State v. YBarra

2016 Ohio 5761

• Court: Ohio Court of Appeals
• Decided: September 1, 2016
• Docket: 16 CA 16
• Status: Published

Opinion

[Cite as State v. YBarra, 2016-Ohio-5761.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : JOSE A. YBARRA : Case No. 16-CA-16 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 15 CR 680

JUDGMENT: Affirmed

DATE OF JUDGMENT: September 1, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRYAN R. MOORE MARCUS M. VAN WEY Licking County Prosecutor's Office Wolfe Van Wey & Associates, LLC 20 S. Second Street, 4th Floor 1350 W. 5th Ave., Suite 124 Newark, Ohio 43055 Columbus, Ohio 43212 Licking County, Case No. 16-CA-16 2

Baldwin, J.

{¶1} Appellant Jose A. Ybarra appeals a judgment of the Licking County

Common Pleas Court convicting him of violation of a protection order (R.C. 2919.27(A)(1),

(B)(3)), with a special finding that he was previously convicted of violating a protection

order. Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} Appellant’s ex-wife obtained a civil protection order in 2013, naming herself

and her son as protected persons, and appellant as the respondent. The protection order

was effective from October 15, 2013 until October 9, 2018. Appellant was prohibited from

initiating contact with his ex-wife and son, including via writing. He was also precluded

from attempting to cause a third party to initiate contact on his behalf.

{¶3} Appellant was previously convicted of violating a protection order in 2014.

He was incarcerated from April 23, 2015 to November 30, 2015. While incarcerated, he

sent a letter to a neighbor, asking him to give the envelope to appellant’s son. The

neighbor placed the envelope at Mrs. Ybarra’s door. Upon finding the envelope, Mrs.

Ybarra knew it was from appellant because “Ybarra” was written at the top of the return

address. She delivered the envelope to the Heath Police Department.

{¶4} Appellant was indicted by the Licking County Grand Jury with one count of

violation of a protection order, with a specification that he had previously been convicted

of or pled guilty to violating a protection order. Following jury trial, he was convicted and

sentenced to one year incarceration. Licking County, Case No. 16-CA-16 3

{¶5} Appellant assigns two errors:

{¶6} “I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO

SUPPORT APPELLANT’S CONVICTION.

{¶7} “II. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29.”

I., II.

{¶8} In both assignments of error, appellant argues that the conviction was not

supported by sufficient evidence. He specifically argues that while the State proved that

he was served with a copy of the full protection order, the State did not prove that he was

served with notice of the full hearing on the protection order.

{¶9} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶10} Appellant was convicted of violating R.C. 2919.27(A)(1), which provides

that no person shall recklessly violate the terms of a protection order issued pursuant to

R.C. 3113.31. R.C. 3113.31(D)(2)(a) requires a court that issues an ex parte order to

schedule a full hearing and to give the respondent notice and an opportunity to be heard

at the full hearing. Appellant alleges that the State did not prove that he received notice

of the full hearing as required by R.C. 3113.31(D)(2)(a), and that therefore the State failed

to prove the protection order was issued in accordance with R.C. 3113.31. Licking County, Case No. 16-CA-16 4

{¶11} Appellant’s challenge is a collateral attack on the underlying protection

order. The order remained in full force and effect at the time he violated the order, as he

had not mounted a successful attack on the order in either the trial court or this court on

the basis that he did not receive notice of the full hearing.

{¶12} In City of Reynoldsburg v. Eichenberger, 5th Dist. Licking No. CA-3492,

1990 WL 52467 (April 18, 1990), the appellant challenged his conviction for violating a

protection order on the basis that the underlying order was void because the trial court

did not follow the statute in issuing the order. We rejected his argument, holding that the

appellant could not prevail after he deliberately disobeyed the order, even if we

subsequently found the order to be invalid. “An order of the court must be obeyed unless

and until a court finds it is invalid or rescinds it.” Id., citing In re White, 60 Ohio App. 2d

62 (1978); U.S. Mine Workers of America, 330 U.S. 258 (1947). We have further held

that service of a temporary protection order is not an element of the offense as defined

by R.C. 2919.27(A), where the appellant was aware or should have been aware that his

conduct was prohibited by a civil protection order, citing Eichenberger, supra. State v.

Hall, 5th Dist. Delaware No. 12CAA030017, 12CAA030018, 12CAA030019, 2013-Ohio-

660, ¶23, 30-32.

{¶13} Appellant was served with the full protection order and therefore was not at

liberty to disobey the order on the basis that he had not been served with notice of the

underlying hearing. Until the order was successfully attacked on the basis of lack of

service of notice of the hearing, the protection order was valid and appellant was required

to obey the order. Licking County, Case No. 16-CA-16 5

{¶14} The first and second assignments of error are overruled. The judgment of

the Licking County Common Pleas Court is affirmed. Costs are assessed to appellant.

By: Baldwin, J.

Farmer, P.J. and

Gwin, J. concur.