[Cite as State v. Meinke , 2017-Ohio-7787.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO Appellee

v. NOLAN P. MEINKE Appellant C.A. Nos. 15CA010738 15CA010739

APPEAL FROM JUDGMENT ENTERED IN THE ELYRIA MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE Nos. 2014 CRB 1323 2014 CRB 1378
DECISION AND JOURNAL ENTRY Dated: September 25, 2017

HENSAL, Judge. {¶1} Nolan Meinke appeals his convictions for violating a protection order and domestic violence from the Elyria Munici pal Court. This Court reverses.

I. {¶2} Mr. Meinke and D.G. had a romantic re lationship beginning in 2008. They lived together and have a daughter. According to D. G., around the time of her pregnancy, Mr. Meinke developed a substance abuse problem and began acting violently. Although she ended their relationship, Mr. Meinke would not accept that it wa s over. He began following her, calling her, and texting her incessantly. D.G. testified that Mr. Meinke took things from her house when she was at work and sent her a text image from insi de her house of a shotgun along with a message that he was going to kill himself. He also banged on her windows in the middle of the night. Fearing for her safety, D.G. began staying at her parents’ house. She also obtained an ex parte2 civil protection order agains t Mr. Meinke pursuant to Re vised Code section 3113.31. Among other prohibitions, the protection order prohibited Mr. Meinke from initiating contact with D.G. including “landline, cordless, cellular or digita l telephone; text; instant messaging; fax; e-mail; voice mail; delivery service; social networking media; blogging; writings; electronic communications, or communications by any other means directly or through another person.” {¶3} According to D.G., Mr. Meinke was served with the protection order 15 days after she obtained it, while she was on vacation in Flor ida. D.G. testified that she nevertheless received numerous texts from Mr. Meinke both in Florida and after she returned to Ohio. D.G. took screen shots of some of the messages to the Elyria Police Department. Officers Jacob Webber and Christine Fortune were on duty and met w ith D.G. As a result of that meeting, Mr. Meinke was charged with domestic violence a nd violating a protection order in case number
2014CRB01323. {¶4} Still Mr. Meinke persisted in sending texts to D.G. In response to one incident, Elyria Police Officer Eric Halvorsen met with D.G. She showed Officer Halverson screen shots of Mr. Meinke’s texts and informed the office r that she had a protection order against Mr. Meinke. Officer Halvorsen testif ied that he verified with disp atch that Mr. Meinke had been served with the order and subsequently charged Mr. Meinke with violatin g a protection order in case number 2014CRB01378. {¶5} Mr. Meinke pleaded not guilty in both cases, and they proceeded to a jury trial. Following the close of the State’s evidence, Mr. Meinke moved for acquittal on the two counts of violating a protection order. He argued that the State failed to prove that he was served with the protection order. The municipal c ourt denied Mr. Meinke’s motion.3 {¶6} Mr. Meinke requested “an instruction pursuant to State v [.] Smith [,] 136 Ohio St[.]3d 1[, 2013-Ohio-1698,] that an additional elem ent to a violation of a protection order type of offense is that there be proof beyond a reasonable doubt of service of the order.” The municipal court denied the request because Mr. Meinke had not submitted a proposed instruction in writing pursuant to Crim.R. 30(A). After deli berating, the jury found Mr. Meinke guilty of both counts of violating a protection order and guilty of domestic violence. {¶7} In case number 2014CRB01323, the municipal court sentenced Mr. Meinke to 180 days in jail for violating a protection order a nd 30 days in jail for domestic violence. In case number 2014CRB01378, the court sentenced Mr. Meinke to 180 days in jail for violating a protection order. The municipa l court ordered the sentences to be served consecutively with credit for time served. Mr. Meinke has appealed, raising three assignments of error. For ease of discussion, we have rearranged the assignments of error.

II. ASSIGNMENT OF ERROR II
THERE WAS INSUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT OF VIOLATION OF A PROTECTION ORDER R.C. 2919.27 SINCE THE STATE FAILED TO PRESENT EVIDENCE THAT THE DEFENDANT WAS SERVED WITH THE PROTECTION ORDER. {¶8} In his second assignment of error, Mr. Me inke argues that there was insufficient evidence that he was served with the protection or der before he allegedly violated it. Whether a conviction is supported by sufficie nt evidence is a question of law, which we review de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to exa mine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,4 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 (1991), paragraph two of the syllabus. {¶9} The jury convicted Mr. Meinke of vi olating a protection order under Section 2919.27. That statute provides in relevant part that, “[n]o person shall recklessly violate the terms of * * * [a] protection order issued * * * pursuant to section * * * 3113.31 of the Revised Code[.]” R.C. 2919.27(A)(1). In State v. Smith , 136 Ohio St.3d 1, 2013-Ohio-1698, the Ohio Supreme Court held that “the [S ]tate must establish beyond a reas onable doubt that it served the defendant with the [protection] orde r before the alleged violation.” Id . at ¶ 20. 1 See also State v. Terrell , 2d Dist. Clark No. 2013-CA-102, 2014-Ohio-4344, ¶ 12 (applying Smith where protection order was issued pursuant to Section 3113.31). {¶10} Mr. Meinke bases his sufficiency argument on his contention that the witnesses’ testimony about service was inadmissible hearsay. Because the State cannot retry a defendant following a reversal on the sufficiency of the evidence, “the interest in the administration of justice dictates that the appellate court review the issue of sufficiency in consideration of all evidence presented by the [S]tate in its case in chief, whether such evidence was properly admitted or not.” (Emphasis added.) State v. Vanni , 9th Dist. Medina No. 08CA0023-M, 2009- Ohio-2295, ¶ 15, citing State v. Brewer , 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19. Thus, we consider all the testimony regardless of any alleged error in its admission.

1 Senate Bill 7, which take s effect on September 27, 2017, adds a new subsection to Section 2919.27 that provides it is not necessary for the State to prove that a protection order was served on the defendant if it proves that the defe ndant was shown the prot ection order or that a judge, magistrate, or law enforcement officer informed the defendant that a protection order was issued.5 {¶11} Three of the State’s witnesses testified that Mr. Meinke was served before the violations, which allegedly occurred between May 4 and May 9, 2014. D.G. testified that, although she had been receiving texts for some time, Mr. Meinke “wasn’t served with [the protection order] until April 18th [2014].” Officer Webber testified that, when D.G. was at the police station on May 5, 2014, “[his] partner, [O fficer] Fortune, at the time ended up contacting dispatch and confirming that the [protection orde r] was served[.]” When asked whether Officer Fortune had relayed to him that the protection order had been served, Officer Webber responded affirmatively. Finally, Officer Halvorsen testified that he called dispatch regarding the protection order and determined “04-18-14 is when it was served.” He further explained that dispatch “verified there was a paper copy on station in a three-ring binder they keep them in with the defendant’s signature on it that he accepted it.” Viewing this testimony in a light most favorable to the prosecution, a rational juror coul d find that Mr. Meinke was served with the protection order prior to his charged violations. {¶12} Mr. Meinke also argues that the State must prove that service was made in accordance with the Civil Rules and “[a] certified copy of the return would be irrefutable evidence of proper service and of this element.” The State responds that this argument goes beyond the holding in Smith which requires evidence that the defendant was served, not how he was served. We need not decide this issue because the evidence in this case was sufficient to establish that Mr. Meinke was served in compliance with the Civil Rules. {¶13} The State is not required to present “irrefutable evidence” to overcome a sufficiency challenge. Rather, “the relevant i nquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rationa l trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jenks , 61 Ohio St.3d 259, at6 paragraph two of the syllabus. Moreover, while documentary evidence may be one way to prove service, testimony may also be used. See State v. Johnson , 6th Dist. Wood Nos. WD-13-008, WD-13-009, 2014-Ohio-2435, ¶ 14 (evidence was insuffi cient as there was neither documentary evidence nor testimony). {¶14} Service of a civil protection order is gove rned by Civil Rule 65.1(C). In relevant part, the rule provides: “Initial service, and service of any ex parte protection order that is entered, shall be made in accordance with the pr ovisions for personal service of process within this state under Civ.R. 4.1(B) * * *.” Civ.R. 65.1(C )(2). Officer Halvorsen testified that “the defendant’s signature” was on the protection order, indicating that “he accepted it.” From this testimony, a rational juror could find that Mr. Meinke was served personally. Thus, the State presented sufficient evidence that Mr. Meinke was served in compliance with Civ.R. 65.1(C). Mr. Meinke’s second assignme nt of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON ALL THE ELEMENTS OF VIOLATING A PROTECTION ORDER R.C. 2919.27. {¶15} In his first assignment of error, Mr. Mei nke argues that his convictions should be reversed because the municipal court failed to instruct the jury that service of the protection order was an element of the offense of viola ting a protection order. “As a general rule, a defendant is entitled to have the jury instructed on all elements that must be proved to establish the crime with which he is charged.” State v. Adams , 62 Ohio St.2d 151, 153 (1980). Following Smith , service of a protection order, “antecedent to th e alleged violation, is an essential element that the [S]tate must prove” to establish a violation of R.C. 2919.27. Johnson at ¶ 13, citing Smith , 136 Ohio St.3d 1, 2013-Ohio-1698, at syllabus.7 {¶16} In the present matter, the municipal court did not provide an instruction regarding service of the protection order. The State argues that any error was harmless, however, because the evidence regarding service was substantial and undisputed. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not aff ect substantial rights shall be disregarded.”). {¶17} Mr. Meinke argues that this situation is not subject to a harmless error analysis because the omitted instruction was for an element of the offense. In support of his argument, he directs our attention to Hoover v. Garfield Hts. Mun. Court , 802 F.2d 168 (6th Cir.1986). In

Hoover , a federal circuit court reviewing a habeas co rpus action found that the failure to instruct on an essential element of the crime was a constitutional error to which a harmless-error analysis did not apply. Id. at 178. {¶18} Since Hoover was decided, however, the United States Supreme Court has found errors “to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of

cases.’” Neder v. United States , 527 U.S. 1, 8 (1999), quoting Johnson v. United States , 520 U.S. 461, 468 (1997). In Neder , the Court noted that “a jury instruction that omits an element of the offense * * * differs markedly from the consti tutional violations [the United States Supreme Court has] found to defy harmless-error review.” Neder at 8. The Court continued: “[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unr eliable vehicle for determining guilt or innocence.” (Emphasis sic.) Id. at 9. It concluded “that the omission of an el ement [from the jury instructions] is subject to harmless-error analysis[.]” Id

. at 10. {¶19} Similarly, the Ohio Supreme Court has held that the failure to instruct the jury on all of the elements of an offense is not a structural error. State v. Wamsley , 117 Ohio St.3d 388, 2008-Ohio-1195, ¶ 1. In Wamsley , the Court noted that there are two types of constitutional8 errors that can occur in a criminal proceeding – trial errors and structural errors. Id

. at ¶ 15, citing Arizona v. Fulminante , 449 U.S. 279, 306-312 (1991). While structural errors are per se cause for reversal, trial errors are reviewable for harmless error. Id. It held that the trial court’s failure to instruct the jury regarding the culpable mental state as well as “the elements required to establish the underlying offense of assault” did not rise to the level of structural error. Id

. at ¶ 17,

24. {¶20} The general test for determining whether a constitutional error is harmless is “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Neder at 15, quoting Chapman v. California , 386 U.S. 18, 24 (1967). In the specific situation where the trial court has failed to instruct the jury as to all the elements of an offense, the error is harmless if the “o mitted element is supported by uncontroverted evidence[.]” Id . at 18. In adopting that standard for jury instructions that omit elements of an offense, the Supreme Court reasoned that “this approach reaches an appropriate balance between ‘society’s interest in punishing the guilty [and] the method by which decisions of guilt are to be made.’” (Alteration sic.) Id ., quoting Connecticut v. Johnson , 460 U.S. 73, 86 (1983). {¶21} The evidence regarding whether Mr. Meinke was properly served with the protection order was not uncontroverted. Mr. Meinke challenged the witnesses’ testimony on that issue both on cross-examination and during his closing argument. Because the jury instructions omitted the element of service, the jury never had to assess the credibility of the challenged testimony. {¶22} In addition, the evidence establishing that Mr. Meinke was properly served before he allegedly committed the charged offenses was not overwhelming. The State only submitted the hearsay testimony of D.G. and the officers who received her complaints. The State also did9 not submit the copy of the protection order that Officer Halvorsen referenced that allegedly contained Mr. Meinke’s signature. {¶23} Accordingly, upon review of the record, we cannot conclude that it is beyond a reasonable doubt that the jury would have found the service element was met if the court had given the appropriate instructi on. Mr. Meinke’s first assignment of error is sustained. Assignment of Error Number Three
THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES FOR DOMESTIC VIOLENCE R.C. 2919.25(C) AND FOR VIOLATION OF A PROTECTIVE ORDER SINCE THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT. {¶24} In his third assignment of error, Mr. Meinke argues that the offenses of domestic violence and violating a protection order in case number 2014CRB01323 were allied offenses of similar import. In light of our determination of Mr. Meinke’s first assignment of error, we conclude that this issue is moot, and it is overruled on that basis. App.R. 12(A)(1)(c).

III. {¶25} Mr. Meinke’s second and third assignment s of error are overruled. His first assignment of error is sustained. The judgment of the Elyria Municipal Court is reversed, and this matter is remanded for further proceedings consistent with this decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Elyria Municipal Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27.10 Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

CANNON, J. CONCURS. CARR, P. J. CONCURRING IN PART, AND DISSENTING IN PART. {¶26} I agree with the majority opinion that Mr . Meinke’s convictions for violating a protection order were supported by sufficient eviden ce. However, I would find that the failure to instruct the jury on service of the protection order was harmless error. {¶27} The majority finds that the evidence regarding service was not uncontroverted because Mr. Meinke challenged it on cross-examination and during his closing argument. “It is axiomatic that ‘statement s made by counsel in opening statem ents and closing arguments are not evidence.’” State v. Carr , 9th Dist. Summit No. 26661, 2014-Ohio-806, ¶ 16, quoting State v. Frazier , 73 Ohio St.3d 323, 338 (1995). {¶28} While D.G. and Officer Webber were briefly cross-examined regarding service, their testimony on cross-examination did not negate or contradict their testimony on direct11

examination. The third witness who testified regarding service, Officer Halvorsen, was not cross-examined on that issue. This case is unlike Smith , wherein the unrefuted evidence was that the defendant was not served the protecti on order until after his alleged violation. State v. Smith , 136 Ohio St.3d 1, 2013-Ohio-1698, ¶ 8. In the presen t case, the jury was presented with three witnesses who testified consistently that they took efforts to confirm, and in fact did confirm, that Mr. Meinke had been served prior to the dates when he violated the protection order. {¶29} The majority also discounts the witnesses’ testimony regarding service as hearsay and notes that the State did not av ail itself of other methods to pr ove service. While Mr. Meinke argued on appeal, in his sufficiency challenge, that the testimony was hearsay, he did not object to this particular testimony below. 2 Therefore, the witnesses’ testimony regarding service of the protection order was before th e jury as it deliberated. {¶30} The fact that the State had other methods to prove service is immaterial. The issue is not did the State present the best evidence of service, but whether the failure to instruct on the service element contributed to the verdict. See Neder v. United States , 527 U.S. 1, 15 (1999). Based on the substantial and uncontradicted evidence presented in this case, I would find it “clear beyond a reasonable doubt that a ra tional jury would have found [Mr. Meinke] guilty absent the [failure to instruct on service.]” See id . at 18. Consequently, I would find this error was harmless and overrule the first assignment of error.

2 There was one objection, but it came afte r Officer Webber described “standard operating procedure.” The State asked Officer We bber, “what system do you use to determine whether the defendant had received a copy?” The objection was that “[h]e testified that his partner did it.” The trial court overruled the obj ection, and Mr. Meinke has not challenged that ruling on appeal.12 {¶31} Finally, I would find that Mr. Meinke forfeited his allied offenses argument because he did not raise it in the trial court nor has he argued plain error on appeal. See State v. Mayfield , 9th Dist. Summit No. 27655, 2015-Ohio-5375, ¶ 6-7. {¶32} Accordingly, I would overrule all three of Mr. Meinke’s assignments of error and affirm the trial court.

(Cannon, J., of the Eleventh District Cour t of Appeals, sitting by assignment.)

APPEARANCES: ZACHARY B. SIMONOFF, Attorney at Law, for Appellant. SCOTT SERAZIN, Law Director, and MATTHEW MISHAK, Assistant Prosecuting Attorney, for Appellee.