[Cite as State v. Hall, 2013-Ohio-5855.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Patricia A. Delaney
                                               :
-vs-                                           :
                                               :       Case No.      12 CAA 03 0017
HARRY P. HALL JR.                              :                     12 CAA 03 0018
                                               :                     12 CAA 03 0019
                     Defendant-Appellant       :
                                               :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Delaware County
                                                   Court of Common Pleas, Case
                                                   Nos.11CRI080452,11CRI090470, &
                                                   11CRI010031

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            December 30, 2013

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CAROL HAMILTON O’BRIEN                             PETER GALYARDT
BRIAN WALTER                                       250 East Broad Street, Suite 1400
Delaware County Prosecutor’s Office                Columbus, OH 43215
140 North Sandusky Street
Delaware, OH 43015
[Cite as State v. Hall, 2013-Ohio-5855.]


Gwin, P.J.

        {¶1}     Upon remand from the Supreme Court of Ohio, this court is asked to

consider whether this Court's ruling in State v. Hall, 5th Dist. Delaware Nos.

12CAA030017, 12CAA030018, 12CAA030019, 2013-Ohio-660 [“Hall I”],                   should be

modified in light of State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972.

        {¶2}     We have permitted the parties to brief and to orally argue this issue.

                                           Assignments of Error

        {¶3}     Hall raises two assignments of error,

        {¶4}     “I. THE TRIAL COURT ERRED AND VIOLATED HARRY PAYNE HALL,

JR.'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF

SUFFICIENT EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, IT CONVICTED HIM UNDER R.C. 2919.27(A)(2) FOR VIOLATIONS OF A

PROTECTION ORDER THAT WAS NOT IN EFFECT. FIFTH AND FOURTEENTH

AMENDMENTS, UNITED STATES CONSTITUTION; SECTIONS 10 AND 16, ARTICLE

I, OHIO CONSTITUTION. R.C. 2903.214.

        {¶5}     “II. THE TRIAL COURT ERRED BY IMPOSING COURT COSTS

WITHOUT NOTIFYING HARRY PAYNE HALL, JR. THAT FAILURE TO PAY THOSE

COSTS MAY RESULT IN THE COURT'S ORDERING HIM TO PERFORM

COMMUNITY SERVICE. STATE V. SMITH, 131 OHIO ST.3D 297, 2012-OHIO-781,

964 N.E.2D 423, SYLLABUS. R.C. 2947.23(A)(1).”
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019                3


                                                          I.

      {¶6}      In Hall I, we held that the evidence was sufficient to support the verdict

that defendant's continued contact with victim was reckless as to violating a civil

protection order1. R.C.2919.27(A)(2).

      {¶7}      In Smith, the Supreme Court of Ohio determined that in order to sustain a

conviction for the crime of violating a civil stalking or sexually-oriented-offense

protection order under R.C. 2919.27(A)(2), the state must prove beyond a reasonable

doubt all requirements of R.C. 2903.214(F)(1). See State v. Smith, 136 Ohio St.3d 1,

2013-Ohio-1698, 989 N.E.2d 972, ¶16.

      {¶8}      In Smith, the petitioner obtained an ex parte civil stalking protection order

against Robert L. Smith, Jr. Id. at ¶4. On the day the order was issued, the clerk of

courts ordered the sheriff serve a copy of the order upon Smith. Id. Before Smith was

served, the petitioner “showed Smith a copy and told him he was not allowed to be

around her.” Id. at ¶5. The next morning, Smith broke into petitioner's home. Id. at ¶6.

An altercation ensued. Id. Petitioner called 9–1–1. Id. at ¶7. Smith attempted to flee but

was apprehended and arrested. Id. Shortly thereafter, a deputy sheriff served Smith

with a copy of the protection order. Id. at ¶8. Smith was charged with and convicted of

violating the protection order in violation of R.C. 2919.27(A)(2). Id. at ¶ 9. Smith

appealed, arguing there was no evidence that the order was served before the alleged

offense. Id. at ¶ 14. Reversing the judgment of conviction, the Ohio Supreme Court

emphasized,




      1
          For the underlying facts and procedural history of this case, see Hall I.
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019                4


              Therefore, to prove a violation of R.C. 2919.27(A)(2), the state must

       prove, beyond a reasonable doubt, all requirements of R.C. 2903.214,

       including the requirement that the order be delivered to the defendant.

Smith at ¶16. The Court further found “delivery” to be synonymous with “service.” In

Smith, the defendant was not served with the ex parte protection order before the

altercation that led to the charges. Thus, Hall’s case is distinguishable from Smith. In

the case at bar, Hall was served with the ex parte order before the conduct that gave

rise to the charges set forth in the Indictment had occurred.

       {¶9}   Hall's convictions in Case Number 11–CR–I–08–452, Counts four and

five, for violations of R.C. 2919.27(A)(2), were for conduct occurring on July 29, 2011

and August 2, 2011, successively. Accordingly, the counts pertained to violations of the

ex parte civil protection order prior to the scheduled full civil protection order hearing on

August 8, 2011. These violations occurred while the ex parte civil protection order was

clearly in effect with Hall's knowledge. Therefore, Hall's convictions on those counts are

not against the manifest weight nor based on insufficient evidence. Hall, I, ¶24.

       {¶10} Counts one, two, three and four of Case Number 11–CR–I–09–0470 and

counts one, three and five of Case Number 12–CR–I–01–0031 charge violations of a

civil protection order pursuant to R.C. 2919.27(A)(2), but do not indicate whether the

conduct relates to a violation of the ex parte civil protection order or the full civil

protection order. The dates indicated in the charges relate to conduct occurring after the

scheduled hearing on the full civil protection order hearing, which occurred on August 8,

2011. Hall, I, ¶25.
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019               5


       {¶11} Hall was indicted in Case Number 11–CR–I–08–0452 on August 19, 2011.

He was served with the indictment on September 1, 2011, and was arraigned on

September 2, 2011. Hall was served with the indictment in Case Number 11–CR–I–09–

0470 on September 2, 2011, and was arraigned on September 2, 2011. During this time

Hall continued to contact the victim in spite of the notice contained in the indictment his

conduct was in violation of a civil protection order. Hall, I, ¶26.

       {¶12} Hall's continued contact with the victim subsequent to his indictments in

the previously mentioned cases resulted in his indictment on January 27, 2012 in Case

Number 12–CR–I–01–0031. The contact in this case was alleged to have occurred

between September 14, 2011 and November 24, 2011. These dates are subsequent to

his indictments and arraignments in the previous two cases. Hall, I, ¶27.

       {¶13} At the time of his indictments in Case Number 11–CR–I–08–0452 and

Case Number 11–CR–I–09–0470, Hall was put on notice a civil protection order existed

prohibiting contact with the victim. Hall was represented by counsel, engaged in pretrial

discovery and pretrial conferences, yet continued to contact the victim. Hall, I, ¶28.

       {¶14} As Hall had counsel and two previous indictments for the same behavior,

his continued contact with the victim was reckless as to violating a civil protection order.

Accordingly, Hall's convictions for counts one, three and five in Case Number 12–CR–I–

01–0031 are affirmed. Hall, I, ¶29.

       {¶15} Upon review of Smith, we find as we did in Hall I,

              The parties agree that Hall was served and did personally receive a

       copy of the ex parte civil protection order. The parties further agree that

       the ex parte order stated that it was in effect until July 26, 2013. At that
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019             6


      time, Hall was or should have been aware that his conduct was prohibited

      by a civil protection order. Whether that order was for the ex parte order or

      the subsequent order issued after full hearing is not germane to the issue

      in this case. He chose to disregard the obvious facts and continued to

      contact the victim.

                                           ***

             In this case, Hall had no right to disregard the ex parte order unless

      and until the court that issued the order canceled or rescinded it. The trial

      court did neither; rather the court issued a final civil protection order. Hall

      argues he did not receive notice that a final civil protection order had been

      issued; however, this does not relieve him of his responsibility to abide by

      the terms of the ex parte order which he acknowledges stated that it was

      in effect until July 26, 2013.

             Hall was never aware that the ex parte order ceased. Further, at all

      times set forth in each indictment Hall was prohibited from contacting the

      victim by court order. When Hall contacted the victim, he had knowledge

      that the ex parte order was effective until July 26, 2013 and no notice that

      that order had been modified by the trial court. Hall's continued contact

      with the victim was reckless.

Hall I, ¶ 30; 32-33. Accordingly, Hall was properly convicted on all eight (8) counts of

Violation of a Protection order under R.C. 2919.27(A)(2). The Ohio Supreme Court’s

decision in Smith does not alter this result. The Court in Smith reached different results

based upon facts not present in Hall’s case.
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019             7


       {¶16} Hall’s first assignment of error is overruled in its entirety.

                                                     II.

       {¶17} In the second assignment of error, Hall argues the trial court erred in

imposing court costs without notifying Hall the failure to pay those costs may result in

the trial court's requiring him to perform community service.

       {¶18} The trial court held a hearing on this issue on April 16, 2013. By Judgment

Entry filed April 19, 2013, the trial court noted that Hall appeared before the court with

his attorney and was advised, “he could perform up to 40 hours per month community

service toward court costs until the judgment was paid or he was able to make monthly

payments.”

       {¶19} The second assignment of error is moot.

       {¶20} In compliance with the remand from the Ohio Supreme Court, this Court

reaffirms the decision in Hall, I in its entirety.
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019     8


      {¶21} The judgment of the Delaware County Court of Common Pleas is affirmed.

By Gwin, P.J., and

Delaney, J., concur;

Hoffman, J., dissents




                                        _________________________________
                                        HON. W. SCOTT GWIN


                                        _________________________________
                                        HON. WILLIAM B. HOFFMAN


                                        _________________________________
                                        HON. PATRICIA A. DELANEY



WSG:clw 1202
Delaware County, Case Nos. 12 CAA 03 0017, 12 CAA 03 0018, & 12 CAA 03 0019             9


Hoffman, J., concurring in part and dissenting in part

      {¶22} I concur in the majority’s conclusion State v. Smith, 136 Ohio St.3d 1,

2013-Ohio1698, does not alter [impact] the decision previously reached by this court

because “…Smith reached different results based upon facts not present in Hall’s case.”

(Majority Opinion at ¶15)

      {¶23} While I continue to concur with the majority Appellant’s two convictions

relating to conduct prior to the final hearing on August 8, 2011, should be affirmed, I

respectfully disagree as to the validity of Appellant’s convictions for conduct after that

date for the reasons set forth in my partial dissent in this Court’s prior opinion. See,

State v. Hall, 5th Dist. Nos. 12 CAA 03 0017, 12 CAA 03 0018, and 12 CAA 03 0019,

2013-OHIO-660.




                                                ________________________________
                                                         HON. WILLIAM B. HOFFMAN
[Cite as State v. Hall, 2013-Ohio-5855.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
HARRY P. HALL JR.                                 :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO.      12 CAA 03 0017
                                                                        12 CAA 03 0018
                                                                        12 CAA 03 0019



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Delaware County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY
