[Cite as State v. Meinke, 2017-Ohio-7787.]


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

STATE OF OHIO                                       C.A. Nos.     15CA010738
                                                                  15CA010739
        Appellee

        v.
                                                    APPEAL FROM JUDGMENT
NOLAN P. MEINKE                                     ENTERED IN THE
                                                    ELYRIA MUNICIPAL COURT
        Appellant                                   COUNTY OF LORAIN, OHIO
                                                    CASE Nos. 2014 CRB 1323
                                                               2014 CRB 1378

                                 DECISION AND JOURNAL ENTRY

Dated: September 25, 2017



        HENSAL, Judge.

        {¶1}     Nolan Meinke appeals his convictions for violating a protection order and

domestic violence from the Elyria Municipal Court. This Court reverses.

                                               I.

        {¶2}     Mr. Meinke and D.G. had a romantic relationship beginning in 2008. They lived

together and have a daughter. According to D.G., around the time of her pregnancy, Mr. Meinke

developed a substance abuse problem and began acting violently. Although she ended their

relationship, Mr. Meinke would not accept that it was over. He began following her, calling her,

and texting her incessantly. D.G. testified that Mr. Meinke took things from her house when she

was at work and sent her a text image from inside her house of a shotgun along with a message

that he was going to kill himself. He also banged on her windows in the middle of the night.

Fearing for her safety, D.G. began staying at her parents’ house. She also obtained an ex parte
                                                2


civil protection order against Mr. Meinke pursuant to Revised Code section 3113.31. Among

other prohibitions, the protection order prohibited Mr. Meinke from initiating contact with D.G.

including “landline, cordless, cellular or digital telephone; text; instant messaging; fax; e-mail;

voice mail; delivery service; social networking media; blogging; writings; electronic

communications, or communications by any other means directly or through another person.”

       {¶3}    According to D.G., Mr. Meinke was served with the protection order 15 days after

she obtained it, while she was on vacation in Florida. D.G. testified that she nevertheless

received numerous texts from Mr. Meinke both in Florida and after she returned to Ohio. D.G.

took screen shots of some of the messages to the Elyria Police Department. Officers Jacob

Webber and Christine Fortune were on duty and met with D.G. As a result of that meeting, Mr.

Meinke was charged with domestic violence and violating a protection order in case number

2014CRB01323.

       {¶4}    Still Mr. Meinke persisted in sending texts to D.G. In response to one incident,

Elyria Police Officer Eric Halvorsen met with D.G. She showed Officer Halverson screen shots

of Mr. Meinke’s texts and informed the officer that she had a protection order against Mr.

Meinke. Officer Halvorsen testified that he verified with dispatch that Mr. Meinke had been

served with the order and subsequently charged Mr. Meinke with violating a protection order in

case number 2014CRB01378.

       {¶5}    Mr. Meinke pleaded not guilty in both cases, and they proceeded to a jury trial.

Following the close of the State’s evidence, Mr. Meinke moved for acquittal on the two counts of

violating a protection order. He argued that the State failed to prove that he was served with the

protection order. The municipal court denied Mr. Meinke’s motion.
                                                3


       {¶6}    Mr. Meinke requested “an instruction pursuant to State v[.] Smith[,] 136 Ohio

St[.]3d 1[, 2013-Ohio-1698,] that an additional element to a violation of a protection order type

of offense is that there be proof beyond a reasonable doubt of service of the order.” The

municipal court denied the request because Mr. Meinke had not submitted a proposed instruction

in writing pursuant to Crim.R. 30(A). After deliberating, the jury found Mr. Meinke guilty of

both counts of violating a protection order and guilty of domestic violence.

       {¶7}    In case number 2014CRB01323, the municipal court sentenced Mr. Meinke to

180 days in jail for violating a protection order and 30 days in jail for domestic violence.   In

case number 2014CRB01378, the court sentenced Mr. Meinke to 180 days in jail for violating a

protection order. The municipal court ordered the sentences to be served consecutively with

credit for time served. Mr. Meinke has appealed, raising three assignments of error. For ease of

discussion, we have rearranged the assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR II

       THERE WAS INSUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT
       OF VIOLATION OF A PROTECTION ORDER R.C. 2919.27 SINCE THE
       STATE FAILED TO PRESENT EVIDENCE THAT THE DEFENDANT WAS
       SERVED WITH THE PROTECTION ORDER.

       {¶8}    In his second assignment of error, Mr. Meinke argues that there was insufficient

evidence that he was served with the protection order before he allegedly violated it. Whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       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,
                                                 4


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

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶9}    The jury convicted Mr. Meinke of violating a protection order under Section

2919.27. That statute provides in relevant part that, “[n]o person shall recklessly violate the

terms of * * * [a] protection order issued * * * pursuant to section * * * 3113.31 of the Revised

Code[.]” R.C. 2919.27(A)(1). In State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, the Ohio

Supreme Court held that “the [S]tate must establish beyond a reasonable doubt that it served the

defendant with the [protection] order before the alleged violation.” Id. at ¶ 20.1 See also State v.

Terrell, 2d Dist. Clark No. 2013-CA-102, 2014-Ohio-4344, ¶ 12 (applying Smith where

protection order was issued pursuant to Section 3113.31).

       {¶10} Mr. Meinke bases his sufficiency argument on his contention that the witnesses’

testimony about service was inadmissible hearsay. Because the State cannot retry a defendant

following a reversal on the sufficiency of the evidence, “the interest in the administration of

justice dictates that the appellate court review the issue of sufficiency in consideration of all

evidence presented by the [S]tate in its case in chief, whether such evidence was properly

admitted or not.” (Emphasis added.) State v. Vanni, 9th Dist. Medina No. 08CA0023-M, 2009-

Ohio-2295, ¶ 15, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. Thus, we

consider all the testimony regardless of any alleged error in its admission.




       1
         Senate Bill 7, which takes effect on September 27, 2017, adds a new subsection to
Section 2919.27 that provides it is not necessary for the State to prove that a protection order was
served on the defendant if it proves that the defendant was shown the protection order or that a
judge, magistrate, or law enforcement officer informed the defendant that a protection order was
issued.
                                                    5


       {¶11} Three of the State’s witnesses testified that Mr. Meinke was served before the

violations, which allegedly occurred between May 4 and May 9, 2014. D.G. testified that,

although she had been receiving texts for some time, Mr. Meinke “wasn’t served with [the

protection order] until April 18th [2014].” Officer Webber testified that, when D.G. was at the

police station on May 5, 2014, “[his] partner, [Officer] Fortune, at the time ended up contacting

dispatch and confirming that the [protection order] was served[.]” When asked whether Officer

Fortune had relayed to him that the protection order had been served, Officer Webber responded

affirmatively.   Finally, Officer Halvorsen testified that he called dispatch regarding the

protection order and determined “04-18-14 is when it was served.” He further explained that

dispatch “verified there was a paper copy on station in a three-ring binder they keep them in with

the defendant’s signature on it that he accepted it.” Viewing this testimony in a light most

favorable to the prosecution, a rational juror could find that Mr. Meinke was served with the

protection order prior to his charged violations.

       {¶12}     Mr. Meinke also argues that the State must prove that service was made in

accordance with the Civil Rules and “[a] certified copy of the return would be irrefutable

evidence of proper service and of this element.” The State responds that this argument goes

beyond the holding in Smith which requires evidence that the defendant was served, not how he

was served. We need not decide this issue because the evidence in this case was sufficient to

establish that Mr. Meinke was served in compliance with the Civil Rules.

       {¶13} The State is not required to present “irrefutable evidence” to overcome a

sufficiency challenge. Rather, “the relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.”          Jenks, 61 Ohio St.3d 259, at
                                                6


paragraph two of the syllabus. Moreover, while documentary evidence may be one way to prove

service, testimony may also be used. See State v. Johnson, 6th Dist. Wood Nos. WD-13-008,

WD-13-009, 2014-Ohio-2435, ¶ 14 (evidence was insufficient as there was neither documentary

evidence nor testimony).

       {¶14} Service of a civil protection order is governed by Civil Rule 65.1(C). In relevant

part, the rule provides: “Initial service, and service of any ex parte protection order that is

entered, shall be made in accordance with the provisions for personal service of process within

this state under Civ.R. 4.1(B) * * *.” Civ.R. 65.1(C)(2). Officer Halvorsen testified that “the

defendant’s signature” was on the protection order, indicating that “he accepted it.” From this

testimony, a rational juror could find that Mr. Meinke was served personally. Thus, the State

presented sufficient evidence that Mr. Meinke was served in compliance with Civ.R. 65.1(C).

Mr. Meinke’s second assignment of error is overruled.

                                     ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY
       ON ALL THE ELEMENTS OF VIOLATING A PROTECTION ORDER R.C.
       2919.27.

       {¶15} In his first assignment of error, Mr. Meinke argues that his convictions should be

reversed because the municipal court failed to instruct the jury that service of the protection

order was an element of the offense of violating a protection order. “As a general rule, a

defendant is entitled to have the jury instructed on all elements that must be proved to establish

the crime with which he is charged.” State v. Adams, 62 Ohio St.2d 151, 153 (1980). Following

Smith, service of a protection order, “antecedent to the alleged violation, is an essential element

that the [S]tate must prove” to establish a violation of R.C. 2919.27. Johnson at ¶ 13, citing

Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, at syllabus.
                                                  7


       {¶16} In the present matter, the municipal court did not provide an instruction regarding

service of the protection order. The State argues that any error was harmless, however, because

the evidence regarding service was substantial and undisputed. See Crim.R. 52(A) (“Any error,

defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”).

       {¶17} Mr. Meinke argues that this situation is not subject to a harmless error analysis

because the omitted instruction was for an element of the offense. In support of his argument, he

directs our attention to Hoover v. Garfield Hts. Mun. Court, 802 F.2d 168 (6th Cir.1986). In

Hoover, a federal circuit court reviewing a habeas corpus action found that the failure to instruct

on an essential element of the crime was a constitutional error to which a harmless-error analysis

did not apply. Id. at 178.

       {¶18} Since Hoover was decided, however, the United States Supreme Court has found

errors “to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of

cases.’” Neder v. United States, 527 U.S. 1, 8 (1999), quoting Johnson v. United States, 520

U.S. 461, 468 (1997). In Neder, the Court noted that “a jury instruction that omits an element of

the offense * * * differs markedly from the constitutional violations [the United States Supreme

Court has] found to defy harmless-error review.” Neder at 8. The Court continued: “[A]n

instruction that omits an element of the offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” (Emphasis

sic.) Id. at 9. It concluded “that the omission of an element [from the jury instructions] is subject

to harmless-error analysis[.]” Id. at 10.

       {¶19} Similarly, the Ohio Supreme Court has held that the failure to instruct the jury on

all of the elements of an offense is not a structural error. State v. Wamsley, 117 Ohio St.3d 388,

2008-Ohio-1195, ¶ 1. In Wamsley, the Court noted that there are two types of constitutional
                                                   8


errors that can occur in a criminal proceeding – trial errors and structural errors. Id. at ¶ 15,

citing Arizona v. Fulminante, 449 U.S. 279, 306-312 (1991). While structural errors are per se

cause for reversal, trial errors are reviewable for harmless error. Id. It held that the trial court’s

failure to instruct the jury regarding the culpable mental state as well as “the elements required to

establish the underlying offense of assault” did not rise to the level of structural error. Id. at ¶ 17,

24.

        {¶20} The general test for determining whether a constitutional error is harmless is

“whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained.’” Neder at 15, quoting Chapman v. California, 386 U.S. 18, 24 (1967). In

the specific situation where the trial court has failed to instruct the jury as to all the elements of

an offense, the error is harmless if the “omitted element is supported by uncontroverted

evidence[.]” Id. at 18. In adopting that standard for jury instructions that omit elements of an

offense, the Supreme Court reasoned that “this approach reaches an appropriate balance between

‘society’s interest in punishing the guilty [and] the method by which decisions of guilt are to be

made.’” (Alteration sic.) Id., quoting Connecticut v. Johnson, 460 U.S. 73, 86 (1983).

        {¶21} The evidence regarding whether Mr. Meinke was properly served with the

protection order was not uncontroverted. Mr. Meinke challenged the witnesses’ testimony on

that issue both on cross-examination and during his closing argument.               Because the jury

instructions omitted the element of service, the jury never had to assess the credibility of the

challenged testimony.

        {¶22} In addition, the evidence establishing that Mr. Meinke was properly served before

he allegedly committed the charged offenses was not overwhelming. The State only submitted

the hearsay testimony of D.G. and the officers who received her complaints. The State also did
                                                 9


not submit the copy of the protection order that Officer Halvorsen referenced that allegedly

contained Mr. Meinke’s signature.

       {¶23} Accordingly, upon review of the record, we cannot conclude that it is beyond a

reasonable doubt that the jury would have found the service element was met if the court had

given the appropriate instruction. Mr. Meinke’s first assignment of error is sustained.

                                    Assignment of Error Number Three

       THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
       SENTENCES FOR DOMESTIC VIOLENCE R.C. 2919.25(C) AND FOR
       VIOLATION OF A PROTECTIVE ORDER SINCE THEY ARE ALLIED
       OFFENSES OF SIMILAR IMPORT.

       {¶24} In his third assignment of error, Mr. Meinke argues that the offenses of domestic

violence and violating a protection order in case number 2014CRB01323 were allied offenses of

similar import. In light of our determination of Mr. Meinke’s first assignment of error, we

conclude that this issue is moot, and it is overruled on that basis. App.R. 12(A)(1)(c).

                                                     III.

       {¶25} Mr. Meinke’s second and third assignments of error are overruled. His first

assignment of error is sustained. The judgment of the Elyria Municipal Court is reversed, and

this matter is remanded for further proceedings consistent with this decision.

                                                                                  Judgment reversed,
                                                                                 and cause remanded.




       There were reasonable grounds for this appeal.

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

Court, County of Lorain, 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.
                                                10


       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

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 Appellee.




                                                      JENNIFER HENSAL
                                                      FOR THE COURT




CANNON, J.
CONCURS.

CARR, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶26} I agree with the majority opinion that Mr. Meinke’s convictions for violating a

protection order were supported by sufficient evidence. However, I would find that the failure to

instruct the jury on service of the protection order was harmless error.

       {¶27} The majority finds that the evidence regarding service was not uncontroverted

because Mr. Meinke challenged it on cross-examination and during his closing argument. “It is

axiomatic that ‘statements made by counsel in opening statements and closing arguments are not

evidence.’” State v. Carr, 9th Dist. Summit No. 26661, 2014-Ohio-806, ¶ 16, quoting State v.

Frazier, 73 Ohio St.3d 323, 338 (1995).

       {¶28} While D.G. and Officer Webber were briefly cross-examined regarding service,

their testimony on cross-examination did not negate or contradict their testimony on direct
                                                 11


examination. The third witness who testified regarding service, Officer Halvorsen, was not

cross-examined on that issue. This case is unlike Smith, wherein the unrefuted evidence was that

the defendant was not served the protection order until after his alleged violation. State v. Smith,

136 Ohio St.3d 1, 2013-Ohio-1698, ¶ 8. In the present case, the jury was presented with three

witnesses who testified consistently that they took efforts to confirm, and in fact did confirm,

that Mr. Meinke had been served prior to the dates when he violated the protection order.

       {¶29} The majority also discounts the witnesses’ testimony regarding service as hearsay

and notes that the State did not avail itself of other methods to prove service. While Mr. Meinke

argued on appeal, in his sufficiency challenge, that the testimony was hearsay, he did not object

to this particular testimony below.2 Therefore, the witnesses’ testimony regarding service of the

protection order was before the jury as it deliberated.

       {¶30} The fact that the State had other methods to prove service is immaterial. The

issue is not did the State present the best evidence of service, but whether the failure to instruct

on the service element contributed to the verdict. See Neder v. United States, 527 U.S. 1, 15

(1999). Based on the substantial and uncontradicted evidence presented in this case, I would

find it “clear beyond a reasonable doubt that a rational jury would have found [Mr. Meinke]

guilty absent the [failure to instruct on service.]” See id. at 18. Consequently, I would find this

error was harmless and overrule the first assignment of error.




       2
          There was one objection, but it came after Officer Webber described “standard
operating procedure.” The State asked Officer Webber, “what system do you use to determine
whether the defendant had received a copy?” The objection was that “[h]e testified that his
partner did it.” The trial court overruled the objection, and Mr. Meinke has not challenged that
ruling on appeal.
                                                12


        {¶31} Finally, I would find that Mr. Meinke forfeited his allied offenses argument

because he did not raise it in the trial court nor has he argued plain error on appeal. See State v.

Mayfield, 9th Dist. Summit No. 27655, 2015-Ohio-5375, ¶ 6-7.

        {¶32} Accordingly, I would overrule all three of Mr. Meinke’s assignments of error and

affirm the trial court.


(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

ZACHARY B. SIMONOFF, Attorney at Law, for Appellant.

SCOTT SERAZIN, Law Director, and MATTHEW MISHAK, Assistant Prosecuting Attorney,
for Appellee.
