On April 30, 2013, the Ohio Supreme Court ruled that in order to convict a person of a protection order violation, the state has to provide evidence that the order was properly served. This majority decision was a reversal of a ruling made by the Tenth District Court of Appeals. The original case involved a woman who filed a Stalking or Sexually Oriented Offense Protection Order (SSOOPO) against a man who was stalking her.
The two were not in a relationship and the man did not have a key to her home, but the woman felt threatened enough to obtain a protection order. The terms of the order banned the man from coming within 500 feet of the woman. The protective order was issued “ex parte” which means that the Franklin County Court of Common Pleas did not have to give the man advanced notice before issuing the protection order.
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The woman obtained a copy of the order on April 12th which is the same day the county clerk of courts required a copy be served to the man. Approximately four days later, the woman showed the man a copy of the order and explained what it meant, but at that time the man still had not been served the order. The next day, the man broke into the woman’s basement and attempted to choke her.
911 was called and police arrived at the scene to arrest the man. He was then charged with aggravated burglary, violating a protection order, domestic violence and resisting arrest. It was the violation of protection order conviction that the man appealed on the grounds that the state was not able to show it served the order before the altercation occurred.
According to Justice Kennedy of the Supreme Court of Ohio,
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“Because evidence of compliance with the delivery requirement of R.C. 2903.214(F)(1) before the alleged offense is essential to establishing a violation of R.C. 2919.27(A)(2), we hold that the evidence was insufficient to sustain Smith’s conviction pursuant to R.C. 2919.27(A)(2). We make this determination mindful of the importance of protection orders. A violation of a properly issued SSOOPO must not be countenanced. However, we cannot ignore the defendant’s right to have the SSOOPO served in conformity with the law. R.C. 2903.214(F)(1) requires service upon a respondent. Without proof that service was achieved, a conviction for violating R.C. 2919.27(A)(2) cannot stand.”
Some justices maintained that proof of service of delivery should not be necessary for a conviction, but the majority ruled that, in order to substantiate a protection order violation conviction, proof of service is necessary.