November 6, 2013
Protection Orders

by Justice Paul E. Pfeifer

Shasta Pickens and Robert L. Smith began dating in 2009. It was not a love story for the ages. Shasta described their relationship as “rocky” and marked with “altercations.” She ended it in early 2010.

Smith didn’t take the break-up well, and on April 12, 2010, Shasta filed a petition in the Franklin County Court of Common Pleas for a “stalking or sexually-oriented-offense protection order.”

The court granted the petition that day, set a mandatory full hearing date, and issued the protection order. Smith was ordered “not to be present within 500 feet” of Shasta “wherever she may be found, or any place Smith knows or should know Shasta is likely to be.”

That same day, the clerk of courts ordered the sheriff to serve a certified copy of the protection order, and to make a return of service reporting either personal service on Smith or a failure of service.

Shasta testified that after receiving the protection order, she showed it to Smith – on April 16th – and told him that he wasn’t allowed to be around her. But at that point, the sheriff had not yet served Smith with the order.

On April 17, around 11:00 a.m., Shasta heard a “bang” in her basement. She opened the basement door and saw Smith coming up the stairs. Shasta testified that Smith grabbed her from behind around her neck and put her in a headlock. He attempted to choke her as the two began to struggle. The skirmish ended when Shasta’s 14-year-old son and his friend entered the house.

Smith didn’t leave initially, but when the police arrived he tried to flee. The officers apprehended and arrested him.  He was indicted for aggravated burglary, a misdemeanor charge of violating a protection order, and resisting arrest.  Smith maintained that he had not been served with the protection order until after the incident occurred, and the state did not refute that. The jury ultimately found him guilty on all counts.

On appeal, Smith argued that without proof of service of the protection order, there was insufficient evidence to establish that at the time of the altercation he knew that there was a protection order in place. Thus, he maintained, the state failed to prove that he had “recklessly” violated the order, because according to the definition within the law, recklessness requires a perverse disregard of a known risk.

The court of appeals determined that service “of the protection order on the defendant is not an element of the crime of violating a protection order” as defined in the law. It then concluded that the evidence was sufficient to permit the jury to conclude that Smith knew of the order, knew of the risk that his conduct would violate the order, and acted recklessly by disregarding that risk.

After that, Smith’s case came before us – the Ohio Supreme Court – for a final review. Smith’s main contention was that a defendant can only be convicted of violating a protection order if that order has been lawfully served.

The “protection order law” in question states that the “court shall cause the delivery of a copy of any protection order…to the respondent, and to all law enforcement agencies that have jurisdiction to enforce the order. The court shall direct that a copy of the order be delivered to the respondent on the same day that the order is entered.” A further section of the law states that “No person shall recklessly violate the terms” of a protection order that is issued in accordance with the law.

Smith claims that he was not lawfully convicted of violating the law because the protection order was not issued in accordance with the protection order law. He argued that the order was not properly issued, because there is no evidence that the complaint and order were ever served, and no evidence that it was served before the alleged offense.

The state contended that the plain language of the law requires only proof that the defendant recklessly violated a protection order, not proof of service. And, the state noted, Shasta had made Smith aware of the order on April 16.

The state and Smith disagreed as to whether the word “delivery” as used in the language of the law presupposes “service.” The law is indeed unclear as to what is meant by the term “delivery.”  In writing the protection order law, the legislature used the words “delivery” and “delivered,” but did not define the words. Black’s Law Dictionary defines “delivery” as “the formal act of transferring something…”

We therefore concluded – by a four-to-three vote – that the law mandates that the court bring about a transfer of possession of a copy of the protection order to the respondent – meaning Smith, in this case. The law requires more than just the court’s issuing the order and ordering its delivery. It requires that the order actually be delivered.

We made this determination mindful of the importance of protection orders. As Justice Sharon L. Kennedy noted in writing the majority opinion, a violation of a properly issued protection order must not be tolerated. But we cannot ignore the defendant’s right to have the order served in conformity with the law. Without proof that service was achieved, a conviction for violating the law cannot stand.

However, as Justice Kennedy pointed out, the victim and the state often have recourse. An offender who cannot be prosecuted for conduct that would have violated the protection order had it been properly served often commits other crimes during the same incident – as Smith did in this case.

We therefore concluded that to sustain a conviction for a violation of a protection order in accordance with the protection order law, the state must establish, beyond a reasonable doubt, that it served the defendant with the order before the alleged violation. Accordingly, we reversed the court of appeals and sent the matter back to the trial court for proceedings consistent with our decision.

EDITOR'S NOTE: The case referred to is State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698. Case No. 2012-0239. Decided April 30, 2013. Majority opinion written by Justice Sharon L. Kennedy.