[Cite as Strongsville v. N.D., 2016-Ohio-7484.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103844
CITY OF STRONGSVILLE
PLAINTIFF-APPELLEE
vs.
N.D.
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Berea Municipal Court
Case No. 15CRB00411
BEFORE: Keough, P.J., S. Gallagher, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 27, 2016
ATTORNEYS FOR APPELLANT
Kimberly Kendall Corral
Baioni Corral, L.L.P.
1497 East 361st Street, Suite 3
Eastlake, Ohio 44095
Carlos K. Johnson
1220 West Sixth Street, Suite 203
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
George F. Lonjak
City of Strongsville Prosecutor
18688 Royalton Road
Strongsville, Ohio 44136
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, N.D., appeals his conviction of violating a domestic
violence protection order. For the reasons that follow, we reverse and remand for the
trial court to enter a judgment order vacating N.D.’s conviction.
{¶2} On February 1, 2015, N.D. was charged in the Berea Municipal Court under
case number 15CRB00146 with two counts of domestic violence in violation of R.C.
2919.25.1 From the record before this court, it appears that N.D. pleaded not guilty to
these charges on February 3, 2015. Subsequently, on February 10, the court issued a
temporary protection order (“TPO”) in that case prohibiting N.D. from having contact
with his wife, K.D., the alleged victim of the domestic violence charges.
{¶3} Subsequently on March 19, 2015, the city of Strongsville charged N.D. in this
case under case number 15CRB00411 with two counts of violating the domestic violence
protection order in violation of R.C. 2919.27. It was alleged that N.D. violated the
protection order on or about February 23, 2015.
{¶4} Both cases proceeded to trial. Following a jury trial in case number
15CRB00146, N.D. was acquitted of both domestic violence charges. Prior to trial in
this case on the TPO violations, N.D. moved to dismiss the complaint, arguing that the
underlying TPO was invalid because neither the victim nor the arresting officer had
The domestic violence case is not before this court and no record of that case has been
1
transmitted to this court.
moved for a TPO and the municipal court failed to conduct a hearing pursuant to R.C.
2919.26 before ordering the TPO. The trial court denied N.D.’s motion to dismiss.
{¶5} Also prior to trial, the city dismissed one count of violating the TPO. The
remaining count was tried before the bench, where the court heard evidence that N.D.
submitted an application seeking employment with wife’s employer. The application
was submitted to human resources, the department that his wife supervised. The court
found N.D. guilty of violating a protection order and ordered him to pay a $100 fine and
court costs.
{¶6} N.D. now appeals, raising three assignments of error.
I. Subject Matter Jurisdiction
{¶7} In his first assignment of error, N.D. contends that the court erred in finding
that he violated the domestic violence TPO because the municipal court did not have
subject matter jurisdiction to even issue the TPO.
{¶8} Initially, we note that the TPO was issued in case number 15CRB00146 as a
result of two domestic violence charges filed against N.D.. Whether N.D. challenged the
court’s jurisdiction to issue the TPO in that case is not in the record before this court.
{¶9} Nevertheless, the Berea Municipal Court was established statutorily by R.C.
1901.01(A). Municipal courts have original jurisdiction “[i]n any action concerning the
issuance and enforcement of temporary protection orders pursuant to R.C. 2919.26.”
R.C. 1901.18(A)(9).
{¶10} The court issued the domestic violence TPO pursuant to R.C. 2919.26.
Subsection (D)(1) states, in pertinent part,
[u]pon the filing of a complaint that alleges a violation of section 2909.06,
2909.07, 2911.12, or 2911.211 of the Revised Code if the alleged victim of
the violation was a family or household member at the time of the violation,
a violation of a municipal ordinance that is substantially similar to any of
those sections if the alleged victim of the violation was a family or
household member at the time of the violation, any offense of violence if
the alleged victim of the offense was a family or household member at the
time of the commission of the offense, * * * the court, upon its own motion,
may issue a temporary protection order as a pretrial condition of release if it
finds that the safety and protection of the complainant, alleged victim, or
other family or household member of the alleged offender may be impaired
by the continued presence of the alleged offender.
{¶11} N.D. contends that although the complaint filed in the domestic violence
case involved a family or household member, the complaint did not involve any violations
of the statute enumerated in R.C. 2919.26 to allow the court to issue the TPO. However,
N.D.’s argument is premised on an incomplete reading of the statute.
{¶12} The statute clearly allows a trial court to issue a TPO in cases where the
complaint alleges “any offense of violence if the alleged victim of the offense was a
family or household member at the time of the commission of the offense.” R.C.
2919.26(D)(1). The underlying offense, domestic violence, is an offense of violence, see
R.C. 2901.01(A)(9)(a), and the alleged victim was N.D.’s wife, who by definition, is a
family member under R.C. 2919.25(F)(1)(a)(i).
{¶13} Accordingly, the Berea Municipal Court acted within its subject matter
jurisdiction when it issued the TPO in the domestic violence case. The first assignment
of error is overruled.
II. Due Process Violation
{¶14} In his second assignment of error, N.D. contends that the TPO was issued in
violation of his statutory and constitutional right to due process. Specifically, N.D.
contends that neither the victim nor the arresting officer ever moved the trial court for a
TPO and, therefore, the court erred in issuing the TPO. N.D. also argues that despite this
procedural deficiency, the court failed to hold the requisite hearing within the statutory
time frame. Again, N.D.’s arguments are premised on a misreading and incomplete
review of R.C. 2919.26.
{¶15} R.C. 2919.26(D)(1) allows a court, upon its own motion, to “issue a
temporary protection order as a pretrial condition of release if it finds that the safety and
protection of the complainant, alleged victim, or other family or household member of the
alleged offender may be impaired by the continued presence of the alleged offender.”
{¶16} Again, the record before this court does not reveal whether N.D. challenged
the issuance of the TPO in the domestic violence case. Nevertheless, and although the
record in 15CRB00146 was not transmitted or made a part of this appeal, we can discern
from the record before this court that the TPO was issued by the trial court on February
10, 2015 following a complaint for domestic violence.2 However, we cannot discern
The record transmitted to this court contains a copy of the TPO, which was included in the
2
trial court’s pagination as document No. 6. A review of the trial court’s docket reveals that the TPO
was never journalized or docketed as a filing in the case before this court; thus, it will not be
considered to be part of the trial court record. See Dragway 42, L.L.C. v. Kokosing Constr. Co., 9th
Dist. Wayne No. 09CA0008, 2009-Ohio-5630, ¶ 3, fn. 1 (only journalized documents are to be
considered).
from the record on appeal what occurred on February 10 when the TPO was issued
because that record is not before this court.
{¶17} Therefore, whether the trial court conducted the requisite hearing within the
appropriate time frame after the TPO was issued, or whether N.D. waived his right to a
hearing, is undeterminable from the record before this court. In the absence of the actual
TPO issued, the case file under which the TPO was issued, or a transcript of the February
10 hearing, we presume regularity of the proceedings in case number 15CRB00146,
including that N.D. was afforded due process regarding the TPO. See Hinton v.
Newburgh Hts., 8th Dist. Cuyahoga No. 103412, 2016-Ohio-2727, ¶ 18, citing Knapp v.
Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980) (it is appellant’s
burden to ensure that all necessary parts of the record are before the appellate court, and
when a piece of the record necessary to determine an assignment of error is missing, an
appellate court has no choice but to presume the validity of the proceedings below and
affirm).
{¶18} Accordingly, N.D.’s second assignment of error is overruled.
III. Sufficiency of the Evidence
{¶19} In his third assignment of error, N.D. contends that his conviction is against
the sufficiency of the evidence. We agree.
{¶20} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test
for sufficiency requires a determination of whether the prosecution met its burden of
production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶
12. An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. 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. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A sufficiency of the
evidence challenge tests whether the prosecution’s case is legally adequate to satisfy the
requirement that it contain prima facie evidence of all the elements of the charged
offense. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶21} In this case, N.D. was convicted of violating R.C. 2919.27(A)(1), which
prohibits a person from recklessly violating the terms of any protection order issued or
consent agreement approved pursuant to R.C. 2929.26. A person acts “recklessly” when
“with heedless indifference to the consequences, he perversely disregards a known risk
that his conduct is likely to cause a certain result or is likely to be of a certain nature. A
person is reckless with respect to circumstances when, with heedless indifference to the
consequences, he perversely disregards a known risk that such circumstances are likely to
exist.” R.C. 2901.22(C).
{¶22} Our review of this assignment of error is hindered because the TPO at
issue is not part of the record. In fact, the trial court noted prior to the start of trial that
the TPO was not included in the case file. See tr. 15-16. Nevertheless, prior to and after
trial, the trial court seemed to take judicial notice of the content of the TPO. This was
improper. A trial court may not generally take judicial notice of prior proceedings in the
court, but may only take judicial notice of prior proceedings in the immediate case. State
v. Lemley, 4th Dist. Gallia No. 04CA4, 2005-Ohio-155, ¶ 11, citing State v. Blaine, 4th
Dist. Highland No. 03CA9, 2004-Ohio-1241. The rationale for this holding is that if a
court takes notice of a prior proceeding, the appellate court cannot review whether the
trial court correctly interpreted the prior case because the record of the prior case is not
before the appellate court. Lemley at id., citing Phillips v. Rayburn, 113 Ohio App.3d
374, 680 N.E.2d 1270 (4th Dist.1996). Because the TPO was issued in the domestic
violence case and was part of that record, the trial court improperly took judicial notice of
a prior proceeding. For the trial court to consider the content of the TPO, it had to be
introduced and admitted as an exhibit or stipulated to by N.D. Our review of the record
reveals that it was neither an exhibit nor a stipulation. Accordingly, any reference to the
content of the TPO by the court was in error.
{¶23} In order for the city to prove that N.D. violated a temporary protection order
pursuant to R.C. 2919.27, the city had to prove that N.D. violated a term of the protection
order that was in effect at the time of the violation.
{¶24} In this case, testimony was presented that on February 22, 2015, a 30-page
application of employment containing N.D.’s personal contact information, including
educational background and work history, was submitted electronically from N.D.’s
personal email to HealthSpan, K.D.’s employer for the past 12 years.3 K.D. testified that
she worked in the human resources department, which received employment applications.
{¶25} R.V. testified that she received the electronic application, and upon noticing
that the application was from her supervisor’s husband, she showed it to K.D. R.V.
testified that she presented the application to K.D. because the company has a policy
related to conflicts of interest. K.D. testified that HealthSpan has an anti-nepotism
policy, which prohibits employing multiple family members with the company. She
further testified that after receiving the application, she contacted the police because she
thought it might be a violation of the protection order. (Tr. 34.)
{¶26} Sergeant G.M. of the Strongsville Police Department testified that he took
the report from K.D. regarding the alleged violation. He stated that he “confirmed the
temporary protection order was intact at the time of the alleged violation” and he
subsequently issued the complaint against N.D.. (Tr. 40.) On cross-examination, he
explained why he issued the complaint: “I was looking at the generality of the protection
order itself and was there a violation. And that piece of evidence [the application] says
that there was. * * * This case, this Court specifically noted in the temporary protection
order that Mr. D. was not allowed to have any contact with Mrs. D.’s employer.” (Tr.
41-42.)
Although a copy of the application was introduced and admitted into evidence, the
3
application was not provided to this court on appeal.
{¶27} Viewing the evidence in the light most favorable to the city, sufficient
evidence was presented for the trier for fact to conclude that the application of
employment was submitted by N.D. However, insufficient evidence was presented for
the trier of fact to conclude that this electronic submission was a violation of a term of the
TPO that was in place on February 22, 2015. Although Sergeant G.M. testified about
what the TPO prohibited, this testimony was not offered for the truth of the matter
asserted; rather, it was offered to explain why he issued the complaint against N.D.
Therefore, because it was not offered as substantive evidence, the city could not use this
testimony to prove what term of the TPO was allegedly violated. See State v. McKelton,
Slip Opinion No. 2016-Ohio-5735, ¶ 128, citing State v. Kirk, 6th Dist. Huron No.
H-09-006, 2010-Ohio-2006, ¶ 28 (where hearsay is received for a purpose other than the
truth of its content, then the content is not substantive evidence). Furthermore, as
previously explained, the court could not take judicial notice of the TPO to determine
whether N.D. violated a term or condition of the TPO.
{¶28} Because the TPO was not presented as evidence, or stipulated to by the
defense, no substantive evidence or testimony was presented explaining what section of
the TPO N.D. violated when his application was sent to his wife’s employer. Without
the TPO itself, a stipulation, or any substantive testimony explaining what the terms and
conditions of the TPO included, the city presented insufficient evidence to prove that
N.D. violated the TPO in effect on February 22, 2015. Accordingly, N.D.’s third
assignment of error is sustained.
{¶29} Judgment reversed and remanded for the trial court to enter an order
vacating N.D.’s conviction.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR