[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