[Cite as Cleveland v. K.C., 2018-Ohio-3567.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 106364



                                CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                               K. C.
                                                      DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2016 CRB 017468

        BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                     September 6, 2018
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
Erika B. Cunliffe
Frank Cavallo
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Barbara Langhenry
Director of Law
City of Cleveland
Katherine Keefer
Assistant City Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, K.C., appeals from Cleveland Municipal Court’s

judgment convicting him of violating a protection order. For the reasons set forth below,

we reverse and remand with instructions for the court to enter an order vacating K.C.’s

conviction.

       {¶2} In September 2016, K.C. was charged with the violation of a protection

order. The complaint lists the date of the offense as September 15, 2016. K.C. pled not

guilty to the charge, and the matter proceeded to trial before the bench. The following

evidence was adduced at trial.

       {¶3} On September 15, 2016, the victim, C.J., drove to a McDonald’s on St.

Clair Avenue in Cleveland, Ohio. C.J. testified that as she was exiting the drive-thru

lane, a car was stopped in front of her. She honked her horn and went around the

vehicle. As she drove by, she noticed two people in the car. C.J. identified K.C. as the

driver and a female in the front passenger seat, later identified as Robin Jackson

(“Jackson”). C.J. testified that K.C. is her ex-husband. They were married for 17 years

before they divorced. C.J. testified that they have a long and troubled history together,

and she has sought several protection orders against K.C. in the past.

       {¶4} She testified that she turned left out of the McDonald’s parking lot and

proceeded onto St. Clair Avenue. C.J. further testified that K.C. exited McDonald’s and

proceeded to follow her. She sped up in an attempt to lose K.C. The two vehicles

eventually separated but came back into contact with each other on C.J.’s street, with
K.C. blocking C.J.’s driveway. C.J. exited her vehicle, exchanged words with K.C., and

then reentered her vehicle. After this, K.C. drove away. C.J. then went to the police

station to make a report.

       {¶5} C.J. further testified that she had filed several protection orders against K.C.

in the past. Most recently, C.J. filed for an ex parte order on March 31, 2016, and a full

hearing was held on May 25, 2016.         K.C. did not attend either hearing.      The full

protection order was granted until May 24, 2021, which was admitted into evidence as

“Exhibit 1.”

       {¶6} K.C. testified on his own behalf. He testified that he did not appear at the

protection order hearing because he “never knew that it existed.” He testified that he did

not get notice of the hearing because he moved and did not receive notice at his new

address.

       {¶7} With regard to the incident in question, K.C. stated that he was driving

Jackson, a family friend, to work. Jackson wanted to eat at McDonald’s before work.

K.C. entered the parking lot and discovered that the drive-thru line was too long. K.C.

and Jackson decided to leave and try another restaurant on their route to Jackson’s place

of employment.     While they were leaving, K.C. realized that C.J. was also in the

McDonald’s parking lot. Both cars turned left out of the parking lot and proceeded on

St. Clair Avenue. The two cars drove alongside one another for a period of time before

they separated.    K.C. testified that C.J. was following his vehicle.       Both vehicles

encountered each other shortly thereafter on C.J.’s street, where C.J. yelled “something at
him.” He then proceeded down C.J.’s street and drove Jackson to work. Afterwards,

K.C. went to the police station, but did not make a formal report. He told the officer that

he and C.J. have had “a crazy past” and “there’s also a TPO on me.”

       {¶8} After the conclusion of trial, the court found K.C. guilty of violation of a

protection order. The court sentenced K.C. to five years of active probation. As part of

his probation, the court ordered K.C. to have no contact with the victim, no new cases, a

substance abuse assessment with counseling, anger management classes, parenting

classes, and random drug screens. Lastly, the court ordered K.C. to pay a $1,000 fine,

$900 of which was suspended, plus costs, and 180 days in jail, which was also suspended.

       {¶9} K.C. now appeals, raising the following two assignments of error for

review:

                                 Assignment of Error One

       The trial court erred by finding [K.C.] guilty of the single count of the
       indictment based upon insufficient evidence.

                                Assignment of Error Two

       The trial court erred by finding [K.C.] guilty of the single count of the
       indictment against the manifest weight of the evidence.

                               Sufficiency of the Evidence

       {¶10} In the first assignment of error, K.C. argues there was insufficient evidence

to sustain his conviction of violating a protection order because the city did not introduce

any evidence proving that he was served with the protection order.

       {¶11} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶
113, the Ohio Supreme Court explained the standard for sufficiency of the evidence as

follows:

      Raising the question of whether the evidence is legally sufficient to support
      the jury verdict as a matter of law invokes a due process concern. State v.
      Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In
      reviewing such a challenge, “[t]he 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
      (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443
      U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      {¶12} We are mindful that in considering the sufficiency of the evidence a certain

perspective is required. State v. Eley, 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978).

“This court’s examination of the record at trial is limited to a determination of whether

there was evidence presented, ‘which, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio

St. 542, 546, 155 N.E. 189 (1926). It is the mind of the trier of fact, rather than a

reviewing court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 1356 (1982).

       {¶13} Here, K.C. was convicted of the violation of a protection order as set forth

in R.C. 2919.27, which provides that “[n]o person shall recklessly violate the terms of * *

* [a] protection order issued or consent agreement approved pursuant to [R.C.]

3113.31[.]” Id. at (A)(1).

       {¶14} In State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972, the

Ohio Supreme Court held that “the state must establish, beyond a reasonable doubt, that it
served the defendant with the [protection] order before the alleged violation.” Id. at

syllabus. The Supreme Court concluded:

       The requirements of R.C. 2903.214 are incorporated into
       R.C. 2919.27(A)(2). R.C. 2903.214(F)(1) requires delivery of the
       [protection order] to the respondent before a violation of
       R.C. 2919.27(A)(2) can be charged. The only manner by which the court
       is able to fulfill this mandate is to serve the [protection order]. Therefore, to
       sustain a conviction for a violation of a protection order pursuant to R.C.
       2919.27(A)(2), the state must establish, beyond a reasonable doubt, that it
       served the defendant with the order before the alleged violation.

Id. at ¶ 28.

       {¶15} Although the facts in the instant case differ slightly from the facts in Smith

because Smith was charged with a violation of R.C. 2919.27(A)(2) rather than (A)(1), a

similar requirement of delivery of the protection order is contained in R.C. 3113.31,

which is incorporated by reference in R.C. 2919.27(A)(1).                     Compare R.C.

2903.214(F)(1) with 3113.31(F)(1).          See State v. Terrell, 2d Dist. Clark No.

2013-CA-102, 2014-Ohio-4344. Consequently, in order to obtain a conviction in this

case, the state must prove, beyond a reasonable doubt, that K.C. was served with a copy

of the protection order he

allegedly violated prior to September 15, 2016, the date on which he engaged in conduct

that violated the protection order. Smith; Terrell; State v. Verga, 12th Dist. Warren No.

CA2014-11-134, 2015-Ohio-2582; State v. Johnson, 6th Dist. Wood Nos. WD-13-008

and WD-13-009, 2014-Ohio-2435.

       {¶16} A review of the record in the instant case is void of any evidence

demonstrating that the protection order was served on K.C. prior to September 15, 2016.
Although the state contends that through circumstantial evidence K.C. had been served

with the protection order, and the court ultimately found that K.C. knew of the protection

order, we find otherwise. The state relies on K.C.’s testimony that he: (1) went to the

police station to make a report and told the officer there was a protection order against

him; (2) admitted to not showing up for the protection order hearings in the past; and (3)

told Jackson they had to hurry up and get away from C.J. once he saw her at McDonald’s.

 Smith, however, clearly makes service of a protection order an essential element that the

state must prove to establish a violation of R.C. 2919.27.1 Here, the city did not establish

that K.C. was served with the protection order granted at the May 25, 2016 hearing.

       {¶17} The protection order in the instant case lists K.C.’s address as “C/O

Domestic Relations Court[,] 1 W. Lakeside Ave. RM 26, Cleveland, OH 44113[.]”

Though the protection order instructs the clerk of courts to deliver a copy to K.C., there

was no evidence introduced that he was actually served with a copy of the protection

order at the Domestic Relations Court. In fact, the testimony presented by both the

victim and K.C. was that he did not attend either hearing at court or any other day.

Additionally, there was no testimony from the clerk of courts that the protection order

was served on K.C. at any time prior to September 15, 2016.


       1Wenote that “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.”
State v. Meinke, 2017-Ohio-7787, 97 N.E.3d 1184, ¶ 9 (9th Dist.), fn. 1. This
amendment took effect roughly a month after the trial in the instant case.
       {¶18} Based on the foregoing, the state did not present any evidence proving the

necessary element of delivery of the protection order. As a result, there was insufficient

evidence to sustain K.C.’s conviction for violating a protection order.

       {¶19} Accordingly, the first assignment of error is sustained.

       {¶20} In the second assignment of error, K.C. argues his conviction is against the

manifest weight of the evidence.       However, in light of our disposition of the first

assignment of error, the remaining assignment of error is moot. App.R. 12.

       {¶21} Judgment is reversed and the matter is remanded with instructions for the

court to enter an order vacating K.C.’s conviction.

       It is ordered that appellant recover of appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
PATRICIA A. BLACKMON, J., CONCUR
