[Cite as State v. Hoopingarner, 2011-Ohio-3040.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Sheila G. Farmer, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 10AP080030
:
:
GARY HOOPINGARNER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Tuscarawas
County Court Case No. CRB0900585
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 14, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. SCOTT DEEDRICK DAVID L. BLACKWELL
Special Prosecutor, 3405 Curtis Road, S.E.
Village of Dennison New Philadelphia, Ohio 44663
125 East High Avenue
New Philadelphia, Ohio 44663
[Cite as State v. Hoopingarner, 2011-Ohio-3040.]
Edwards, J.
{¶1} Appellant, Gary Hoopingarner, appeals a judgment of the Tuscarawas
County Court convicting him of violation of a protection order (R.C. 2919.27(A)(1)) upon
a plea of no contest and sentencing him to 180 days incarceration. Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On September 18, 2009, an ex parte Domestic Violence Civil Protection
Order (CPO) was issued against appellant in favor of Denise Twardoski. Patrolman
Matt Grezlik of the Dennison Police Department advised appellant of the existence of
the CPO by telephone on September 21, 2009. In a face-to-face conversation with
Chief Rob Hunt of the Dennison Police Department on September 24, 2009, appellant
was advised of the existence of the CPO and the significant terms contained therein.
However, appellant had not yet been served with the CPO.
{¶3} On September 27, 2009, a complaint was issued against appellant by
Chief Hunt, signed by Denise Twardoski, for violation of the CPO. The complaint
alleged that appellant violated the order by driving within 500 feet of Twardoski’s
residence, observing her at the Dennison Yard and not leaving the area, and parking
within 500 feet of Twardoski’s new boyfriend’s residence.
{¶4} Appellant moved to dismiss the complaint on the basis that he could not
be convicted of the offense when he had not been served with the complaint. The court
held a hearing on the motion, at which Ptl. Grezlik and Chief Hunt both testified that
they informed appellant of the existence of the CPO and its significant terms prior to the
alleged violation. The trial court overruled the motion to dismiss, finding that appellant
Tuscarawas County App. Case No. 10AP080030 3
had knowledge of the order before the date of the alleged offense, which was sufficient
to prove a violation of R.C. 2919.27, as the statute only requires proof that the
defendant acted in reckless disregard of a known risk that the protection order likely
existed. Judgment Entry, March 24, 2010. The court found that service of the order
was not an element of the offense. Id.
{¶5} On March 31, 2010, appellant entered a plea of no contest and was found
guilty. He assigns a single error on appeal:
{¶6} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND/OR
ABUSED ITS DISCRETION WHEN IT FAILED TO FIND THE APPELLANT NOT
GUILTY OF THE OFFENSE. THE TRIAL COURT’S DETERMINATION OF GUILT IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶7} Appellant argues that the court’s judgment finding him guilty is against the
manifest weight of the evidence. Appellant pleaded no contest to the offense of
violation of the CPO.
{¶8} By entering a plea of no contest, appellant is precluded from raising a
manifest weight claim on appeal. State v. Gronbach (July 1, 1999), Fairfield App. No.
98CA73, unreported at 2, citing State v. Wells (Feb. 16, 1999), Warren App. No. CA98-
05-057, unreported, at 1. “By entering a plea of no contest, appellant has waived certain
constitutional rights, including the right to have the state prove its case beyond a
reasonable doubt.” Id., citing State v. Hale (Nov. 15, 1993), Butler App. No. CA93-04-
065, unreported, at 5. “The court can only weigh the evidence where the defendant has
plead not guilty and evidence on both sides has been presented.” Wells at 1, citing on
State v. McGhee (Jan. 18, 1995), Montgomery App. No. 14515, unreported, at 2.
Tuscarawas County App. Case No. 10AP080030 4
{¶9} In order to obtain a conviction of a defendant who has pleaded no contest,
the state must offer an explanation of the circumstances to support the charge. This
explanation is sufficient if it supports all the essential elements of the offense. Chagrin
Falls v. Katelanos (1988), 54 Ohio App.3d 157, 159, 561 N.E.2d 992, 994. A defendant
who pleads no contest has a substantive right to be acquitted where the state's
statement of facts fails to establish all of the elements of the offense. Cuyahoga Falls v.
Bowers (1984), 9 Ohio St.3d 148, 150, 459 N.E.2d 532, 534-535; State v. Gilbo (1994),
96 Ohio App.3d 332, 337, 645 N.E.2d 69, 72.
{¶10} The court’s judgment entry of conviction and sentence states:
{¶11} “This matter came before the Acting Judge Michael Cochran on the 31st
day of March, 2010. The Village of Dennison was represented by its Special
Prosecutor/Solicitor R. Scott Deedrick The Defendant was present and was represented
by Counsel, Attorney David Blackwell. The Defendant was apprised of his/her rights
and having first knowingly, intelligently and voluntarily waived said rights, the Court
hereby accepts the Defendant’s pleas(s) as set forth below. Being apprised in the
particulars of this matter, and the Defendant having stipulated to the findings herein
without the necessity of the presentation of further evidence thereon…”
{¶12} Therefore, it appears there was a plea hearing on March 31, 2010, at
which appellant was represented by counsel and stipulated to the facts. However,
appellant ordered only a transcript of the March 19, 2010, Motion to Dismiss hearing.
Because we do not have a transcript of the March 31, 2010, plea hearing, we do not
know what facts appellant stipulated to in the state’s explanation of the circumstances to
support the charge, and we cannot find that the court erred in finding appellant guilty
Tuscarawas County App. Case No. 10AP080030 5
based on that plea. When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon and
thus, as to those assigned errors, the court has no choice but to presume the validity of
the lower court's proceedings, and affirm. Knapp v. Edwards Laboratories (1980), 61
Ohio St. 2d 197, 199, 400 N.E.2d 384.
{¶13} The assignment of error is overruled.
{¶14} The judgment of the Tuscarawas County Court is affirmed.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0225
[Cite as State v. Hoopingarner, 2011-Ohio-3040.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
GARY HOOPINGARNER :
:
Defendant-Appellant : CASE NO. 10AP080030
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court is affirmed. Costs assessed to appellant.
_________________________________
_________________________________
_________________________________
JUDGES