Background
David McKinney was indicted across four separate cases between May 2024 and June 2025 for stalking and violating a domestic violence civil protection order against his former live-in girlfriend, S.P. The protection order, issued November 28, 2023, and served December 8, 2023, prohibited McKinney from entering S.P.’s residence, workplace, or school, from being within 500 feet of her, and from following her on public or private roads.
The indictments charged McKinney with violating the protection order as “a continuous course of conduct” spanning months. At trial, S.P. testified she saw McKinney more than 100 times—sometimes multiple times daily—at locations she frequented, on routes she traveled, and near her home despite the order’s terms. The State presented evidence of approximately 100 to 200 incidents but never specified which particular acts constituted the violations charged in each count. McKinney was convicted of two felony counts of violating the protection order and one felony count of menacing by stalking.
The Court’s Holding
The Second District vacated McKinney’s protection order violation convictions, finding duplicity in both the indictment and the charge itself. The court identified two distinct forms of duplicity: duplicity in the indictment (charging multiple distinct offenses in a single count) and duplicity in the charge (presenting multiple incidents at trial to prove a single charged offense). Here, both occurred.
On duplicity in the indictment, the court found the charges facially defective: R.C. 2919.27(A)(1) criminalizes violating a protection order but does not contemplate a “course of conduct” as an element—it is a single-act offense. By alleging “continuous course of conduct” violations spanning months in single counts, the indictment improperly charged multiple distinct offenses in each count.
On duplicity in the charge, the State presented evidence of 100–200 incidents but never elected the particular acts constituting each violation. No bill of particulars identified specific acts, and the jury received no instruction that all jurors must agree on the same underlying conduct for each count. The court distinguished cases involving childhood sexual abuse (where course-of-conduct prosecutions have been permitted) as inapplicable, because State v. Gardner requires either State election of the specific act or a jury instruction ensuring unanimity on the same underlying act—neither occurred here. Applying plain error review (since the issue was not raised at trial), the court concluded the error was obvious and affected the trial outcome.
Key Takeaways
- An indictment charging a single-act statutory offense (like protection order violation) as a “continuous course of conduct” is facially duplicitous and violates the defendant’s rights to notice, jury unanimity, and protection against double jeopardy.
- When the State presents multiple incidents at trial to prove one charged offense, it must either specifically elect which act it relies on for conviction or the trial court must instruct the jury that all jurors must unanimously agree on the same underlying criminal act.
- Course-of-conduct prosecutions permitted in child sexual abuse cases do not extend to protection order violations when the offenses occur over time and no particularized identification distinguishes each charged violation.
- Duplicity defects can constitute plain error on appeal even when not raised at trial if the error is obvious and affects substantial rights.
Why It Matters
This decision reinforces Ohio’s constitutional protections for defendants facing multiple-incident prosecutions. The court’s holding distinguishes between offense types: crimes with a statutory “course of conduct” element (like menacing by stalking) may be charged on that theory, but single-act offenses (like protection order violation) cannot be artificially charged as continuing courses merely because evidence shows multiple violations. The ruling ensures that when multiple potential criminal acts are presented at trial, jurors know what specific conduct they are finding guilty, protecting both notice rights and jury unanimity requirements.
The decision also clarifies that prosecutors cannot circumvent specificity requirements by presenting 100+ incidents and allowing a jury to convict without identifying which acts support each count. This protects defendants’ constitutional rights while preserving the State’s ability to prosecute genuine patterns of conduct in appropriate statutory contexts. The court remanded solely for correcting the post-release control term imposed on the remaining menacing by stalking conviction, confirming the stalking conviction itself survived the duplicity challenge.