        [Cite as State v. Brogden, 2018-Ohio-735.]

                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                   :    APPEAL NO. C-170185
                                                     TRIAL NO. 16CRB-32986
       Plaintiff-Appellee,                       :
                                                          O P I N I O N.
 vs.                                             :

ASHLEY BROGDEN,                                  :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: March 2, 2018 March 2, 2018


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.

       {¶1}    Ashley Brogden appeals her conviction, following a bench trial, for

violating a protection order.    The state concedes that the conviction must be

reversed. Because the state failed to prove that the protection order was in effect on

the date of the offense, we reverse the conviction and discharge Brogden from further

prosecution.

                         Facts and Procedural History

       {¶2}    On December 8, 2016, Brogden was charged with one count of

violating a civil protection order in violation of R.C. 2919.27(A)(2), a misdemeanor of

the first degree. The protection order was an ex-parte, temporary order obtained by

her neighbor, Jessica Wilson, on November 3, 2016.           Both lived in the same

apartment building, and their apartments were next door to each other.

       {¶3}    On November 22, 2016, Officer Price responded to a call regarding an

alleged assault of Wilson by Brogden. While Price was speaking with Brogden, he

learned that the temporary protection order had not been served on Brogden. Price

retrieved the temporary protection order from the police station and returned to

serve Brogden a copy of the order.

       {¶4}    On December 8, 2016, Jessica Wilson filed a complaint alleging that

Brogden verbally harassed her by cursing at her and threatening violence on multiple

occasions between December 6 and 8, 2016. Brogden entered a not-guilty plea, and

the case proceeded to a bench trial.

       {¶5}    At trial, Wilson and her mother testified that Brogden shouted insults

at Wilson all three days. Brogden testified that Wilson taunted her all three days,

and Brogden responded to her once.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}   Price identified the ex-parte protection order that he had served on

Brogden on November 22, 2016. The order that he delivered to her was effective

until November 16, 2016, when the full hearing was scheduled. The protection order

was admitted into evidence.

       {¶7}   After closing arguments, the trial court reviewed the protection order

and noted that it had expired on November 16, 2016, before the alleged violation.

The court then asked the prosecutor if she had another protection order.

       {¶8}   The prosecutor had a separate entry showing that the full hearing on

the protection order had been continued until February 14, 2017, and that the

temporary order remained in effect until then. The entry had not been attached to

the temporary order, and the return of service upon respondent was left blank. The

entry was not certified, and Price did not identify the entry or testify that he had

served Brogden with a copy of the entry continuing the temporary order.

       {¶9}   The trial court allowed the state to admit the document as evidence,

over Brogden’s objection. The court found Brogden guilty and sentenced her to 180

days plus court costs.

                                 Law and Analysis

       {¶10} In her first assignment of error, Brogden argues that the conviction

was based on insufficient evidence because the state failed to prove that the

protection order was in effect on the date of the alleged offense.

       {¶11} In a challenge to the sufficiency of the evidence, the question is

whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found all the essential elements of the crime proved




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                     OHIO FIRST DISTRICT COURT OF APPEALS



beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶12} To prove a violation of a civil protection order, the state is required to

prove that the order was in effect on the date of the offense. See State v. Frazier, 158

Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 9-10 (1st Dist.); State v.

Collins, 4th Dist. Meigs No. 96 CA 33, 1997 WL 426150 (July 16, 1997).

       {¶13} The state concedes that the entry was not properly admitted into

evidence, and that the state failed to prove the protection order was in effect on the

date of the offense. Therefore, Brogden’s conviction was based upon insufficient

evidence.

                                     Conclusion

       {¶14} Accordingly, we sustain the first assignment of error. We reverse the

judgment of conviction and discharge Brogden from further prosecution.                 Our

disposition of the first assignment of error renders the second assignment of error

challenging the trial court’s failure to allow Brogden her right of allocution moot.

                                         Judgment reversed and appellant discharged.

MOCK, P.J., and MILLER, J., concur.




Please note:
       The court has recorded its own entry this date.




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