Even if it was nineteen years apart.
Protection orders are about the behavior of the respondent and nothing else. How or why a respondent finds himself at the petitioner’s doorstep is irrelevant. To find appellant guilty of complicity would be to criminalize an irrelevancy. State v. Lucas, 100 Ohio St. 3d 1 (2003).
State v. Krause
2021 – Ohio – 3657
Eleventh District Appellate Court
Lake County, Ohio
October 12, 2021
Mr. Nicholas Krause and Emily Ms. Rosipko were married in August 2017. Following the marriage, the couple lived together for brief periods of time in Cleveland, Ohio. In September 2019, their daughter was born. In December 2019, the couple separated. Ms. Rosipko moved to her mother’s house in Chardon, Ohio and later to her own apartment in Painesville, Ohio.
In May 2020, Ms. Rosipko obtained a protection order against Mr. Krause in the Lake County Court of Common Pleas. The order prohibited Mr. Krause from, among other things, entering Ms. Rosipko’s residence; being present within 500 feet of Ms. Rosipko and their daughter; and initiating or having any contact with them. The order specifically prohibited Mr. Krause from engaging in the foregoing acts “even with the permission of a protected person.” The order also prohibited Mr. Krause from removing any property that Ms. Rosipko owned or possessed. It permitted Mr. Krause to be in Ms. Rosipko’s presence “for all domestic relations proceedings, hearings and meetings related to a divorce and/or dissolution action filed by either or both parties.”
Lake County Court of Common Pleas, 25 North Park Place, Painesville, Ohio. Ms. Emily Rosipko obtained a protection order from this court for protection from Mr. Nicholas Krause in May 2020. Less than three months later Ms. Rosipko permitted Mr. Krause to move in with her.
While the couple was separated, Ms. Rosipko became pregnant as a result of another relationship. At the end of May 2020, Mr. Krause called Ms. Rosipko to mend their relationship and offered to help parent the new child after its birth. In early July 2020, Mr. Krause began residing at Ms. Rosipko’s apartment in Painesville. At the time of this blissful reconciliation Mr. Krause was in violation of the protection order. This violation would be at issue in this appeal.
On the evening of Saturday July 18, 2020, Ms. Rosipko arrived home from work. Mr. Krause was present at the apartment with their daughter. At some point, Ms. Rosipko and Mr. Krause engaged in a heated argument about the cleanliness of the apartment. Ms. Rosipko decided to shut herself in her bedroom to allow the situation to cool off. About an hour later, around 8:00 p.m., Ms. Rosipko came out of her bedroom and discovered that Mr. Krause had left the residence with her car keys and her vehicle.
Ms. Rosipko had purchased the vehicle during the marriage but was the sole titled owner. According to Ms. Rosipko, there were “trust issues” in their marriage. There were also “trust issues” with Ms. Rosipko and the Lake County Court when the protection order was issued and intentionally violated. Ms. Rosipko permitted Mr. Krause to drive her vehicle to work and under certain circumstances if he informed her when he arrived at his destination.
Ms. Rosipko began “frantically” calling Mr. Krause and others to locate her vehicle. Around 1:00 a.m., Mr. Krause finally answered. He told her that he was at a party, had been drinking, and would not be back with her vehicle. Ms. Rosipko’s only car seat for their daughter was in the vehicle, and she needed it to take the child to the babysitter before going to work the next day. Once Ms. Rosipko threatened to call the police to the party, Mr. Krause told her that he was on his way.
When Mr. Krause arrived at the apartment complex, Ms. Rosipko went outside and met him at the driver’s side window. While Mr. Krause was sitting inside the vehicle, they began arguing because Ms. Rosipko refused to take Mr. Krause to a hotel at that time of night.
Mr. Krause attempted to get out of the vehicle. Since Ms. Rosipko was standing close by, Mr. Krause struck her with the driver’s side door and was not able to exit. Ms. Rosipko was shoved backwards slightly but was not knocked off her feet. She described the impact as being greater than “a tap” but not “hard” or “painful.” Mr. Krause climbed over the passenger side, threw the car keys on the driver’s seat, and jumped out of the passenger side window.
Mr. Krause had previously told Ms. Rosipko that he had possession of her spare car key. To prevent Mr. Krause from taking her vehicle again, Ms. Rosipko unlatched the vehicle hood to unplug the battery. As she walked toward the hood, Mr. Krause realized what she was doing and closed the hood. When Ms. Rosipko again attempted to unlatch the hood, Mr. Krause jumped over the hood to get to the driver’s side and shoved Ms. Rosipko out of the way. Ms. Rosipko described it as being a “hard shove” that caused her to stumble backward.
Mr. Krause climbed through the driver’s side window and started the car. Ms. Rosipko became “frantic” and approached the driver’s side door. Mr. Krause backed the car up rapidly, at which time Ms. Rosipko was struck by the driver’s side mirror and the front panel of the vehicle and fell to the ground. As he shifted gears, Mr. Krause observed Ms. Rosipko lying on the ground and drove away. Ms. Rosipko called her friend and her mother, who both advised her to call the police. Ms. Rosipko called 911 to report the event and went upstairs to check on her daughter.
Two officers from the Painesville Police Department responded to the call and spoke with Ms. Rosipko. She was visibly upset and had observable injuries, including cuts on her knees as well as bruising and road rash along the back of her left thigh. The officers obtained a written statement from Ms. Rosipko, took photos of her injuries, and reported the vehicle as stolen. Shortly thereafter, Mr. Krause was located and arrested.
In the following days, Ms. Rosipko experienced pain on the side of her body where the driver’s side mirror had struck her. She attempted to call off work the day after the incident and was sent home when she could not perform her duties. In September 2020, the Lake County Grand Jury indicted Mr. Krause on the following five counts:
Felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(2) (count 1).
Domestic violence, a felony of the fifth degree, in violation of R.C. 2919.25(A), including an allegation that Mr. Krause knew Ms. Rosipko was pregnant at the time of the offense (count 2).
Violating a protection order, a felony of the third degree, in violation of R.C. 2919.27(A)(1), including an allegation that Mr. Krause violated the protection order while committing a felony offense, i.e., felonious assault and/or domestic violence (count 3).
Violating a protection order, a misdemeanor of the first degree, in violation of R.C. 2919.27(A)(1) (count 4).
Unauthorized use of a vehicle, a misdemeanor of the first degree, in violation of R.C. 2913.03(A) (count 5).
The trial court delivered its verdicts, finding Mr. Krause not guilty of felonious assault (count 1) and guilty of domestic violence (count 2), both counts of violating a protection order (counts 3 and 4), and unauthorized use of a vehicle (count 5). Mr. Krause was sentenced to two years in prison.
Mr. Krause filed several appeals and he lost each. This article will focus on his appeal that the state failed to meet the sufficiency of evidence that Mr. Krause violated the protection order. The Eleventh District Appellate Court held “[T]here is no basis for this court to conclude that the trial court clearly lost its way or created a manifest miscarriage of justice in finding Mr. Krause guilty of violating a protection order.”.
Information for this article was obtained from State v. Krause, 2021 – Ohio – 3657.
This case was issued by the Eleventh District Appellate Court which is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.
- Rosipko granted Mr. Krause consent to move in with her AFTER the Lake County Court of Common Pleas issued a protection order. This is so very common and frustrating for law enforcement and the community. Several years ago, on May 10, 2001 in Licking County, Ohio, officers found themselves in the same situation. Betty Lucas was divorced from her ex-husband Joseph Lucas and invited him to her home to celebrate one of their kids’ birthdays. Betty had obtained a protection order from the Licking County Court of Common Pleas. Both Betty and Joseph began to celebrate the Twenty-First Amendment [drinking] together. Predictably this led to a physical altercation and when law enforcement responded they arrested both Betty and Joseph. Joseph was charged with Violation of a Protection Order and Betty was charged with Complicity to Violate the Protection Order … because she was complicent. Both the trial court and Fifth District Appellate Court agreed that Betty was guilty of Complicity to Violate a Protection Order. However, the Supreme Court of Ohio disagreed holding “[W]e hold that an individual who is the protected subject of a temporary protection order may not be prosecuted for aiding and abetting the restrainee under the protection order in violating said order.”. The Supreme Court of Ohio made this conclusion based on the following analysis “The General Assembly has made an invitation by the petitioner for the respondent to violate the terms of a protection order irrelevant to a respondent’s guilt. Protection orders are about the behavior of the respondent and nothing else. How or why a respondent finds himself at the petitioner’s doorstep is irrelevant. To find appellant guilty of complicity would be to criminalize an irrelevancy.”. State v. Lucas, 100 Ohio St. 3d 1 (2003). Consequently, even though Emily Rosipko, like Betty Lucas nineteen years before her, was complicent to violating the protection order, but Emily Rosipko could not be successfully charged.
- Based on the evidence provided at trial, Mr. Krause was clearly guilty of felony domestic violence. His attorney made several arguments to challenge the sufficiency of the evidence without success. What is transparent about this case is the significant documentation by Painesville Police who documented the information provided by Ms. Rosipko at the time of the assault. The initial report and photographs were key to successfully prosecuting Mr. Krause.
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!