[Cite as State v. Weston, 2013-Ohio-791.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. John W. Wise, J.
-vs-

OREST WESTON                                     Case No. 2012 AP 08 0047

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Tuscarawas County Court
                                              of Common Pleas, Case No. 2011 CR 08
                                              0216



JUDGMENT:                                     Affirmed




DATE OF JUDGMENT ENTRY:                       March 1, 2013



APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


RYAN STYER                                    VERNON M. INFANTINO
Tuscarawas County Prosecutor                  Schnars, Baca & Infantino, LLC
PATRICK J. WILLIAMS                           610 Market Avenue North
Assistant County Prosecutor                   Canton, Ohio 44702
for Tuscarawas County
125 East High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2012 AP 08 0047                                               2

Hoffman, J.


       {¶1}   Defendant-appellant Orest Weston appeals his conviction entered by the

Tuscarawas County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   At all times pertinent herein, Erin Tingler resided with her mother at 467

Park Avenue, Northwest, New Philadelphia, Ohio.           Appellant and Tingler share a

daughter. A protection order was issued in favor of Tingler against Appellant in case

number 2010 VI 08 0425 on August 28, 2010, valid until August 28, 2015.                 The

protection order indicates Appellant shall not harm, attempt to harm, threaten, follow,

stalk, harass, force sexual relations upon or commit sexually oriented offenses against

the protected persons named in the order, including Tingler. The order also provides

Appellant shall not be present within 500 feet of any protected person.

       {¶3}   On August 13, 2011, Tingler was at the Park Avenue residence with a

friend and their children outside on the patio. While outside, Tingler heard someone

yelling obscenities. When she turned, Tingler realized it was Appellant. Appellant was

standing on a balcony of the VFW, approximately a football field away from where

Tingler was sitting. Tingler then called the police, indicating she had a protection order.

       {¶4}   On September 9, 2011, Appellant was charged with one count of violating

a protection order, in violation of R.C. 2919.27. A jury trial began on May 22, 2012.

       {¶5}   Appellant was found guilty of the charge, sentenced to two years of

community control and ordered to serve thirty days of incarceration.

       {¶6}   Appellant now appeals, assigning as error:
Tuscarawas County, Case No. 2012 AP 08 0047                                                  3


         {¶7}   “I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION

AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.”

         {¶8}   Appellant was convicted of disregarding a protection order, in violation of

R.C. 2919.27. The statute reads,

         {¶9}   "(A) No person shall recklessly violate the terms of any of the following:

         {¶10} "(1) A protection order issued or consent agreement approved pursuant to

section 2919.26 or 3113.31 of the Revised Code;

         {¶11} "(2) A protection order issued pursuant to section 2151.34, 2903.213, or

2903.214 of the Revised Code;

         {¶12} "(3) A protection order issued by a court of another state.

         {¶13} "(B)(1) Whoever violates this section is guilty of violating a protection

order.

         {¶14} "(2) Except as otherwise provided in division (B)(3) or (4) of this section,

violating a protection order is a misdemeanor of the first degree.

         {¶15} "(3) If the offender previously has been convicted of, pleaded guilty to, or

been adjudicated a delinquent child for a violation of a protection order issued pursuant

to section 2151.34, 2903.213, or 2903.214 of the Revised Code, two or more violations

of section 2903.21, 2903.211, 2903.22, or 2911.211 of the Revised Code that involved

the same person who is the subject of the protection order or consent agreement, or

one or more violations of this section, violating a protection order is a felony of the fifth

degree."

         {¶16} It was undisputed Appellant had previously been convicted of violating a

protection order as set forth in subsection (3) above.
Tuscarawas County, Case No. 2012 AP 08 0047                                               4


       {¶17} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). “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 at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine “whether in resolving conflicts in the evidence, the jury 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. Martin, 20 Ohio App.3d 172 (1983), 175. See also, State v.

Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new trial “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Martin at 175.

       {¶18} Upon review of the record, we find the evidence and testimony introduced

at trial sufficiently credible to establish Appellant violated the terms of the protection

order by recklessly coming within the prohibited range set forth in the order, and

verbally harassing Tingler. Appellant had alcohol in his possession, and appeared to be

under the influence of alcohol while within 500 feet of Tingler, yelling obscenities in her

direction. Accordingly, Appellant's conviction is not against the manifest weight nor

sufficiency of the evidence.

       {¶19} Appellant’s sole assignment of error is overruled.
Tuscarawas County, Case No. 2012 AP 08 0047                                     5


       {¶20} Appellant's conviction in the Tuscarawas County Court of Common Pleas

is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin _____________________
                                         HON. W. SCOTT GWIN


                                         s/ John W. Wise______________________
                                         HON. JOHN W. WISE
Tuscarawas County, Case No. 2012 AP 08 0047                                        6


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
OREST WESTON                              :
                                          :
       Defendant-Appellant                :         Case No. 2012 AP 08 0047




 For the reason stated in our accompanying Opinion, Appellant's conviction entered by

the Tuscarawas County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
