[Cite as 113703,
2024-Ohio-6019.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF PEPPER PIKE, :
Plaintiff-Appellee, :
No. 113703
v. :
R.E.S., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: December 26, 2024
Criminal Appeal from the Shaker Heights Municipal Court
Case No. 22CRB00920
Appearances:
Stephen L. Byron, Director of Law, City of Pepper Pike;
Diemert & Associates Co., L.P.A., and Thomas M.
Hanculak, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
MICHAEL JOHN RYAN, J.:
Defendant-appellant R.E.S. (“appellant”) appeals his conviction after
being found guilty by a jury of one misdemeanor count of violating a protection
order. For the reasons that follow, we reverse his conviction and remand to the trial
court for a new trial.
Appellant was charged with a one count of violating a protection order,
which was alleged to have occurred in September 2022. The protection order, titled
“Consent Agreement and Domestic Violence Civil Protection Order” (“DVPO”), was
issued on February 28, 2020, and is set to expire on January 3, 2025. The DVPO
covered appellant’s former wife (“D.M.”) and prohibited appellant, in part, from
contacting her place of employment or any of her coworkers.
On September 12, 2022, appellant contacted the human resources
director (“director”) at D.M.’s place of employment, a school district. Appellant had
been terminated from D.M.’s health insurance plan after their divorce, and he
contacted the school district to inquire about his removal because, according to
appellant, he suffered from long COVID and needed health insurance to pay for his
medication. As a result, a school resource officer contacted the Pepper Pike Police
Department, who investigated and eventually charged appellant with one count of
violating a protection order. The matter proceeded to a jury trial. Appellant
proceeded pro se, with standby counsel.
The director testified that he is responsible for overseeing employee
benefits, including health insurance, for employees at the school district.
On September 12, 2022, he received an email from appellant regarding appellant’s
removal from D.M.’s health care plan. The director testified that appellant was
removed from the health plan after he and D.M. divorced.
Sergeant Eric Kuznik of the Pepper Pike Police Department testified
that he received a report from a school district resource officer, who reported that
appellant had contacted the director via email. Sergeant Kuznik subpoenaed the
appellant’s email provider and was able to confirm that the email address that the
subject email came from belonged to appellant. Sergeant Kuznik testified that he
reviewed the DVPO, verified it was still active, and determined that the order
specifically prohibited appellant from contacting D.M.’s place of employment as well
as anyone who is employed there.
D.M. testified that she is employed by the district. She confirmed the
existence of the DVPO. She also confirmed that she had asked the school district to
remove appellant from her health care plan because they were no longer married.
During D.M.’s cross-examination, appellant attempted to introduce his
and D.M.’s judgment entry of divorce (“divorce decree”). Appellant explained that
he was planning to use the divorce decree as evidence that he did not act
intentionally because he relied on a provision in the divorce decree that terminated
all restraining orders, including, appellant thought, the DVPO. The court ruled that
the decree would not be allowed into evidence for several reasons, including that it
would be improper to allow the document to be introduced for the purpose of
questioning D.M. about appellant’s state of mind, because D.M. would be unable to
testify to appellant’s thoughts or intentions. The court ruled, however, that
appellant could testify as to his own intent in sending the email to the district.
Appellant testified in his own defense. He testified that he was
suffering from long COVID and needed health insurance. According to appellant,
he and his family have been devastated by the divorce and his medical diagnoses, so
he contacted the director to try and get his health insurance reinstated. Appellant
thought that the section of the divorce decree that terminated the restraining orders
included the DVPO.
The city introduced the DVPO into evidence. The DVPO stated that
only the court “may modify or terminate the protection order. Unless the court
modifies or terminates this order, you may be arrested for violating this protection
order.” The appellant conceded that he never petitioned the court to amend or
terminate the DVPO, admitted that the DVPO provided that it would still be active
in the event of a divorce, and stated that he never received notice stating the DVPO
was no longer active.
The jury found appellant guilty of the sole count in the indictment.
The trial court sentenced appellant to 180 days in jail, with 177 days suspended; a
$500 fine; and probation. The court also ordered appellant to complete behavioral
counseling, psychiatric/psychological evaluation and treatment, refrain from
alcohol and nonprescriptive drug consumption, and comply with the DVPO.
Appellant filed a notice of appeal and raises the following assignments
of error for our review:
I. The Trial Court abused its discretion by preventing [appellant] from
even attempting to introduce a relevant document that went directly to
his mens rea.
II. It was plain error for the trial court to allow the admission of
propensity evidence during the city’s opening, case-in-chief, and
closing.
III. The prosecution argued facts not in evidence during its closing,
prejudicing [appellant], and the trial court committed plain error in
allowing the statement.
IV. The cumulative effect of multiple errors at trial, even if singularly
not sufficient to warrant reversal, together deprived appellant of a fair
trial and a denial of due process.
Divorce Decree
In the first assignment of error, appellant contends that the trial court
abused its discretion when it refused to allow him to introduce his divorce decree
into evidence.
The admission or exclusion of relevant evidence is reviewed for
an abuse of discretion. Gerston v. Parma VTA, LLC, 2024-Ohio-3005, ¶ 55 (8th
Dist.), citing State v. Sage,
31 Ohio St.3d 173 (1987). “[T]he admission of
evidence lies within the broad discretion of the trial court, and a reviewing court
should not disturb evidentiary decisions in the absence of an abuse of discretion that
has created material prejudice.” State v. Conway,
2006-Ohio-2815, ¶ 62. An abuse
of discretion occurs when a court exercises “its judgment, in an unwarranted way,
in regard to a matter over which it has discretionary authority.” Johnson v.
Abdullah,
2021-Ohio-3304, ¶ 35.
Here, appellant tried to enter his divorce decree into evidence during
D.M.’s cross-examination. At side bar, appellant explained that he was planning to
have D.M. authenticate the divorce decree and question her concerning a provision
in the decree that provided that all restraining orders were dissolved. The trial court
denied appellant’s request, finding that the divorce decree had not been certified or
authenticated; appellant had failed to turn the document over in discovery; D.M.
could not testify as to appellant’s state of mind; the decree was irrelevant because it
was from a separate case and did not trump the DVPO; and the court did not allow
the city to discuss why D.M. sought the DVPO so the court would not allow appellant
to discuss the divorce decree.
Evid.R. 901(A) states all evidence must be properly authenticated
before it is admissible into evidence. State v. Lake, 2003-Ohio-332, ¶ 16 (7th Dist.).
The rule further provides that authentication is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims, including
the testimony of a witness with knowledge that the document is what it is claimed
to be. See Evid.R. 901(A) – (B)(1). D.M., as one of the parties to the divorce, was in
the position to authenticate the divorce decree, which she had signed. Although we
agree that D.M. would not be able to testify to appellant’s state of mind, had
appellant attempted to ask such a question, the city could have objected.
The city argued that the divorce decree was properly excluded because
it was never provided in discovery pursuant to Crim.R. 16. However, the record
reflects that appellant emailed the city several documents in discovery, but,
according to the city, it never saw the emails because they went to the prosecutor’s
spam email folder. It was not until the end of trial that the city found the missing
emails. The record does not reflect whether the divorce decree was one of the emails
that the city discovered; the court’s exclusion of the divorce decree was made prior
to the discovery of the emails.
The trial court also concluded that the divorce decree was irrelevant
evidence. We disagree. “‘Relevant evidence’ means any evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without
the evidence.” Evid.R. 401. The divorce decree was relevant because appellant
claimed that he thought that the provision in the decree terminated restraining
orders issued during the divorce also terminated the DVPO. Therefore, the divorce
decree, which included a provision that terminated all the previous restraining
orders, made the existence of the fact that appellant was under the belief that the
protection order was no longer in effect more probable than it would have been
without admission of the divorce decree.
The city also argued, and the court agreed, that appellant’s belief that
the divorce decree terminated the DVPO was irrelevant to the mens rea recklessness
element of the crime of violating a protective order because appellant was mistaken
in his belief that the divorce decree terminated the DVPO.
Appellant was convicted of violating a protection order, pursuant to
R.C. 2919.27(A), which provides that “[n]o person shall recklessly violate the terms
of . . . a protection order.”
“A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the
person’s conduct is likely to cause a certain result or is likely to be of a certain
nature.” R.C. 2901.22(C). “A person is reckless with respect to circumstances when,
with heedless indifference to the consequences, the person disregards a substantial
and unjustifiable risk that such circumstances are likely to exist.” Id.
Here, appellant should have had the opportunity to show that he was
not disregarding the known risk of violating a protection order because he did not
believe that the order was still active. A legal document, like his divorce decree, that
indicated that “restraining orders” are dissolved is certainly relevant to whether
appellant recklessly violated the terms of the DVPO; the jury could have concluded
that appellant’s honest belief was that the DVPO had been terminated by the divorce
decree and appellant was not reckless for failing to realize that the DVPO survived
the divorce decree. Simply, the jury should have been allowed to decide the validity
of appellant’s claim in determining whether he acted recklessly when he emailed the
district.
Appellant also contests the trial court’s conclusion that admission of
the divorce decree would cause jury confusion. It is well-settled that trial courts have
“wide latitude” to impose reasonable limits on cross-examination in order to
prevent, among other things, harassment, prejudice, and confusion of the issues.
State v. McKelton, 2016-Ohio 5735, ¶ 144 (2016). Here, the trial court found that
appellant’s plan to introduce the divorce decree during D.M.’s cross-examination
would have a high likelihood of confusing the jury. We disagree. The jury could
have differentiated between the divorce decree and the DVPO and determined
whether appellant recklessly violated the DVPO or had a bona fide belief that the
divorce decree terminated the DVPO.
Finally, the trial court ruled that appellant could not introduce the
divorce decree because the decree did not, in fact, dissolve the DVPO. Appellant
concedes that the DVPO survived the divorce decree. But appellant was not offering
the decree to show that it terminated the DVPO; he was trying to introduce the
decree to show that he believed the DVPO was no longer in place. This goes directly
to the issue of mens rea.
In light of the above, we conclude that the trial court abused its
discretion when it did not allow appellant to introduce his divorce decree into
evidence. The first assignment of error is sustained.
Denial of Due Process
In the second and third assignments of error, appellant argues that
the trial court erred and abused its discretion when it allowed the city to discuss
appellant’s convictions and introduce other facts not in evidence.
Appellant objects to three sets of statements made during trial: (1)
statements the city made during its opening argument; (2) portions of D.M.’s direct
examination; and (3) statements the city made during its closing argument.
Appellant concedes that he did not object to most of the now-
challenged statements and, as to those statements, he has waived all but plain error.
Plain error is an obvious error or defect in the trial court proceedings that affects a
defendant’s substantial rights and the outcome of the trial. Crim.R. 52(B); State v.
Rogers, 2015-Ohio-2459, ¶ 22. The Ohio Supreme Court has admonished appellate
courts to “notice plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” State v.
Barnes,
94 Ohio St.3d 21, 27 (2002), quoting State v. Long,
53 Ohio St.2d 91 (1978),
paragraph three of the syllabus. Specific to allegations of prosecutorial misconduct,
under a plain-error standard, a reviewing court asks whether a defendant would not
have been convicted in the absence of the improper conduct. State v. Abdullahi,
2024-Ohio-418, ¶ 29 (10th Dist.).
Opening Arguments
During its opening argument, the city brought up appellant’s previous
domestic violence conviction, arguing that it wanted to give “context” to the case
because domestic violence was what led D.M. to seek a protection order. Appellant
objected, and the trial court overruled his objection. The city told the jury:
The relationship, in effect it goes badly and poorly to the pinpoint
where there is a domestic violence. And it was severe domestic
violence. . . . [D.M.] filed a police report. In fact, one of the neighbors
called the police. . . . [Appellant] hires an attorney. They appear in
court, and he pleads no contest . . . to the domestic violence charge.
And he’s sentenced on that. Placed on probation.
Later in its opening argument, the city told the jury about another
conviction:
Just to show you that there’s no mistake and to give more context, in –
just a few months ago . . . this individual went to a jury trial, again on
the same exact type of charge, violation of a protective order. He was
found guilty and sentenced. One of the stipulations that the judge put
into the sentencing document was that he was not to violate the
protection order, and he violates it again.
The city’s statement that appellant had previously been convicted of
domestic violence against D.M. was highly prejudicial. Moreover, we note that the
city never questioned appellant regarding the reason the DVPO was issued during
his cross-examination; the information was not offered into evidence through
appellant’s testimony. The trial court mentioned at one point that it was not going
to let the city discuss the conviction; however, the court overruled appellant’s
objection when the city mentioned it in opening arguments, essentially giving
support to the city’s statement. See State v. Keenan, 66 Ohio St.3d 402, 410 (1993)
(In considering the prosecutorial misconduct, the court noted that “[t]he trial court
gave no curative instruction . . . ; indeed, it overruled an objection, giving the
prosecutor’s comment its approval in the jury’s eyes.”) Although the city argues it
was trying to give the current case “context,” it cannot be said that the probative
value of the statement outweighed the prejudice to appellant.
The city also told the jury that appellant had previously violated the
DVPO, was charged and convicted, and, as part of his sentence, ordered not to
violate it again. But the underlying violation in that case occurred in October 2020,
a month after the violation in this case. Thus, the city’s statement was an improper
statement of the facts.
Closing Arguments
Over appellant’s objection, the city stated in its closing argument that
the genesis of the DVPO was “marriage, children, assault . . . divorce, protection
order, another prosecution, and yet another prosecution.” No testimony or evidence
was presented at trial that D.M. had ever been charged with or convicted of assault.
Although D.M. testified that appellant had been convicted of violating a protective
order (for an offense that occurred after the offense in this case), there was no
evidence presented at trial that appellant has ever committed the crime of assault.
The city also told the jury during closing arguments that appellant
texted D.M.’s coworker “vile sexual conduct.” This allegation appears to have come
out of nowhere; there was no testimony or other evidence presented at trial that
appellant sent inappropriate text messages to D.M.’s coworker. The prejudice in the
city’s statement is apparent because the jury could infer that appellant violated the
DVPO again. Thus, in both its opening and closing arguments, the trial court
allowed the city to argue inflammatory facts not in evidence.
We are cognizant that the effect of any statements apparently not
based on facts in evidence made by a prosecutor during opening and closing
arguments are mitigated when the trial court instructs the jury, as it did in this case,
that opening and closing arguments are not evidence. See State v. Kirkland, 2020-
Ohio-4079, ¶ 117 (2020). But here the city made a series of inappropriate and/or
factually incorrect statements in telling the jury (1) appellant committed domestic
violence against D.M.; (2) appellant committed assault; and (3) appellant sent
inappropriate text messages to D.M.’s coworker.
Victim Testimony
During D.M.’s direct examination, the city elicited the following
testimony:
Q. . . . [D.M.] were you involved in litigation with [appellant] with
regards to the [DVPO]?
A. Yes.
Q. And when was that?
A. So, he had violated the [DVPO] in October of 2022.
Q. Okay. Do you recall going to trial in April of 2023?
A. We went to trial in June of 2023.
...
Q. What . . . was the issue of the trial?
A. That he violated the [DVPO].
Q. And did that go to a jury?
A. Yes.
Q. What was the verdict?
A. Guilty.
Evid.R. 404(B)(1) provides that “[e]vidence of any other crime, wrong
or act is not admissible to prove the person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” This type of
evidence is commonly referred to as “propensity evidence” because its purpose is to
demonstrate that the accused has a propensity to commit the crime in
question. State v. Slusarczyk, 2024-Ohio-4790, ¶ 34 (8th Dist.), citing State v.
Curry,
43 Ohio St.2d 66 (1975).
While Evid.R. 404(B)(1) bars the use of other-acts evidence to show
propensity, Evid.R. 404(B)(2) allows evidence of an accused’s other crimes, wrongs,
or acts to be admitted for other purposes, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
The evidence must prove something other than the accused’s disposition to commit
certain acts.
In State v. Hartman, 2020-Ohio-4440, the Ohio Supreme Court
reiterated the three-part guide set forth in State v. Williams,
2012-Ohio-5695, for
determining the admissibility of other-acts evidence. The Hartman Court stated
that for other-acts evidence to be admissible (1) the evidence must be relevant as set
forth in Evid.R. 401; (2) the evidence cannot be presented to prove a person’s
character to show conduct in conformity therewith, but must instead be presented
for a legitimate other purpose as set forth in Evid.R. 404(B); and (3) the probative
value of the evidence cannot be substantially outweighed by the danger of unfair
prejudice as set forth in Evid.R. 403. Id. at ¶ 20-33.
“Whether the other-acts evidence is relevant under the first step
of Williams is dependent upon whether the evidence is offered for a
nonpropensity purpose as set forth in the second step of Williams, i.e.,
a legitimate purpose for which the evidence is offered, and whether the
nonpropensity purpose goes to a material issue in the case.”
Slusarczyk at ¶ 37, quoting State v. Hale,
2024-Ohio-1587, ¶ 65 (8th Dist.).
“The admissibility of other-acts evidence pursuant to Evid.R. 404(B)
is a question of law.” Hartman at ¶ 22, citing Leonard, The New Wigmore:
Evidence of Other Misconduct and Similar Events, Section 4.10 (2d Ed. 2019).
However, the trial court’s weighing of the probative value of admissible evidence
against the danger of unfair prejudice to the defendant pursuant to Evid.R. 403(A)
involves an exercise of judgment and is reviewed for an abuse of
discretion. Hartman at ¶ 30.
The city claims that evidence of appellant’s other DVPO violation was
admissible to show that appellant did not make a mistake when he emailed D.M.’s
place of employment. In other words, the city claims that reference to appellant’s
conviction was made for the purpose of dispelling appellant’s mistake defense, i.e.,
that the probative value of appellant’s other DVPO violation demonstrates that his
actions in this case were not made by accident or mistake. But the October 2022
incident occurred a month after the incident giving rise to this case. It is unclear to
this court how referencing a future bad act can be used to determine a person’s state
of mind for a prior alleged offense. It does not matter that appellant was convicted
of the October 2022 violation before the conviction in this case. The October 2022
violation was committed after the incident giving rise to this case. Future conduct
cannot inform past conduct. Therefore, testimony regarding the October 2022
violation was irrelevant, was only presented to the jury to show appellant’s character
and was not presented for a legitimate other purpose as set forth in Evid.R. 404(B);
the probative value of the evidence was substantially outweighed by the danger of
unfair prejudice to appellant.
The trial court’s decision to allow in the evidence pursuant to Evid.R.
404(B) was in error.
During oral argument before this court, the city claimed that
R.C. 2945.54 allows evidence of this type, i.e., evidence of a future bad act. The city
did not mention the Revised Code section in its brief on appeal nor does
R.C. 2945.54 govern evidence in criminal cases. R.C. 2945.54 provides:
The examination of witnesses by deposition in criminal cases shall be
taken and certified, and the return thereof to the court made as for
taking depositions under sections 2319.05 to 2319.31, inclusive, of the
Revised Code. The commissioners appointed under section 2945.50 of
the Revised Code to take depositions shall receive such compensation
as the court directs, to be paid out of the county treasury and taxed as
part of the costs in the case.
R.C. 2945.54 is inapplicable to this case.1
1 The city introduced appellant’s LEADS report into evidence during Sergeant
Kuznik’s testimony. The report stated that there was an active restraining order against
appellant and that appellant had “violent tendencies” and “prior domestic violence.” The
court redacted appellant’s social security number but did not redact any other prejudicial
information. Appellant did not object to the report’s admission at trial and has not raised
the issue on appeal.
Prejudicial Error
“A hallmark of the American criminal justice system is the principle
that proof that the accused committed a crime other than the one for which he [or
she] is on trial is not admissible when its sole purpose is to show the accused’s
propensity or inclination to commit crime.” Hartman, 2020-Ohio-4440, at ¶ 20,
citing Curry,
43 Ohio St.2d 66. “That philosophy is premised on our understanding
of human nature: the typical juror is prone to ‘much more readily believe that a
person is guilty of the crime charged if it is proved to his satisfaction that the
defendant has committed a similar crime.’” Hartman at
id., quoting State v. Hector,
19 Ohio St.2d 167 (1969).
The city’s statements during opening and closing arguments were
improper and prejudicial. However, “[a]n improper comment does not affect a
substantial right of the accused if it is clear beyond a reasonable doubt that the jury
would have found the defendant guilty even without the improper comments.” State
v. Treesh, 90 Ohio St.3d 460 (2001). The city is entitled to some freedom of
expression in summation, and opening and closing arguments must be viewed in
their entirety when determining whether a remark was prejudicial. State v. Keenan,
66 Ohio St.3d 402, 409 (1993), citing State v. Woodards,
6 Ohio St.2d 14, 26 (1966).
Although the trial court admonished the jury that the parties’ opening
statements and closing arguments were not evidence, the prejudice to appellant was
apparent throughout trial starting with the city’s opening statements where it
discussed other bad acts, to improper witness testimony about a past conviction, to
closing arguments where the city argued inflammatory facts not in evidence and
highlighted appellant’s prior conviction.
Having found that the city’s statements made during opening and
closing arguments as well as testimony elicited from D.M. regarding appellant’s
conviction was improper, we must determine whether the city’s statements and
D.M’s testimony constitute a denial of due process. We consider the effect the
misconduct had on the jury in the context of the entire trial. Keenan at 410. “One
factor relevant to the due-process analysis is whether the misconduct was an isolated
incident in an otherwise properly tried case.”
Id. That is not the case here; the
prejudice to appellant permeated the entire trial.
Considering the above, the improper statements during opening and
closing argument coupled with D.M.’s testimony about appellant’s prior conviction
unfairly prejudiced appellant and deprived him of a fair trial.
The second and third assignments of error are hereby sustained.
Cumulative Error
In the fourth and final assignment of error, appellant contends that
cumulative error deprived him of a fair trial.
Under the doctrine of cumulative error, a conviction will be reversed
when the cumulative effect of error during a trial deprives a defendant of a fair trial
even though each of the alleged instances of error do not individually constitute
cause for reversal. State v. DeMarco, 31 Ohio St.3d 191, 196 – 197 (1987).
The trial court denied appellant a chance to admit his divorce decree
into evidence, allowed the prosecutor to make improper and prejudicial comments
during opening and closing arguments, and allowed in evidence of appellant’s prior
conviction through witness testimony.
Generally, we consider whether the evidence of the accused’s guilt was
overwhelming when deciding whether cumulative evidence deprives a defendant of
due process. See State v. Echols, 128 Ohio App.3d 677, 700 (1st Dist.1998) (finding
cumulative error deprived appellant of a fair trial). Here, appellant admitted he sent
the email to D.M.’s place of employment and the DVPO clearly prohibited that type
of conduct; one could conclude that there was substantial evidence that appellant
committed a violation of the protection order. However, we must consider whether
the foregoing errors contributed to appellant’s conviction. We find that they did,
and even if the errors did not individually constitute cause for reversal, the
cumulative effect of those errors deprived appellant of a fair trial.
Therefore, we sustain appellant’s fourth assignment of error.
Judgment reversed. Case remanded for a new trial.
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 issue out of this court directing the
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.
________________________
MICHAEL JOHN RYAN, JUDGE
MARY J. BOYLE, J., CONCURS;
MICHELLE J. SHEEHAN, P.J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION)
MICHELLE J. SHEEHAN, P.J., CONCURRING IN JUDGMENT ONLY:
Respectfully, I concur with the judgment of the court reversing the
conviction in this case and remanding the matter for a new trial by sustaining
R.E.S.’s second and third assignments of error but write separately because I
disagree with the majority opinion’s resolution of the first and fourth assignments
of error.
In his first assignment of error, R.E.S. argues that the trial court
abused its discretion by prohibiting him from entering the divorce decree into
evidence because “it went directly to his mens rea.” R.E.S sought to introduce the
divorce decree in order to argue that he was not reckless because he believed the
divorce decree’s termination of “restraining orders” also terminated the domestic
violence protection order that was in effect.
The mens rea of the crime of violation of a protection order is
recklessness. R.C. 2919.27(A). “‘[A] “mistake of fact” is not available as a defense to
a crime requiring a mental state of recklessness.’” State v. Justice, 2024 Ohio-2574,
¶ 15 (1st Dist.), quoting State v. Parrett, 2014-Ohio-4524, ¶ 18 (12th Dist.), citing
State v. Neville,
1998 Ohio App. LEXIS 5519, *20 (7th Dist. Nov. 17, 1998)
(“Appellant was not charged with a specific intent crime as the requisite mental state
to a violation of R.C. 3734.03 is ‘recklessly.’ . . . Therefore, the trial court did not
abuse its discretion in failing to give a jury instruction as to mistake of fact.”), State
v. Snowden,
7 Ohio App.3d 358, 363 (10th Dist. 1982.) Further, “[i]t is well-settled
that the mistake-of-law defense is not recognized in Ohio.” State v. Pinkney,
36
Ohio St.3d 190, 198 (1988).
Whether R.E.S. made a mistake of law or fact by conflating the
definitions of “restraining order” and “protection order” or simply made a mistake
of fact as to the scope of the divorce decree, neither mistake is a defense to a crime
requiring a mental state of recklessness. Because of this, I would find that the trial
court did not abuse its discretion by prohibiting the introduction of the divorce
decree and would overrule the first assignment of error.
As to the majority’s resolution of the fourth assignment of error, I
would simply find the assignment to be moot in light of the resolution of the second
and third assignments of error.
