Opinion
Case No. 3:05PO055.
February 17, 2006
ENTRY AND ORDER FINDING DEFENDANT NOT GUILTY; TERMINATING CASE
This matter is before the Court following trial. Defendant is charged with Violating a Protective Order in violation of Ohio Revised Code § 2919.27(A)(2). Upon the evidence adduced the Court finds that the United States failed to prove Defendant's guilt beyond a reasonable doubt and accordingly finds Defendant not guilty of the charge.
I. FACTUAL FINDINGS
The evidence established at trial revealed that Defendant's former girlfriend, Donna Weaver obtained an Order of Protection pursuant to Ohio Revised Code § 2903.214. That order dated March 25, 2005, prohibited Defendant from having any contact with Ms. Weaver ". . . at their residences, businesses, places of employment, schools, day care centers, and babysitters. Contact includes, but is not limited to, telephone, fax, e-mail, voice mail, delivery service, writings, or communications by any other means in person or through another person." (Government Exhibit 1 at 2).
Both Defendant and Ms. Weaver work at Wright Patterson Air Force Base. On April 25, 2005, Ms. Weaver received a call while she was driving to work. At first she assumed it was from her children who regularly called her at this time in the morning but when she saw that the number was a "Wright Patterson" number, she assumed it was from her boss. She answered the phone and immediately recognized the voice of Defendant on the other line. Ms. Weaver testified credibly that she heard him say "Maggie, Maggie, is that you?" Ms. Weaver immediately hung up the phone, proceeded to work and immediately notified Base Security of the contact. Ms. Weaver was understandably in great fear and very upset as a result of this contact. Base Security had previously received a copy of the Protective Order. Subsequent investigation revealed that the phone call had come from an area of the Base where Defendant had access.
At the conclusion of the Government's case, the Court overruled the Defendant's Motion for Acquittal. Defendant thereafter presented the testimony of his sister Margaret Petry, who goes by the first name of Maggie. She testified that on April 25, 2005, in the early morning hours, she attempted to contact her brother who was at work due to a family emergency. She was unable to get through to him and left a message for him to call her as soon as possible. Mr. Calvin Woolum, co-worker and good friend of Defendant testified that at the date and time in question he had received the message from Defendant's sister and advised Defendant to call Maggie due to the family emergency. Both men were located in an area that required top secret security clearance in order to gain access. Woolum stated that he allowed Defendant to use his phone and observed Defendant pick up the phone and place a call. He heard Defendant say: "Maggie, are you there?" He then saw Defendant hang up the phone, re-dial and begin speaking to his sister about the family emergency. The Court finds that Defendant placed the first call to Bonnie Weaver's phone and hung up as soon as he realized he had contacted her instead of his sister. Both Maggie and Ms. Weaver had phone numbers starting with the same prefix "270."
II. LEGAL CONCLUSIONS
Defendant was charged by Information with recklessly violating the terms of the protective order when he called Ms. Weaver's cell phone on the day in question. The culpable mental state involved with this offense is recklessness. That mental state is defined in Ohio Revised Code § 2901.22 (C) as follows:
(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his 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, he perversely disregards a known risk that such circumstances are likely to exist.
The evidence established at trial proved that Defendant called Ms. Weaver's cell phone on the day and time alleged. However, the issue for this Court is whether Defendant recklessly did so. A greater weight of the evidence established that Defendant either negligently or accidentally called Ms. Weaver when he actually was attempting to call his sister Maggie. This is confirmed by Ms. Weaver's testimony regarding his statement about Maggie when he called her. Also it is clear that Defendant was responding to news that he had a family emergency and was trying to call his sister as soon as he received the message. This is not a situation where Defendant made numerous calls to Ms. Weaver on the day in question, as he had done before the Protective Order, but rather a single call. Because the Court finds that Defendant's conduct does not rise to the level of recklessness but rather was negligent or accidental the Government did not establish guilt beyond a reasonable doubt. Accordingly the Court finds Defendant not guilty of the charge and orders that the case be terminated from the docket of this Court.