950 N.E.2d 248 (Ohio Mun. 2010), 10CRB01801, State v. Cooper

Docket Nº:10CRB01801.
Citation:950 N.E.2d 248, 163 Ohio Misc.2d 27, 2010-Ohio-6697
Opinion Judge:GRIM, Judge.
Party Name:The STATE of Ohio, Plaintiff, v. COOPER, Defendant.
Attorney:James K. Stanley, Athens City Prosecuting Attorney, for plaintiff. James A. Wallace, Athens, for defendant.
Case Date:November 23, 2010
Court:Municipal Court of Ohio
 
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Page 248

950 N.E.2d 248 (Ohio Mun. 2010)

163 Ohio Misc.2d 27, 2010-Ohio-6697

The STATE of Ohio, Plaintiff,

v.

COOPER, Defendant.

No. 10CRB01801.

Athens County Municipal Court, Ohio.

November 23, 2010

James K. Stanley, Athens City Prosecuting Attorney, for plaintiff.

Page 249

James A. Wallace, Athens, for defendant.

GRIM, Judge.

{¶ 1} This matter came on for jury trial this 18th day of November, 2010 on a charge of violating a protection order.

{¶ 2} The state of Ohio presented its evidence, including a certified copy of a civil protection order and a certificate-of-service page to that order. The certificate of service noted that a copy of the order was mailed to defendant in care of the Southeastern Ohio Regional Jail. There was testimony that defendant was incarcerated in that jail then. There was no evidence submitted, other than the proof of mailing, that defendant had actually received a copy of that order. There was no evidence presented that defendant had previously received a copy of any temporary ex parte protection order. The state did present a letter [163 Ohio Misc.2d 28] that defendant had sent to the protected person after the date the civil protection order was issued. That letter was prohibited by the terms of the civil protection order.

{¶ 3} Following the close of the state's case, defendant made a Crim.R. 29 motion for acquittal, arguing that the state could not prove the culpable mental state of recklessness without showing that defendant had been aware of the order. The state responded to that argument by resubmitting its request that the court give the jury an instruction that Civ.R. 5(B) creates a presumption that defendant received notice. Although the court had initially denied this request, it agreed to research and reconsider over the lunch recess. The court had also initially declined to grant defendant's motion to dismiss pending further research. The court encouraged both counsel to do research and submit additional arguments after the recess.

{¶ 4} The court heard further argument from both counsel after the recess. In consideration of the arguments and the court's own research, the court denied the state's request for the instruction and granted defendant's Crim.R. 29 motion for acquittal. The court explained its ruling as set forth below.

{¶ 5} The civil protection order was issued pursuant to R.C...

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