suggests this Court is unable to

review the merits of Mr. Schell’s assignments of error regarding the jury instructions and should

presume regularity in the trial court’s proceedings. While this is an accurate proposition of law,

the record does include a copy of the jury instructions and thus this Court is able to review these

assignments of error under a plain error analysis.

       {¶40} “[T]he instructions found in the Ohio Jury Instructions are not mandatory, [but]

they ‘are recommended instructions based primarily upon case law and statutes[.]’” State v.

Armstrong, 9th Dist. Summit No. 24479, 2009-Ohio-5941, ¶ 13, quoting Buehler v. Falor, 9th

Dist. Summit No. 20673, 2002 WL 121204, *1 (Jan. 30, 2002), quoting State v. Martens, 90

Ohio App.3d 338, 343 (3d Dist. 1993). When a jury instruction tracks with the language of the

Ohio Jury Instructions, there is no plain error. State v. Harwell, 2d Dist. Montgomery No. 25852,

2015-Ohio-2966, ¶ 64.

       {¶41} Ohio Jury Instruction CR 519.27 applies to R.C. 2919.27, violation of a protection

order. Based on the evidence presented at trial, the trial court gave the jury instruction provided
                                                 13


in Ohio Jury Instruction CR 519.27, including definitions of “[s]erved” and “recklessly.” A

review of the filed jury instructions reflects that the language used by the trial court substantially

mirrors Ohio Jury Instruction CR 519.27 and is a correct statement of law.

       {¶42} Mr. Schell does not object to any of the language given to the jury. Instead, he

asserts there should have been additional instructions given regarding what type of conduct

violates a protection order. He asserts the protection order contained multiple restrictions which

the jury could have found him to have violated. Mr. Schell argues the additional instruction

would have provided the jury with clarification and allowed unanimity in the verdict.

       {¶43} Mr. Schell relies on State v. Ward, 9th Dist. Lorain No. 09CA009720, 2011-Ohio-

518, ¶ 5, for the proposition that when there are multiple ways in which to commit an offense, a

jury verdict lacks unanimity and plain error exists. In Ward, the defendant challenged the

indictment on the aggravated robbery count as being duplicitous. Id. at ¶ 4. While Ward was

convicted on one count of aggravated robbery, the evidence at trial reflected two distinct

offenses (taking a purse and taking money from the cash register) presented in the single charge.

Id. at ¶ 2, 12. Based on that scenario, the jury could find the defendant guilty of aggravated

robbery, but may not be unanimous as to which set of facts resulted in the offense. Id. at ¶ 12.

The court found plain error. Id. at ¶ 14.

       {¶44} This case is distinguishable from Ward for two reasons. First, Mr. Schell is

challenging the jury instructions and not the indictment. Second, this case does not involve

multiple distinct crimes, but instead multiple ways in which an element of a crime may be

satisfied. Ward at ¶ 6, citing State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 68.

       {¶45} In Gardner, the Ohio Supreme Court addressed the issue of unanimity in relation

to jury instructions. The Court “recognize[d] that the law on juror unanimity distinguishes
                                                14


between the elements of a crime and the means by which a defendant commits an element.”

Gardner at ¶ 37. While “Crim.R. 31(A) requires juror unanimity on each element of the crime,

jurors need not agree to a single way by which an element is satisfied.” Id. at ¶ 38, citing

Richardson v. United States, 526 U.S. 813, 817 (1999). Richardson explained:

       Where, for example, an element of robbery is force or the threat of force, some
       jurors might conclude that the defendant used a knife to create the threat; others
       might conclude he used a gun. But that disagreement—a disagreement about
       means—would not matter as long as all 12 jurors unanimously concluded that the
       Government had proved the necessary related element, namely, that the defendant
       had threatened force.

Richardson at 817.

       {¶46} In this case, the elements for violation of a protection order are 1) service of the

protection order upon the defendant, and 2) recklessly violating the terms of a protection order

issued pursuant to R.C. 2903.214. The jury unanimously found the element of recklessly

violating the terms of a protection order. The means by which Mr. Schell recklessly violated the

terms of the protection order (i.e., taking pictures of D.B. while standing on his property, yelling

and swerving at D.B. while driving on a public road, or circling back to pass D.B. a second time)

do not require jury unanimity.

       {¶47} The record and the law contradict Mr. Schell’s asserted error. Based upon the

evidence presented at trial, the court instructed the jury as to the relevant and necessary elements

of the crime of violation of a protection order: “that the defendant was previously served with a

copy of a protection order regarding [D.B.], and that on or about August 27, 2014, and in

Summit County, Ohio, [Mr. Schell] recklessly violated the terms of that protection order.” These

jury instructions followed Ohio Jury Instruction CR 519.27.         No additional instruction was

necessary regarding the means by which a defendant violates a protection order in order to have
                                                   15


an unanimous verdict. Based on the foregoing reasons, Mr. Schell has failed to establish plain

error. Mr. Schell’s third assignment of error is overruled.

                                ASSIGNMENT OF ERROR NO. 4

        THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT REQUIRING
        THE JURY TO DETERMINE THAT THE EX PARTE PROTECTION ORDER
        WAS A VALID PROTECTION ORDER.

        {¶48} In his fourth assignment of error, Mr. Schell argues the trial court committed plain

error when it failed to instruct the jury to determine whether the ex parte temporary protection

order existed and was valid. This Court disagrees.

        {¶49} Mr. Schell states that “[t]hroughout the trial, Mr. Schell called into question the

validity of the ex parte protection order regarding [D.B.]” (Emphasis sic.) Mr. Schell presented

evidence that the full hearing had not yet occurred due to various motions to continue filed by

Mr. Schell and the victims. Based on this testimony, Mr. Schell asserts an additional jury

instruction was necessary as to whether the ex parte protection order existed and was valid.

        {¶50} Following the issuance of a protection order from an ex parte hearing, the trial

court shall schedule a full hearing within ten days of the ex parte hearing. R.C.

2903.214(D)(2)(a). However, the trial court may grant a continuance of the full hearing to a

reasonable time when the parties consent to the continuance or the continuance is needed for

other good cause. R.C. 2903.214(D)(2)(a)(ii) and (iv). In this case, both Mr. Schell’s attorney

and the attorney for D.B. and J.B. testified that the full hearing was continued based upon three

motions by Mr. Schell for the purpose of discovery and upon agreement of counsel and the trial

court to stay the full hearing until the disposition of this case.

        {¶51} Additionally, courts have held that a violation of a protection order can arise from

an ex parte protection order where the full hearing has not yet been held. See State v. Hall, 5th
                                                 16


Dist. Delaware Nos. 12CAA030017, 12CAA030018, 12CAA030019, 2013-Ohio-660, ¶ 24, 30;

see also State v. Sutts, 12th Dist. Warren No. CA2003-07-074, 2004-Ohio-3541, ¶ 2-3, 7. The

lack of a full hearing does not render an ex parte protection order invalid. See Sutts at ¶ 7, 10.

This is because “[a]n order of the court must be obeyed unless and until a court finds it is invalid

or rescinds it.” Id. at ¶ 9, citing Reynoldsburg v. Eichenberger, 5th Dist. Licking No. CA-3492,

1990 WL 52467, *4 (Apr. 18, 1990), citing In re White, 60 Ohio App.2d 62, 65 (5th Dist.1978),

citing United States v. United Mine Workers of America, 330 U.S. 258, 293 (1947).

         {¶52} There was testimony from D.B., Captain Ray, and attorney Ronald Schafer1 that

an ex parte protection order was issued on April 10, 2014 for the benefit of D.B. and J.B.

Additionally, a time-stamped copy of the Order of Protection was admitted into evidence. The

Order states the terms therein are in effect until April 9, 2017.

         {¶53} The trial court’s jury instructions, modeled after Ohio Jury Instruction CR 519.27,

stated “[b]efore you can find the defendant guilty, you must find beyond a reasonable doubt, that

the defendant was previously served with a copy of a protection order regarding [D.B.], and that

on or about August 27, 2014, and in Summit County, Ohio, recklessly violated the terms of that

protection order.” It is implicit in the language of the instruction that the jury find the existence

of a valid protection order in order to find a defendant guilty of violating a protection order.

Thus, no further instruction was necessary.

         {¶54} Based on the testimony at trial and the applicable law, the trial court “present[ed]

a correct, pertinent statement of the law that is appropriate to the facts.” See White, 142 Ohio

St.3d 277, 2015-Ohio-492, at ¶ 46, citing Griffin, 2014-Ohio-4767, at ¶ 5, and Lessin, 67 Ohio




1
    Attorney Ronald Schafer is not related to panel member, Judge Schafer.
                                                17


St.3d at 493. Based on the lack of error, the starting point for a plain-error inquiry, Mr. Schell’s

fourth assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 5

       THE APPELLANT’S CONVICTION FOR VIOLATING A PROTECTION
       ORDER IS ERROR AS IT IS BASED UPON AN EX PARTE TEMPORARY
       ORDER WHERE NO BASIS EXISTED FOR THE ISSUANCE OF A
       PROTECTION ORDER FOLLOWING THE FULL HEARING.

       {¶55} In his fifth assignment of error, Mr. Schell asserts his conviction for violating a

protection order is error. During oral argument, Mr. Schell withdrew this assignment of error.

Consequently, this Court will not review it.

                                                     III.

       {¶56} Mr. Schell’s first, second, third, and fourth assignments of error are overruled and

Mr. Schell’s fifth assignment of error is not considered as it was withdrawn. The judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                18


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
