State of Ohio/City of Toledo v. Christopher M. Wilson

Toledo, Ohio - Criminal defense attorney represented Christopher Wilson with violating a civil protection order charge.

After a full hearing on April 12, the domestic relations court granted a

five-year CPO. Appellant did not appear at the hearing in that court, and the record does

not indicate appellant received service of the CPO. At the time of hearing and issuance

of the five-year CPO, appellant was still in custody in Lucas County. Appellant remained

in custody on other charges in additional cases for almost two years. Months later,

almost immediately after his release from custody, appellant's alleged conduct—

contacting the protected person via Facebook—resulted in the violation charged in this

case.

{¶ 3} On February 10, 2020, appellant appeared for trial and asked to remove the

public defender so that he might proceed pro se. The trial court granted the request, but

also permitted appellant's appointed trial counsel to present opening and closing

argument, who noted the lack of service of the CPO on appellant. Otherwise, appellant

represented himself, and appellant took the stand in his own defense, denying any attempt

to contact the protected person via Facebook and denying any knowledge of the five-year

CPO.

{¶ 4} The appellee, city of Toledo, presented no evidence of service, either actual

or constructive, but argued that the temporary, ex parte order remained in effect until the

date of service of the five-year CPO, so long as it occurred within the five-year period.

Specifically, the prosecution argued:

I think we're all in agreement – or at least the City's position is

[appellant] was properly served, with that ex parte order. It's his testimony 3.

he was in prison, at the time, that this occurred. He wasn't released for two

years. I think that what they're asking The Court to find is to create a

dangerous loophole in the protection order law. That if you can't show,

someone in prison might have been served a year or three years, down the

line, that these victims would not have a valid protection order in place. I

don't think that's the design or the spirit of provision six [of the CPO].1

I

think provision six gives this Court the ability to find that that ex parte

order, which was properly served, remains in effect. I guess, Judge, in

perpetuity until proper service of the full order has been effectuated or until

that full order expires, at the end of the five-year period, for which it was

granted.



1

This provision provides as follows: ALL OF THE TERMS OF THIS ORDER

SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL APRIL 10, 2023, unless

earlier modified or terminated by order of this Court. This Order remains in effect unless

modified by a divorce, dissolution of marriage or legal separation. Until this Order is

served upon the Respondent pursuant to Civ.R. 65.1, the terms of the Ex Parte CPO

remain in effect.



Civ.R. 65.1(C) mandates service of "documents required by the applicable

protection order statute to be served on the Respondent,” with initial service according to

Civ.R. 4.1(B) and Civ.R. 4 through 4.6, and subsequent service "in accordance with the

provisions of Civ.R. 5(B).” Civ.R. 65.1(C) contains no provision for delayed service

while a respondent remains incarcerated.

4.

The city now acknowledges a lack of evidence that appellant was served or had

constructive knowledge of the CPO, entered after the expiration of the temporary,

ex parte order, abandoning this prior "in perpetuity” position.

{¶ 5} The trial court found appellant guilty, and sentenced him to 180 days in the

Corrections Center of Northwest Ohio, with credit for 30 days already served.

{¶ 6} Appellant, through appointed appellate counsel, filed a timely appeal.2

In

challenging his conviction, appellant raises the following as error:

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY

REFUSING TO HEAR THE COLLATERAL ATTACK ON THE CIVIL

PROTECTION ORDER.

II. THE TRIAL COURT COMMITTED PLAIN ERROR IN

RULING THE CIVIL PROTECTION ORDER TO BE IN EFFECT

WHEN IT HAD NOT BEEN SERVED UPON MR. WILSON.

III. THE TRIAL COURT ERRED WHEN IT CONVICTED MR.

WILSON BECAUSE THE EVIDENCE PRESENTED BY THE CITY

BOTH LACKED THE SUFFICIENCY TO SUPPORT THE



2 Appellant also filed a motion for stay of sentence in the trial court, and the trial court

denied the motion. This court also denied appellant's motions for stay of sentence, first

on April 13, 2020, and then again on May 13, 2020. Appellee filed no opposition to a

stay, and briefing was delayed, first by appellant's counsel who requested an extension

on September 4, and later by appellee's counsel who requested an extension on

November 5, 2020. There was no request that we place the matter on the accelerated

docket.5.

CONVICTION AND THE CONVICTION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED.

{¶ 7} As noted by appellee, the sufficiency of evidence of service and knowledge

of the CPO is dispositive. Therefore, we address appellant's third assignment of error

first.

{¶ 8} Appellant was charged with violation of a protection order. "It is unlawful

for a person to recklessly violate the terms of a protection order issued, inter alia,

pursuant to R.C. 3113.31 (domestic violence protection order), R.C. 2919.27(A)(1), or

2903.214 (civil stalking protection order), R.C. 2919.27(A)(2).” State v. Johnson, 6th

Dist. Wood No. WD-13-008, 2014-Ohio-2435, ¶ 12. Here, the CPO issued pursuant to

R.C. 3113.31, which mandates notice to the respondent. Id. at ¶ 13, citing R.C.

3113.31(F)(1). Such notice requires either service of the order or constructive notice as

provided in R.C. 2919.27(D), which provides:

(D) In a prosecution for a violation of this section, it is not necessary

for the prosecution to prove that the protection order or consent agreement

was served on the defendant if the prosecution proves that the defendant

was shown the protection order or consent agreement or a copy of either or

a judge, magistrate, or law enforcement officer informed the defendant that

a protection order or consent agreement had been issued, and proves that

the defendant recklessly violated the terms of the order or agreement. 6.

{¶ 9} The city acknowledges the lack of service of the five-year CPO on appellant,

as required by R.C. 3113.31(F)(1), indicating the prosecution went forward "with the

belief it would be able to show [appellant] had constructive knowledge of the existence of

the 5 year CPO.” At trial, the city actually argued the continued effect of the ex parte

order, and asked appellant no questions on cross-examination regarding his constructive

knowledge of the CPO.3

{¶ 10} The city now concedes that it put forth insufficient evidence in support of a

finding of constructive knowledge. Without evidence of appellant's knowledge of the

CPO, the city failed to establish an essential element to prove a violation of R.C. 2919.27.

Accordingly, appellant's third assignment of error is well-taken, and his remaining

assignments of error are moot.

Upon due consideration, we vacate the judgment of the Toledo Municipal

Court. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.



Judgment vacated.