State v. T.K. , 2019 Ohio 1967 ( 2019 )

[Cite as State v. T.K., 2019-Ohio-1967.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-522
v. : (M.C. No. 17CRB-19451)
T.K., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 21, 2019
On brief: Zach Klein, City Attorney, Lara N. Baker and
Melanie R. Tobias, for appellee. Argued: Melanie R. Tobias.
On brief: Jeremy A. Roth, for appellant. Argued: Jeremy A.
Roth.
APPEAL from the Franklin County Municipal Court
BRUNNER, J.
{¶ 1} Defendant-appellant, T.K., appeals a judgment of the Franklin County
Municipal Court entered on June 12, 2018, sentencing him to a suspended sentence of 180
days following a jury trial on the charge that T.K. violated a civil protection order. The trial
court erred when it permitted a sheriff's deputy to testify regarding usual and appropriate
conduct of pro se litigants outside protection order hearings but refused, on relevance
grounds, to take testimony on the same subject from a knowledgeable witness who sought
to testify on behalf of the defendant. Accordingly, we reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} After being in a relationship with T.K. for several years, on September 8,
2017, petitioner L.M., obtained an ex parte civil protection order against respondent T.K.
(Mar. 13, 2018 Tr. at 99-101, filed Aug. 7, 2018; State's Ex. 1 at 1.) Among other things, the
order required that T.K. not be present within 500 feet of L.M. and that he not initiate or
No. 18AP-522 2
have any contact with her. (State's Ex. 1 at 2.) The order provided that a full hearing on the
matter and any other issues raised by the petition would be held before a judge or
magistrate on September 13, 2017 in a courtroom on the third floor of the Franklin County
Court of Common Pleas. Id. at 4.
{¶ 3} It is apparently undisputed that T.K. did not contact L.M. at any time prior to
seeing her in the courthouse on September 13. However, L.M. testified at a trial in the
misdemeanor criminal case now being appealed, that on September 13, 2017, she came to
the courthouse and sat outside the designated courtroom in the hallway. (Tr. at 101-02.)
As she waited outside the courtroom, T.K. approached and asked if she would drop the
matter because he was going to lose his job if she persisted. (Tr. at 103.) She responded
that he wasn't supposed to be talking to her and needed to go away. Id. He persisted and,
according to L.M., became panicky and angry. (Tr. at 103-05.) An unidentified woman
with whom L.M. had been chatting, notified a sheriff's deputy of the incident, and the
deputy told T.K. to desist and go sit on the other side of the courtroom entrance. (Tr. at
105-06.) After the oral confrontation, L.M. checked her phone and saw T.K. had also sent
her a text message around the same time of the oral confrontation. (Tr. at 106-07.) The
text message read:
Can we please just drop this? I'll walk away. Won't bother u
anymore. This will cost me my job in turn everything please?
(State's Ex. 2.)
{¶ 4} When the hearing was called, due to the congested nature of the court's
docket, the magistrate informed L.M. and T.K. that the case would be continued. (Tr. at
108-09.) L.M. then went with the sheriff's deputy to the prosecutor's office and pressed
charges for what she characterized as T.K.'s harassing conduct in the hallway prior to the
hearing. (Tr. at 109.)
{¶ 5} There is no indication in the record whether T.K. made any further attempt
to negotiate or request an end to the process other than within the context of the hearing
that was eventually held. During the next hearing on the protective order, held on
October 19, 2017, T.K. appeared pro se and began to ask L.M. to settle or drop the case, but
he was told that was not a proper line of inquiry and required to desist. (State's Ex. 4.)
{¶ 6} The criminal case initiated by L.M.'s complaint and now under appeal was
tried before a jury on March 13, 2018. At trial, L.M. testified on direct examination to the
No. 18AP-522 3
facts as set forth above. On cross-examination, L.M. admitted that she initially testified
incorrectly about the date she filed the protection order and admitted that she had actually
filed it on what she knew to be T.K.'s birthday. (Tr. at 115.) She acknowledged that both
she and T.K. litigated the protection order without an attorney and that one potential
outcome of the hearing would have been to negotiate a dismissal of the protection order
litigation. (Tr. at 115-16.) L.M. testified that she was under the impression that such
negotiations could only occur in the courtroom. (Tr. at 117.)
{¶ 7} In addition to L.M., the State called Sheriff's Deputy Jeff Rose, who was the
deputy who witnessed the interaction between L.M. and T.K. at the time of the first hearing.
(Tr. at 125.) Rose was permitted to testify that persons in court on protection orders are
allowed to be within an otherwise prohibited distance of one another but they nonetheless
have to stay away from each other. (Tr. at 128-29.) That is, he acknowledged the area in
which the persons sit before the hearing happens does not permit opposing litigants to be
more than 500 feet from each other. (Tr. at 138.) He was allowed to opine that persons in
court on protection orders should not negotiate in the hallway prior to their cases being
called because such discussions are futile. (Tr. at 129.) He elaborated, in his view, the
hearing was not mandatory to attend because it was a civil matter, but said that if litigants
do attend (and are therefore within 500 feet of each other) charges are not typically filed.
(Tr. at 142-43.) He confirmed that on September 13, an unknown woman notified him
there was an issue in the hall. (Tr. at 135-36.) He therefore approached T.K. and told him
he should not be communicating with L.M. or have anyone do so on his behalf. (Tr. at 136.)
{¶ 8} At T.K.'s criminal trial, the defense attempted to call an attorney, Daniel
Fletcher, to testify that, in his 33 years of experience litigating in Franklin County, parties
to protection orders frequently communicate with each other directly in the hallway when
they are not represented by attorneys in order to settle their differences before going
through with a full hearing. (Tr. at 161, 164.) Had he been allowed to testify, Fletcher would
have testified that, as an attorney acting on behalf of a party to a protection order, he had
never been limited in where or when he could negotiate on his client's behalf and that it is
common practice to negotiate out of the courtroom before hearings. (Tr. at 160.) The trial
court refused to permit defendant to present this testimony to the jury—it was proffered—
holding it was irrelevant. (Tr. at 153-58.)
No. 18AP-522 4
{¶ 9} Then the defense requested that one of two proposed instructions be given to
the jury:
If you find that the defendants alleged actions of
communicating with XX and being within XXX were done
within the scope of the defendant's actions of complying with a
valid court order where the defendant was summoned to
appear and to be heard on the issue of a protection order, you
must find the defendant not guilty as it is a complete defense to
the charge if the accused was acting within the scope of a valid
court order that allowed him to appear in court and participate
in the proceedings.
[OR]
If you believe that the defendant was misled by the actions of
the state into believing that the terms of the temporary
protection order did not apply in the courtroom, then you must
find the defendant not guilty. The defendant cannot be
convicted for exercising a privilege that the state misled him to
believe was allowable.
The defendant has the burden of proving that he was thus
misled by the state by the preponderance of the evidence.
Preponderance of the evidence is the greater weight of the
evidence; that is, evidence that you believe because it
outweighs in your mind the evidence opposed to it. A
preponderance means evidence that is more probable, more
persuasive, or of greater probative value. You must weigh the
quality of the evidence.
CONSIDER ALL EVIDENCE. In deciding whether an issue has
been proved by a preponderance of the evidence, you should
consider all of the evidence, regardless of who produced it.
(Mar. 14, 2018 Def.'s Req. for Instructions at 1-2.) The trial court declined to give either of
the proposed instructions on the grounds that the facts presented at trial did not support
them. (Tr. at 169.)
{¶ 10} The jury found T.K. guilty on March 15, 2018. (Mar. 15, 2018 Verdict Form.)
The trial court sentenced T.K. to 180 days in jail, took account of the 2 days he served when
arrested for the offense, and suspended the remaining 178 days. (June 12, 2018 Jgmt.
Entry.) The trial court stayed execution of the sentence pending this appeal. (June 12, 2018
Stay Entry.)
No. 18AP-522 5
II. ASSIGNMENTS OF ERROR
{¶ 11} T.K. assigns four errors for review:
1. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
PERMITTING ATTORNEY FLETCHER TO TESTIFY RULING
THAT HIS TESTIMONY WOULD NOT BE RELEVANT IN
VIOLATION OF OHIO RULES OF EVIDENCE 401 & 402.
2. APPELLANT DID NOT RECEIVE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS
UNDER THE OHIO CONSTITUTION AND THE 14TH AND
6TH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
3. THE TRIAL COURT ERRED BY DENYING APPELLANT'S
REQUEST FOR JURY INSTRUCTIONS ON ESTOPPEL BY
ENTRAPMENT.
4. THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST THE DEFENDANT WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
CONVICTIONS AND WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
III. DISCUSSION
A. First Assignment of Error – Whether Fletcher's Testimony was Properly
Excluded as Irrelevant
{¶ 12} "Generally, '[t]he admission of evidence is within the discretion of the trial
court.' " Shaw v. Underwood, 10th Dist. No. 16AP-605, 2017-Ohio-845, ¶ 25, quoting
Brown v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 36, citing
Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38. Thus, the
decision to admit or exclude evidence is reviewed for abuse of discretion. Underwood at
¶ 25. Yet, "[a]lthough an abuse of discretion is typically defined as an unreasonable,
arbitrary, or unconscionable decision, we note that no court has the authority, within its
discretion, to commit an error of law." (Citations omitted.) State v. Chandler, 10th Dist.
No. 13AP-452, 2013-Ohio-4671, ¶ 8. "We therefore review the decision of the trial court
for abuse of discretion with the understanding that if the trial court erred on a question
of law, even with respect to an evidentiary issue, that such is an abuse of discretion."
Pontius v. Riverside Radiology & Interventional Assocs., 10th Dist. No. 15AP-906, 2016-
Ohio-1515, ¶ 15.
No. 18AP-522 6
{¶ 13} Evid.R. 401 defines relevant evidence as "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." Relevant evidence
is generally admissible (except as elsewhere provided by law) and irrelevant evidence is not
admissible. Evid.R. 402.
{¶ 14} T.K. was tried for "recklessly" violating the terms of the ex parte protection
order. R.C. 2919.27(A)(2).1 The ex parte order provided in part that T.K. not be present
within 500 feet of L.M. and he not initiate or have any contact with her. (State's Ex. 1 at 2.)
It was undisputed at trial that, by appearing at the hearing set for the protection order on
September 13, 2017 and by talking to L.M. (in person and by text message) in the hall
outside the courtroom, T.K. violated the literal terms of the ex parte protection order. The
disputed question at trial was whether he did so with the necessary criminal intent.
{¶ 15} Therefore, a fact (and perhaps the fact) that was of consequence to the
determination of this action, was T.K.'s intent when he attended the hearing and
approached L.M. outside the courtroom at the first continued hearing. Was his presence
and contact with her a furtherance of the allegedly harassing conduct that resulted in the
protection order being granted in the first place? Or was his presence and contact with her
a necessary incident of his pro se appearance at a court hearing? We do not offer an opinion
on these questions as such matters were for a jury to decide. We do, however, find that the
jury should have heard testimony on what is normal behavior for parties to protection
orders when deciding what mental state to impute to T.K., as offered by both parties.
{¶ 16} Rose was permitted to testify, as Fletcher would have done, to the general
conduct of such hearings and appropriate pro se behavior in that context. (Tr. at 128-29,
138-39, 142-43.) Fletcher was not. Reviewing the trial court's ruling according to an abuse
of discretion standard, we agree with the trial court that this type of testimony was relevant.
1 "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). In cases such as this where "recklessness suffices to establish an element
of an offense, then knowledge or purpose is also sufficient culpability for such element." R.C. 2901.22(E). "A
person acts purposely when it is the person's specific intention to cause a certain result, or, when the gist of
the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender's specific intention to engage in conduct of that nature." R.C.
2901.22(A). "A person acts knowingly, regardless of purpose, when the person is aware that the person's
conduct will probably cause a certain result or will probably be of a certain nature." R.C. 2901.22(B).
No. 18AP-522 7
It placed T.K.'s actions in context in order to aid the jury in determining what T.K.'s mental
state was when he spoke with L.M. outside the courtroom before the first hearing date.
Rose testified, for example, that most people appear pro se for protection order hearings.
(Tr. at 138-39.) He agreed that they are not generally prosecuted merely for being near one
another at the hearings and in the hallway prior to the hearings. (Tr. at 128-29, 138, 143.)
He opined that they do not generally negotiate their cases with each other in the hallway
because "they shouldn't" and there is "no resolution that obviously is going to work." (Tr.
at 129.) He also testified that, in his opinion, it was not mandatory for parties to protection
order proceedings to appear for court.2 (Tr. at 142.) Yet, the defense witness, an attorney
with over three decades of experience and specific knowledge of how protection order cases
transpire in the courts in Franklin County, was not permitted to offer testimony on the same
subjects, any of which could have affected how the jury adjudged Rose's testimony of what
is typical, allowable conduct incident to attending a protection order hearing. (Tr. at 152-
64.) The sole reason given by the trial court for excluding Fletcher's testimony was
relevance. (Tr. at 156.)
{¶ 17} Fletcher's proffered testimony on typical conduct in relation to protection
order hearings was just as relevant to the question of T.K.'s mental state as was Rose's, and
Fletcher should have been permitted to testify before the jury. Evid.R. 401. Given that the
trial court allowed testimony on the same subject by a prosecution witness, it was
"unreasonable" for the trial court to have declined to permit the defense witness to make a
presentation on that topic. Chandler at ¶ 8. The evidentiary ruling by the trial court was
both erroneous and unreasonable and as such was an abuse of discretion. Id.{¶ 18} Whether he was present or not when the parties' exchange took place at the
courthouse, Fletcher could not testify to T.K.'s mental state. Neither could Rose. Rose did
and could only testify as to what he observed then and generally. (Tr. at 128-29, 138-39,
142-43.) Similarly, with Fletcher's experience, his testimony would have been what he
observed generally with these types of hearings (in light of his lengthy experience in those
sorts of hearings and the many opportunities he has had to observe pro se interactions in
such matters). (Tr. at 161-64.) The jury had a right to hear this and T.K. had a right to have
2Fletcher, as an attorney, may have had a different opinion about whether it would be important for a party,
especially a defendant, to appear at a hearing to defend against a civil stalking protection order. The record
does not indicate that Rose is an attorney in addition to being a deputy sheriff.
No. 18AP-522 8
the jury hear it. It was necessary to a fair trial. The trial court prevented this from
happening on the grounds that Fletcher's testimony was irrelevant. (Tr. at 156.) If Rose's
testimony about the general context was relevant (and it surely was) then so was Fletcher's.
We find it was "unreasonable" for the trial court to have declined to permit this defense
witness to be questioned on that topic. Chandler at ¶ 8. And this is the error by which the
trial court abused its discretion.
{¶ 19} The State argues, even if the trial court abused its discretion in prohibiting
Fletcher's testimony, it was harmless error. (State's Brief at 4-5.) Crim.R. 52(A). For error
to be "harmless," it must be harmless beyond a reasonable doubt. State v. Morris, 141 Ohio
St.3d 399, 2014-Ohio-5052, ¶ 27-28. In other words, " 'the cases where imposition of
harmless error is appropriate must involve either overwhelming evidence of guilt or some
other indicia that the error did not contribute to the conviction.' " Id. at ¶ 29, quoting State
v. Rahman, 23 Ohio St.3d 146, 151 (1986); State v. Ferguson, 5 Ohio St.3d 160, 166, fn. 5
(1983). Here, the State asserts that "the testimony of Ms. L.M. and Deputy Rose established
that there was no legitimate reason for [T.K.] to engage in contact with Ms. L.M. while they
were in the hallway of the courthouse." (State's Brief at 4.) We agree on this point, but T.K.
was not permitted to offer testimony from Fletcher to challenge L.M.'s and Rose's version
of the facts or to provide evidence for the jury to determine what was T.K.'s own mental
state at the time. As we see it, the jury had little realistic option but to infer the necessary
criminal intent from T.K.'s contact with L.M. outside the courthouse hearing before the first
scheduled date. Accordingly, we cannot find beyond a reasonable doubt that the exclusion
of Fletcher's testimony was harmless.
{¶ 20} The dissent challenges this, asserting "overwhelming proof" of T.K.'s guilt.
(Dissent at ¶ 49.) The dissent states that, Rose "told T.K. to stay away from L.M. T.K. still
did not do so. Second, after receiving the September 8, 2017 order, T.K. still elected to send
a text message to L.M. the day of the hearing." Id. We note that L.M. herself testified, "I
don't know when the text message came in to when he approached me. I don't know." (Tr.
at 118.) The dissent acknowledges that the timeline is not clear in the record: "T.K. texted
L.M. at some point that morning." (Dissent at ¶ 34.) The dissent's contention that T.K.
refused to stay away from L.M. after being told to do so by Rose is simply not in the record.
L.M. testified that T.K.'s response to Rose's instruction was to "turn[] around and look[]
No. 18AP-522 9
out the window." (Tr. at 106.) At no time did L.M. testify or suggest that T.K. approached
her or spoke to her after Rose told him not to. This does not suffice as "overwhelming proof"
of T.K.'s guilt of the crime of which he was convicted. In reviewing what the trial court did
according to the appellant's assignments of error, the trial court's ruling on the admissibility
of Fletcher's testimony is an abuse of discretion.
{¶ 21} T.K.'s first assignment of error is sustained.
B. Second Assignment of Error – Whether T.K. Received Ineffective
Assistance of Counsel
{¶ 22} As we have sustained T.K.'s first assignment of error, requiring reversal and
remand for a new trial, T.K.'s claim that he received ineffective assistance in his first trial is
moot and considered no further.
C. Third Assignment of Error – Whether the Trial Court Erred in Refusing
to Give the Instructions Requested by the Defense
{¶ 23} We have sustained T.K.'s first assignment of error and that finding requires
that we reverse and remand for a new trial. On remand, if a new trial proceeds, different
evidence justifying different instructions may be presented. Accordingly, at this point, we
consider the issue regarding jury instructions to be unripe. See State ex rel. Elyria Foundry
Co. v. Indus. Comm., 82 Ohio St.3d 88, 89 (1998).
D. Fourth Assignment of Error – Whether T.K.'s Conviction was
Insufficiently Supported or Against the Manifest Weight of the Evidence
{¶ 24} T.K.'s fourth assignment of error argues, in part, that the evidence
insufficiently supported his conviction. Sufficiency is:
"[A] term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the
evidence is legally sufficient to support the jury verdict as a
matter of law." * * * In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is
a question of law.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, quoting State v. Thompkins,
78 Ohio St.3d 380, 386 (1997); Black's Law Dictionary 1433 (6th Ed.1990). "In reviewing
a record for sufficiency, '[t]he 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. Monroe, 105
No. 18AP-522 10
Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus.
{¶ 25} Although we have sustained assignments of error requiring reversal and
remand for a new trial, we nonetheless address the fourth assignment of error insofar as it
challenges the sufficiency of the evidence because, if it were to be sustained, T.K. could not
be retried. That is, "the Double Jeopardy Clause does not preclude retrial of a defendant if
the reversal was grounded upon a finding that the conviction was against the weight of the
evidence. However, retrial is barred if the reversal was based upon a finding that the
evidence was legally insufficient to support the conviction." Thompkins at 387, citing Tibbs
v. Florida, 457 U.S. 31, 47 (1982). Hence, though T.K.'s other assignments of error are
rendered moot or unripe, including the part of the fourth assignment of error that argues
manifest weight, insofar as the fourth assignment of error argues sufficiency, it remains
subject to review.
{¶ 26} T.K. was convicted of "recklessly" violating the terms of the ex parte
protection order that included not being present within 500 feet of L.M. or having any
contact with her. (State's Ex. 1 at 2.) R.C. 2919.27(A)(2). L.M. testified that as she waited
outside the courtroom for the hearing on the protective order, T.K. approached and asked
if she would drop the matter because he was going to lose his job if she persisted. (Tr. at
103.) She responded that he wasn't supposed to be talking to her and needed to go away.
Id. He persisted and, according to L.M., became panicky and angry. (Tr. at 103-05.) Rose
provided a backdrop for this testimony by testifying that people who appear pro se for
protection order hearings do not generally negotiate their cases with each other in the
hallway because "they shouldn't." (Tr. at 129, 138-39.) We find that "viewing the evidence
in a light most favorable to the prosecution, a[] rational trier of fact could have found" the
requisite criminal intent that T.K. acted at least "recklessly" when he violated the express
terms of the ex parte protective order. Monroe at ¶ 47.
{¶ 27} Insofar as T.K. has argued in his fourth assignment of error that the evidence
was insufficient to sustain his conviction, that portion of the assignment of error is
overruled. As for manifest weight argued in his fourth assignment of error, that issue is
moot because the trial court's decision is reversed and the matter remanded for a new trial.
No. 18AP-522 11
IV. CONCLUSION
{¶ 28} The trial court abused its discretion when it permitted a sheriff's deputy to
testify regarding usual and appropriate conduct of pro se litigants outside protection order
hearings but refused to take testimony on the same subject from a lawyer with more than
three decades of relevant experience who would have testified to matters relevant to T.K.'s
likely mental state, an element of the crime of which he was convicted. We sustain T.K.'s
first assignment of error. Because resolution of that issue requires remand for further
proceedings and possibly a new trial, T.K.'s second, third, and part of his fourth (relating to
manifest weight of the evidence) assignments of error are rendered moot or unripe. To the
extent T.K.'s fourth assignment of error argues his conviction was supported by insufficient
evidence, it is overruled. The judgment of the Franklin County Municipal Court is reversed
and cause remanded.
Judgment reversed and cause remanded.
HANDWORK, J., concurs.
BEATTY BLUNT, J. dissents.
HANDWORK, J., retired, formerly of the Sixth Appellate
District, assigned to active duty under authority of Ohio
Constitution, Article IV, Section 6(C).
BEATTY BLUNT, J., dissenting.
{¶ 29} Because I would find that the municipal court did not abuse its discretion in
excluding the testimony of an attorney who was not present on the day in focus, who had
never met petitioner, L.M., or respondent, T.K., each of whom proceeded pro se, and who
had no personal knowledge of the underlying events, I respectfully dissent. My additional
requisite analysis yields a determination overruling the remaining assignments of error and
affirming the municipal court.
I. FACTUAL & PROCEDURAL BACKGROUND
{¶ 30} A thorough presentation of the factual and procedural background is
necessary to establish what the record before us shows.
{¶ 31} L.M. sought and obtained an ex parte civil stalking order under R.C. 2903.214
against T.K. on September 8, 2017 ("order"). I pause here to highlight two points of which
the majority notes. First, the majority comments that L.M. and T.K. had a relationship for
No. 18AP-522 12
several years before the order. (Majority opinion at ¶ 2.) Second, the majority remarks that
L.M.'s order was obtained on T.K.'s birthday. Id. ¶ 6. For certain, neither the length of an
underlying relationship nor the timing of the civil petition is of material import to the basic
issue before the municipal court—that is, whether the evidence showed that T.K. recklessly
violated the order. R.C. 2919.27(A).
{¶ 32} The order provided that T.K.:
SHALL NOT INITIATE OR HAVE ANY CONTACT with
[L.M.] * * *. Contact includes, but is not limited to, landline,
cordless, cellular or digital telephone; text; * * * or
communications by any other means directly or through
another person. [T.K.] may not violate this Order even with
the permission of [L.M.].
(Emphasis sic.) (State's Ex. 1 at p. 2) The order also required T.K. to stay 500 feet away
from L.M. Id. The order, which was served on T.K. the same day it was issued, further
noted it remained in effect until October 10, 2017. Id. at 3; see also State's Ex. 5. The order
additionally set the matter for a hearing on September 13, 2017. (State's Ex. 1 at p. 4); see
also State's Ex. 5.
{¶ 33} T.K. and L.M. both appeared for the September 13, 2017 hearing at the
common pleas courthouse. (Mar. 13, 2018 Tr. at 102.) The hallway outside the courtroom
had clearly marked, separate areas for petitioners and respondents to wait for their hearing.
Id. at 102, 127-29, 142, 143. Notwithstanding the plain posted signs separating the parties
and the order's clear no communication directive, T.K. approached L.M. in the petitioner
area and asked her to drop the matter. Id. at 103, 120. L.M. told him that he was not
supposed to talk to her and to go away. Id. At that point, T.K. started to leave, but he then
returned to where L.M. was sitting. Id. He told her she needed to dismiss the case or he
would lose his job. Id. He then became angry, began yelling and sat down on the bench
next to L.M. Id. at 104. At that point, a woman sitting on the other side of L.M. got Deputy
Jeff Rose, the deputy assigned to the courtroom that day. Id. at 105, 126, 135. Rose said the
woman appeared to have "a sense of urgency * * * like something was the matter." Id. at
135. Rose told T.K. to return to the respondents' area and further directed T.K. not to have
any additional communication with L.M. Id. at 106, 136.
{¶ 34} Despite the no contact order, T.K. texted L.M. at some point that morning.
Id. at 106, 118; see also State's Exs. 2, 3. In the text, he repeated his request that L.M. stop
No. 18AP-522 13
the case because he would lose his job and "everything." (Tr. at 106); see also State's Exs.
2, 3. Ultimately, the hearing did not go forward, but L.M. filed a complaint in Franklin
County Municipal Court asserting that T.K. violated the order and therefore R.C.
2919.27(A)(1) by talking to her and sending the text message in the hallway of the
courtroom the day of the hearing. (Tr. 121, 122.) Specifically, the complaint provides T.K.:
[D]id recklessly violate the terms of a protection order issued
or consent agreement approved pursuant to section 2919.26 or
3113.31 of the Revised Code. To wit: T.K. approached L.M. and
sent her a text message on September 13, 2017 in violation of
the protection order granted in case number 17 CV 8079 by
Judge Serrott and served on T.K. on September 10, 2017.
(Sept. 14, 2017 Compl.) Noticeably absent from the complaint is any charge that T.K.
violated the order's requirement that he stay 500 feet away from L.M. by merely attending
the hearing.
{¶ 35} The matter proceeded to a jury trial in municipal court. There, L.M. testified
as noted above. Rose testified as well, and he identified T.K. as a person Rose saw in the
hallway on September 13, 2017. (Tr. at 126, 130, 136.) Rose said he was there for security
reasons because problems among civil protection litigants typically occurred at least once
a week. Id. at 127. For that reason, the hallway outside the courtroom has clearly marked
signs designating different areas for petitioners and respondents. Id. at 128, 142.
{¶ 36} Rose testified that petitioners and respondents do not engage in settlement
discussions in the hallway because "[t]hey shouldn't." Id. at 129. He clarified that once the
parties obtain court relief, "there is no resolution that obviously is going to work. So the
magistrate has to get involved to try to referee it and come to an agreement or have a
hearing and then base their decision off what she's heard." Id. He testified that during the
hearing, the magistrate typically provides the parties with an option to reach an agreement.
Id. at 130. He continued by stating that "95 percent" of civil protection order parties do not
have counsel and that "[v]ery few" attorneys appear at protection hearings. Id. at 139.
{¶ 37} T.K. did not take the stand. Id. at 165. He did attempt to have Attorney
Daniel Fletcher testify on his behalf. Id. at 152, 161. Fletcher was not present at the
September 13, 2017 hearing. Id. at 161, 163. Fletcher was not in the hallway that day and
thus lacked personal knowledge of what transpired in the hallway. Id. at 161, 163. Fletcher
did not know either T.K. or L.M. Id. at 163. In fact, Fletcher had never spoken to either
No. 18AP-522 14
T.K. or L.M. Id. at 161, 163. While Fletcher was an attorney, both T.K. and L.M. proceeded
pro se, like "95 percent" of protection order litigants. Id. at 139, 163. For those reasons, the
trial court sustained the State's objection to Fletcher's testimony on relevance grounds. Id.
at 155-59.
{¶ 38} T.K. proffered Fletcher's testimony. Id. at 159. Fletcher said he was a lawyer
whom had represented both sides in protective order cases. Id. at 160. He testified it was
his practice when representing petitioners in such matters to approach the respondent if
they were unrepresented and try to resolve the issue. Id. He said in his experience, he often
saw parties to protective order cases communicate directly when they were both pro se. Id.
at 161. He said he was unaware of any charges being brought against a respondent for trying
to resolve protective order issues, but he admitted that he lacked specific knowledge as to
the cases the prosecutor's office files. Id. at 162, 163. He also admitted he lacked specific
knowledge regarding the hearing in focus. Id. at 164.
{¶ 39} After each side rested, T.K. requested an estoppel by entrapment jury
instruction. Id. at 166. Specifically, he noted that the order prohibited him from being less
than 500 feet away from L.M. but that the hallway outside the common pleas' courtroom
was less than 500 feet long. Id. at 165; see also T.K.'s Brief at 17-19. The municipal court
denied T.K.'s motion, reasoning that there was no evidence of direction by the common
pleas court to T.K. regarding approaching L.M. Id. at 169.
{¶ 40} After a three day trial, the jury found T.K. guilty of recklessly violating the
protective order under R.C. 2919.27(A)(1).3 Id. at 198. The municipal court judge
sentenced T.K. to 180 days in jail, with 178 days being suspended and 2 days of jail time
being credited. (June 12, 2018 Entry.) The municipal court also ordered that the civil
protection order remain in effect. Id. The same court thereafter stayed that sentence
pending resolution of this appeal.
3The complaint states the charge is premised on R.C. 2919.27(A)(1). That section provides: "No person shall
recklessly violate the terms of any of the following: (1) A protection order issued or consent agreement
approved pursuant to section 2919.26 or 3113.31 of the Revised Code." All agree the protective order in focus
was issued pursuant to section 2919.26 or 3113.31 of the Revised Code. But, the jury's verdict finds T.K. guilty
of violating R.C. 2919.27(A)(2). That section states: "No person shall recklessly violate the terms of * * * [a]
protection order issued pursuant to section 2151.34, 2903.213, or 2903.214 of the Revised Code." The
municipal court's June 12, 2018 entry, however, refers to T.K.'s violation of R.C. 2919.27(A)(1) only. Because
a "court speaks through its entries," I rely upon the June 12, 2018 entry to focus on R.C. 2919.27(A)(1).
(Citation omitted.) State v. Spain, 10th Dist. No. 10AP-319, 2011-Ohio-322, ¶ 13.
No. 18AP-522 15
II. ASSIGNMENTS OF ERROR
{¶ 41} My dissent requires me to address each of T.K.'s following assignments of
error:
A. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
PERMITTING ATTORNEY FLETCHER TO TESTIFY RULING
THAT HIS TESTIMONY WOULD NOT BE RELEVANT IN
VIOLATION OF OHIO RULES OF EVIDENCE 401 & 402.
B. T.K. DID NOT RECEIVE EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE
OHIO CONSTITUTION AND THE [FOURTEENTH] AND
[SIXTH] AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
C. THE TRIAL COURT ERRED BY DENYING [T.K.'S]
REQUEST FOR JURY INSTRUCTIONS ON ESTOPPEL BY
ENTRAPMENT.
D. THE TRIAL COURT ERRED WHEN IT ENTERED
JUDGMENT AGAINST [T.K.] WHEN THE EVIDENCE WAS
INSUFFICIENT TO SUSTAIN THE CONVICTIONS [sic] AND
WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
(T.K.'s Brief at 1.)
A. The trial court did not abuse its discretion or commit an error of law
when excluding the testimony of an individual with no personal
knowledge of the facts and whom had never met the parties involved on
relevance grounds.
{¶ 42} Under the first assignment of error, T.K. argues the trial court improperly
excluded Fletcher's testimony. The State retorts that the trial court correctly held such
testimony was inadmissible as irrelevant. I concur with the State's position, and therefore
depart from my colleagues on this assignment of error.
{¶ 43} The trial court has broad discretion in the admission or exclusion of
testimony. State v. Hill, 10th Dist. No. 81AP-707 (Mar. 9, 1982). Hence, the standard
under this claimed error is abuse of discretion. Id. An abuse of discretion is defined as an
" 'unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action that
no conscientious judge could honestly have taken.' " State v. Kirkland, 140 Ohio St.3d 73,
2014-Ohio-1966, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, ¶ 23.
"In order to have an 'abuse' in reaching such determination, the result must be so palpably
No. 18AP-522 16
and grossly violative of fact and logic that it evidences not the exercise of will but perversity
of will, not the exercise of judgment but defiance thereof, not the exercise of reason but
rather of passion or bias." (Citation omitted.) State v. Jenkins, 15 Ohio St.3d 164, 222
(1984). An abuse of discretion is therefore found only in the rare instance when the decision
is unsupported by the facts and contrary to logic. (Citation omitted.) In re Estate of Roch,
81 Ohio App.3d 161, 165 (9th Dist.1991). Importantly, when conducting the requisite
analysis, the court may not substitute its judgment for that of the trial court. Lias v.
Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 11, see also Law Offices of
Russell A. Kelm v. Selby, 10th Dist. No. 15AP-1135, 2017-Ohio-8239, ¶ 22.
{¶ 44} Evid.R. 402 establishes that evidence must be relevant to be admissible.
Evid.R. 401 defines relevant evidence as "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." Here, the key issue is whether T.K.
recklessly spoke with, and sent a text to, L.M. in violation of the order, L.M.'s stated wishes
and Rose's directive.
{¶ 45} Recklessness is defined as:
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. 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.
R.C. 2901.22(C). On the pivotal point of recklessness, the record is clear that Fletcher had
nothing admissible to offer establishing whether T.K. acted recklessly more or less
probable. As noted above, Fletcher is an attorney. His experience is therefore necessarily
limited to situations involving represented parties. But, neither T.K. nor L.M. were
represented by counsel. And, Rose testified 95 percent of protection order parties were not
represented by counsel. Fletcher further proffered that he talked to parties adverse to his
clients before protection hearings. Those individuals apparently wanted to engage in
settlement dialogue with Fletcher. Here, L.M. clearly told T.K. to leave her alone at the
hearing—she did not want to negotiate.
No. 18AP-522 17
{¶ 46} Furthermore, the general "fact" to which Fletcher would have testified was
directly contradicted by the specific testimony of L.M., who was actually present the day of
the hearing. To illustrate, while Fletcher proffered he would "often" see unrepresented
protection order parties communicating in the hallway prior to hearings, L.M. testified no
one was talking to other people in the hallway on the day of this hearing. (Tr. at 117, 161.)
She testified everyone was "[p]retty much" quiet in the hallway that day. Id.{¶ 47} In contrast to Fletcher's proffered testimony, Rose was present the day of the
hearing and saw and spoke with T.K. Rose observed T.K.'s facial expressions and body
language and personally conversed with Rose. Specifically, Rose personally instructed T.K.
to refrain from communicating with L.M. in the hallway before the hearing. Rose told T.K.
to return to the respondents' area. T.K. did not do so. Rose thus had personal knowledge
of the underlying events that could tend to make the fact of T.K.'s recklessness in repeatedly
communicating with L.M. verbally and via text in violation of the September 8, 2017 order
more or less probable. Hence, I would find it was reasonable for the trial court to exclude
the testimony of Fletcher, who had no personal knowledge of the parties or of the events in
focus, while permitting the testimony of Rose, who was personally present and personally
involved in the hallway communications with L.M. and Rose.
{¶ 48} Under these facts, I conclude that this is not the rare instance warranting
reversal under the deferential abuse of discretion standard. See State v. Fowler, 10th Dist.
No. 15AP-1111, 2017-Ohio-438, ¶ 14. The municipal court's ruling correctly excluded
Fletcher's testimony as irrelevant because it did not have the tendency to make T.K.'s
reckless mental state more or less probable. The municipal court's decision was supported
by the facts and was not an error of law. Therefore, I would affirm the trial court and
overrule T.K.'s first assignment of error.
{¶ 49} Even if the trial court incorrectly excluded Fletcher's testimony, I would find
that such a decision would be harmless error. Crim.R. 52(A) defines the doctrine of
harmless error in criminal cases by instructing that "[a]ny error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded." The court will not
reverse a judgment for improper exclusion of evidence on a basis of error that is harmless.
State v. West, 10th Dist. No. 06AP-111, 2006-Ohio-6259, ¶ 9. "[A]n error is harmless if the
jury would not have rendered a different verdict had the excluded evidence been admitted
No. 18AP-522 18
at trial." Id. In other words, "[a]n error by the trial court in excluding evidence is harmless
if such evidence would not negate the overwhelming proof of defendant's guilt." (Internal
quotations and citations omitted.) State v. Fudge, 10th Dist. No. 16AP-821, 2018-Ohio-601,
¶ 40. Fletcher's testimony would not negate the overwhelming proof of T.K.'s guilt in the
case sub judice for two key reasons. First, the order prohibited T.K. from communicating
with L.M. in any manner. T.K. was served with this order and therefore knew of this
prohibition. Regardless, he chose to leave the clearly delineated respondents' area in the
hallway and approach L.M. in the petitioners' area to ask her to drop the petition. L.M. said
no and told him to leave her alone. He did not. Instead, he started to walk away but again
returned, yelling at her. After sitting on the bench next to her, Rose told T.K. to stay away
from L.M. T.K. still did not do so. Second, after receiving the September 8, 2017 order,
T.K. still elected to send a text message to L.M. the day of the hearing. Thus, the jury could
have used the testimony of L.M. and Rose and the text itself to decide that T.K. recklessly
violated the order by repeatedly communicating with L.M. To the extent that any error
occurred in excluding Fletcher's testimony, I conclude that it was harmless due to the
overwhelming evidence of T.K.'s guilt as illustrated herein. I would, therefore, affirm the
trial court and overrule the first assignment of error.
B. The performance of T.K.'s counsel was effective and did not yield
prejudice to T.K.
{¶ 50} Having overruled the first assignment of error, I must next examine whether
T.K. received ineffective assistance of counsel at trial as he claims in his second assignment
of error. T.K. asserts his trial counsel was ineffective largely due to alleged discovery
missteps. He further alleges those errors equate to cumulative error such that reversal is
required. The State counters T.K.'s arguments in this regard are merely speculative.
Ultimately, I determine that neither ineffective assistance of counsel nor cumulative error
is present in this case.
{¶ 51} In order to succeed on a claim of ineffective assistance of counsel, T.K. must
satisfy a two-prong test. The first prong requires T.K. to demonstrate that his trial counsel's
performance was deficient. To shoe that counsel's performance was deficient, he must
show that his counsel committed errors which were " 'so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.' " State v.
Phillips, 74 Ohio St.3d 72, 84 (1995), quoting Strickland v. Washington, 466 U.S. 668, 687
No. 18AP-522 19
(1984). In this regard, T.K. "must overcome the strong presumption that [his] counsel's
conduct falls within a wide range of reasonable professional assistance." State v. Kennard,
10th Dist. No. 15AP-766, 2016-Ohio-2811, ¶ 15.
{¶ 52} If T.K. can show deficient performance, he "must next demonstrate that he
was prejudiced by the deficient performance." Id. at ¶ 14. To show prejudice, T.K. " 'must
establish there is a reasonable probability that, but for his counsel's unprofessional errors,
the result of the trial would have been different.' " Id. at ¶ 15, quoting Strickland at 694. "A
reasonable probability is one sufficient to undermine confidence in the outcome." Kennard
at ¶ 15. " 'The benchmark for judging any claim of ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial process that the trial
[court] cannot be relied on as having produced a just result.' " Id., quoting Strickland at
686.
{¶ 53} The failure to show either deficient performance or prejudice "defeats a claim
of ineffective assistance of counsel." Kennard at ¶ 14, citing State v. Bradley, 42 Ohio St.3d
136, 143 (1989). "[T]here is no reason for a court deciding an ineffective assistance claim
to approach the inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one." (Citations and quotations
omitted.) Kennard. at ¶ 15.
{¶ 54} T.K. first asserts his trial counsel was ineffective for failing to pursue
discovery in the form of the prosecutor's file for inconsistent statements and any hallway
video from the September 2017 hearing. "The reasonableness of counsel's determination
concerning the extent, method and scope of any criminal discovery necessarily depends
upon the particular facts and circumstances of each case." State v. Allen, 10th Dist. No.
02AP-862, 2003-Ohio-1114, ¶ 7. As to deficient performance, T.K. must "overcome the
presumption that, under the circumstances, the challenged [in]action might be considered
sound trial strategy." Id. Bypassing discovery in this instance could be such a strategy,
albeit an unsuccessful one. Id.{¶ 55} The record shows T.K.'s counsel competently and thoroughly crossed L.M.
and Rose at trial. Moreover, this case had straightforward facts and a single issue.
Additionally, T.K.'s counsel provided the municipal court with background information at
T.K.'s sentencing. Under these circumstances, I cannot hold that T.K.'s counsel "failed to
No. 18AP-522 20
prepare for trial or failed to exercise reasonable professional judgment." Id. at ¶ 9. For these
reasons, I would hold that T.K. fails to meet his burden of establishing that his counsel's
performance was deficient.
{¶ 56} Assuming, arguendo, that trial counsel's performance met the high standards
warranting the deficient label, I would still find that no prejudice resulted. In this regard,
T.K. simply argues that no one knows what might have been in the city's discovery packet.
But the court directs that such an argument is unpersuasive in the context of failure to
request discovery, where, as here, there is no evidence in the record as to what facts might
have been discovered. See Allen at ¶ 10, citing In re Baby Girl Doe, 149 Ohio App.3d 717,
2002-Ohio-4470, ¶ 103 (6th Dist.) In addition, T.K. fails to indicate how the outcome
would have been different if discovery had been conducted. Allen at ¶ 10. If there were
inconsistent statements of L.M. or Rose, or if there was a video showing T.K. did not
approach L.M., those would have been credibility determinations for the jury.
Consequently, I find no prejudice here.
{¶ 57} In sum, T.K., through his discovery argument, fails to establish either
deficient performance or prejudice. As such, I would hold those deficiencies defeat his
discovery ineffective counsel claim under Strickland, Phillips, Kennard and Allen.
{¶ 58} Secondly, T.K. argues trial counsel incompetently advised T.K. not to testify,
leaving the jury only with the unrebutted testimony of L.M. and Rose. The State correctly
retorts that this is speculative, as there is nothing in the record indicating his counsel so
advised. Accordingly, I would overrule this portion of the assignment of error.
{¶ 59} For his third and final contention supporting an ineffective assistance of
counsel finding, T.K. argues cumulative error. "Pursuant to the doctrine of cumulative
error, a judgment may be reversed where the cumulative effect of errors deprives a
defendant of his constitutional rights, even though the errors individually do not rise to the
level of prejudicial error." State v. Ibrahim, 10th Dist. No. 14AP-355, 2014-Ohio-5307,
¶ 36. Because none of T.K.'s grounds in support of his ineffective assistance of counsel
assignment constitute error, the cumulative effect doctrine is inapplicable here. See State
v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524, ¶ 124-25. Because T.K. failed to
establish his trial counsel's noted inactions and alleged action were deficient or lead to
No. 18AP-522 21
prejudice, I would hold cumulative error is not present and overrule the second assignment
of error.
C. The trial court did not err in declining T.K.'s request for jury
instructions on estoppel by entrapment.
{¶ 60} In the third assignment of error, T.K. asserts the order prohibited him from
being within 500 feet of L.M. Yet, T.K. notes, Rose testified that the hearing hallway was
less than 500 feet long. As such, T.K. reasons, the trial court erred in denying his motion
to include estoppel by entrapment instructions. The State responds that the omission was
proper because T.K. was not charged with violating the 500 feet provision. The State also
notes that T.K. presented no evidence establishing the common pleas court induced T.K.
into speaking with and texting, L.M. In this assignment of error, I would find the State's
arguments more persuasive.
{¶ 61} To begin, I concur with the State that the complaint does not charge T.K. with
violating the 500 feet portion of the order. Rather, the complaint explicitly alleges T.K.
recklessly violated the order by approaching L.M. and sending her the text message on
September 13, 2017. (Sept. 14, 2017 Compl.) As such, I comment that any evidence
regarding the distance prohibition was irrelevant and not properly before the municipal
court. In so noting, however, I do recognize Rose's testimony that the hallway was 500 feet
long and the order's distance requirement were both presented to the jury. Accordingly, I
will proceed to analyze the propriety of the judge's ruling on the entrapment instruction.
{¶ 62} The proper standard of review is whether the trial court's refusal to give a
requested jury instruction constituted an abuse of discretion under the facts and
circumstances of the case. State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941, ¶ 30.
I highlight the parameters of an abuse of discretion review supra.
{¶ 63} "[A] trial court has broad discretion in instructing the jury." State v. Smith,
10th Dist. No. 01AP-848, 2002 Ohio App. LEXIS 1507, *5 (Apr. 2, 2002). But, " '[t]rial
courts have the responsibility to give all jury instructions that are relevant and necessary in
order for the jury to properly weigh the evidence and perform its duty as the fact-finder.' "
Kearns at ¶ 30, quoting State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397, ¶ 33,
quoting Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 51 (10th Dist.).
Conversely, " '[i]t is well established that the trial court will not instruct the jury where there
No. 18AP-522 22
is no evidence to support an issue.' " Columbus v. Garrison, 10th Dist. No. 07AP-983,
2008-Ohio-3172, ¶ 17, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591.
{¶ 64} T.K., as the party asserting the affirmative defense of entrapment, had the
burden of establishing that defense by a preponderance of the evidence. (Citation omitted.)
Garrison at ¶ 18. Entrapment is established " 'where the criminal design originates with
the officials of the government, and they implant in the mind of an innocent person the
disposition to commit the alleged offense and induce its commission in order to
prosecute.' " Id. at ¶ 18, quoting State v. Doran, 5 Ohio St.3d 187 (1983), paragraph one of
the syllabus. The State does not have the burden to establish the defendant's predisposition
to commit the offense, because entrapment is an affirmative defense. State v. Zeune, 10th
Dist. No. 10AP-1102, 2011-Ohio-5170, ¶ 19. Therefore, T.K., as the party asserting the
affirmative entrapment defense, must present evidence supporting both that the common
pleas court induced him to violate the order by speaking with and texting L.M. at the
hearing and that he was not predisposed to so act. State v. Daniels, 10th Dist. No. 09AP-
976, 2010-Ohio-3745, ¶ 24.
{¶ 65} Put simply, the facts and circumstances of this case establish that the
municipal court did not err in excluding the instruction. That is because T.K. directs me to
no evidence in the record establishing either aspect of his burden. In this instance, it is
well-settled that the "trial court is not required to instruct a jury on an affirmative defense
until the defendant has presented sufficient evidence to warrant an instruction."
(Quotations and citations omitted.) State v. Smith, 10th Dist. No. 01AP-848, 2002-Ohio-
1479, *12. And, importantly, "entrapment is not established when government officials
merely afford opportunities or facilities for the commission of the offense." (Citation and
internal quotations omitted.) Daniels at ¶ 25.
{¶ 66} For those reasons, I would conclude that T.K. failed to sustain his burden and
that the trial court properly excluded the entrapment instruction. I would therefore
overrule T.K.'s third assignment of error.
D. The trial court correctly entered a guilty finding against T.K.
{¶ 67} T.K.'s fourth and final assignment of error alleges that the trial court's
judgment against T.K. was based on insufficient evidence and was against the manifest
No. 18AP-522 23
weight of the evidence. The State responds that the evidence was more than sufficient. On
these points, I would concur with the State and overrule this claimed error.
1. Sufficiency of the Evidence
{¶ 68} In reviewing a record for sufficiency, " '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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307(1979). Where the evidence, " 'if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt,' it is sufficient to sustain a conviction." State
v. Neil, 10th Dist. No. 14AP-981, 2016-Ohio-4762, ¶ 94, quoting Jenks at paragraph two of
the syllabus.
{¶ 69} As noted, the central issue before the jury was whether T.K. recklessly
violated the order. Recklessly is defined supra. T.K. asserts there was insufficient evidence
of his recklessness because there is no evidence that he contacted L.M.: (1) between the
order's September 7, 2017 issuance and the September 13, 2017 hearing; (2) after Rose told
him to stop speaking to L.M. at the hearing; (3) between the September 13, 2017 and
October 19, 2017 hearing; and (4) after the October 19, 2017 hearing. He asserts he was
simply attempting to negotiate with L.M. and was, at most, negligent.
{¶ 70} In contrast, the State's response relies on the presence, not the absence, of
evidence in the record. In particular, the State notes that the hallway had clearly marked
areas for petitioners and respondents. The hallway was quiet that day, and no one was
really talking. (Tr. at 117.) This would indicate that no one else was trying to "negotiate."
{¶ 71} T.K. then chose to leave his marked area and enter into the petitioners' space
to speak with L.M. She clearly indicated she did not want to speak to, or negotiate with,
him. Id. at 103. She did not talk to him about their case. Id. at 105. L.M. told T.K. to leave
her alone. Id. at 103. He did not. Instead he became aggressive, started yelling at her, and
then sat down next to her. Id. at 103-04. At that point, Rose told T.K. to return to the
respondent area and to refrain from communicating with L.M. Id. at 106, 136. T.K. did not
leave. Id. at 106. Rather, he remained seated next to L.M. Id. at 106. And, at some point
that morning, T.K. also texted L.M., asking her to drop the matter. Id. at 106-08; see also
State's Exs. 2-3.
No. 18AP-522 24
{¶ 72} The noted evidence, if believed, would clearly convince the average mind of
T.K.'s recklessness by a preponderance of the evidence. T.K. knew the order required him
to refrain from communicating with L.M. Despite that knowledge, he chose to leave the
respondent area and enter the petitioners' area to talk to, and yell at, L.M. She told him to
leave her alone. He did not. Rose told T.K. to leave L.M. alone and to return to the
petitioner's area. T.K. did not. And, T.K. sent L.M. the text during the hallway interactions.
T.K.'s speaking to L.M. and texting her clearly violate the order.
{¶ 73} To me, T.K.'s noted, uncontroverted actions more than satisfy R.C. 2901.22's
definition of recklessness. I would thus find that he acted with heedless indifference to the
consequences by disregarding a substantial and unjustifiable risk that his conduct was
likely to cause a certain result or was likely to be of a certain nature. I would conclude that,
after viewing the evidence in the light most favorable to the State, sufficient evidence was
introduced at trial to support T.K.'s conviction for recklessly violating the order.
Consequently, I would overrule this portion of the fourth assignment of error.
2. Manifest Weight
{¶ 74} The "manifest weight of the evidence standard addresses the evidence's effect
of inducing belief." (Citation omitted.) Neil at ¶ 102. When considering a manifest weight
argument, the court:
may not merely substitute its view for that of the trier of fact,
but must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses
and determine whether in resolving conflicts in the evidence,
the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed
and a new trial ordered. * * * In conducting our review of the
evidence, we are guided by the presumption that the jury, or
the trial court in a bench trial, is best able to view the
witnesses and observe their demeanor, gestures and voice
inflections, and use these observations in weighing the
credibility of the proffered testimony.
(Internal quotations and citations omitted.) Id. "Reversals of convictions as being against
the manifest weight of the evidence are reserved for exceptional cases where the evidence
weighs heavily in favor of the defendant." State v. Pilgrim, 184 Ohio App.3d 675, 693,
2009-Ohio-5357, ¶ 32 (10th Dist.), citing State v. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986).
No. 18AP-522 25
{¶ 75} This is not the exceptional case warranting reversal. As highlighted in the
immediately preceding section, the State produced strong evidence and testimony
establishing T.K. recklessly violated the order. Indeed, I cannot imagine a more clear set of
facts showing recklessness than what is present here. Accordingly, I am unable to conclude
that the jury lost its way or that the evidence weighed heavily against T.K.'s conviction. See
Neil at ¶ 103. As a result, I would overrule this section of the assignment of error and affirm
the municipal court on this last issue.
III. CONCLUSION
{¶ 76} Pursuant to my analysis as set forth above, I would respectfully overrule each
assignment of error and affirm the judgment of the Franklin County Municipal Court.