Mather v. Hilfinger , 2021 Ohio 2812 ( 2021 )

[Cite as Mather v. Hilfinger, 2021-Ohio-2812.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
KELLY MATHER, :
Appellee, : CASE NO. CA2020-12-083
: OPINION
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:
SHAUNA WANG WALKER HILFINGER, :
Appellant. :
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20-CS-3909
Engel & Martin, LLC, and Anne L. Tamashasky, for appellee.
Bradley R. Hoyt, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Shauna Wang Walker Hilfinger, appeals the decision of the Warren
County Court of Common Pleas granting appellee, Kelly Mather, a civil stalking protection
order against her in accordance with R.C. 2903.214(C)(1). For the reasons outlined below,
we affirm the trial court's decision.
Warren CA2020-12-083
The Parties
{¶ 2} Mrs. Mather lives on Ivy Grove Place in Deerfield Township, Warren County,
Ohio with her husband, Michael, and their youngest son, Shawn. Hilfinger is the Mathers'
next-door neighbor who also lives on Ivy Grove Place in Deerfield Township, Warren
County, Ohio.
Mrs. Mather's Petition for a Civil Stalking Protection Order Against Hilfinger
{¶ 3} On July 20, 2020, Mrs. Mather filed a petition seeking a civil stalking protection
order against Hilfinger pursuant to R.C. 2903.214(C)(1). Mrs. Mather named both her
husband, Michael, and her youngest son, Shawn, as additional protected persons in her
petition. In support of her petition, Mrs. Mather alleged that on July 17, 2020, three days
prior to filing the petition, Hilfinger had started an "altercation" with her and her husband,
Michael. Mrs. Mather alleged that following this "altercation" that Hilfinger "phoned the
police and lied about the events." Mrs. Mather also alleged that later that night, at 11:39
p.m. on the night of July 17, 2020, Hilfinger "started shining a bright light" into her and her
husband's "bedroom window waking us." Mrs. Mather further alleged that approximately
two hours later, at 1:59 a.m. on the morning of July 18, 2020, Hilfinger pulled her car out of
her garage and "remotely beeped her horn, waking us once again." Mrs. Mather additionally
alleged that Hilfinger had engaged in this type of conduct "ALL THE TIME" and that
Hilfinger's behavior has caused her "stress & undue torturing." (Capitalization sic.)
Full Hearing on Mrs. Mather's Petition for a Civil Stalking Protection Order
{¶ 4} On September 4, 2020, a full hearing on Mrs. Mather's petition for a civil
stalking protection order was held before a trial court magistrate. During this hearing, the
magistrate heard testimony from two witnesses in support of Mrs. Mather's petition: Deputy
Kevin Wagner with the Warren County Sheriff's Office and Mrs. Mather's husband, Michael.
Mrs. Mather did not herself testify at this hearing. The following is a summary of the
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testimony offered by Deputy Wagner and Mr. Mather at this hearing.1
Deputy Wagner's Testimony
{¶ 5} Deputy Wagner testified that he was dispatched to the Mathers' residence on
July 17, 2020 at approximately 11:48 p.m. on a "neighbor trouble call." Deputy Wagner
testified that upon his arrival at the scene, he initially spoke with Mr. and Mrs. Mather.
Deputy Wagner testified that during this conversation, the Mathers told him that Hilfinger
had been doing "things to just subtly try and harass them" for "quite a while," such as
Hilfinger leaving her lawnmower out, unattended, and running in her driveway, as well as
Hilfinger shining flashlights into the Mathers' bedroom window. Deputy Wagner testified
that the Mathers were able to substantiate their claims against Hilfinger via video
surveillance footage taken from their home security camera.
{¶ 6} Deputy Wagner testified that after speaking with Mr. and Mrs. Mather, he then
went next door and spoke to Hilfinger. Deputy Wagner testified that following his
conversation with Hilfinger that he went back to the Mathers' home and advised the Mathers
that there was "very limited amount of things" that he could do "unless it's a protection
order." Deputy Wagner testified that he then left the scene and resumed his patrol duties.
{¶ 7} Deputy Wagner testified that several hours later, on July 18, 2020 at around
2:00 a.m., he was dispatched back out to the Mathers' residence. Deputy Wagner testified
that upon his arrival back at the scene that he again spoke with Mr. and Mrs. Mather.
Deputy Wagner testified that during this conversation, the Mathers told him that they "were
at their wit's end with everything" after Hilfinger had moved her car out of her garage and
began "pressing like the double-lock button on her car remote, causing the car horn to go
1. Hilfinger also testified at the full hearing on Mrs. Mather's petition for a civil stalking protection order. The
trial court, however, found the vast majority Hilfinger's testimony denying Mrs. Mather's allegations lacked
credibility.
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off * * *." Deputy Wagner testified that the Mathers told him that Hilfinger was causing her
car horn to go off "periodically. Not – not continuously, just kind of periodically –, * * * every
maybe 10 minutes or so."
{¶ 8} Deputy Wagner testified that after speaking with the Mathers, he left the scene
and began driving away. Deputy Wagner testified, however, that while he was driving away
that he heard Hilfinger honk her car's horn. Deputy Wagner testified that he then heard
Hilfinger honk her car's horn again "[a]bout 20 minutes later" while he was parked down the
street approximately 200 feet away from the Mathers' home. Deputy Wagner testified that
after hearing Hilfinger's car horn honk a second time, he returned to the scene and knocked
on Hilfinger's door. Deputy Wagner testified that he got no response from Hilfinger. Deputy
Wanger testified that he still got no response from Hilfinger even after making it known that
he was a police officer.
{¶ 9} Concluding, Deputy Wagner testified about the Mathers' state of mind that
evening. This included Deputy Wagner testifying about whether he believed the Mathers
seemed "under distress" that night. As Deputy Wagner testified:
Under distress, maybe not. But definitely stressed, as far as –
you know, they were just wanting all this kind of [to] end and –
and stop. You know, I – they seemed at their wit's end, as far
as – you know, losing sleep and – and things like that.
Mr. Mather's Testimony
{¶ 10} Mr. Mather testified that "a lot of things have just built up over time" between
he, his wife, and Hilfinger. Mr. Mather testified, however, that the straw that finally broke
the camel's back occurred on the evening of July 17, 2020 and into the early morning hours
of July 18, 2020 when Hilfinger shined a bright light into he and Mrs. Mather's bedroom
window and then, several hours later, woke them up every ten minutes by causing her car's
horn to periodically honk. Describing these events further, Mr. Mather testified that Hilfinger
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shining the bright light into the Mathers' bedroom "lit [their] room up like it was daylight" and
"scared the heck out of us, like what is going on –." Mr. Mather also testified that Hilfinger
shining the bright light into the bedroom "upset" them and "literally put so much fear into us,
that we're like -- * * * -- we're at our wit's end now."
{¶ 11} Mr. Mather testified that Hilfinger's conduct towards him and his wife had
caused both his and Mrs. Mather's anxiety and stress levels to rise. Mr. Mather also testified
that Hilfinger's conduct had "caused a tremendous amount of mental distress" on him and
Mrs. Mather. Mr. Mather testified that this included both he and Mrs. Mather changing their
schedules in an effort to avoid having contact with Hilfinger. Mr. Mather also testified that
Hilfinger's conduct towards them was "terrible" and that Hilfinger's conduct had caused Mrs.
Mather to begin losing her hair.
{¶ 12} Concluding, Mr. Mather testified about the impact that Hilfinger's conduct had
on his and Mrs. Mather's marriage, as well as his and Mrs. Mather's daily lives. As Mr.
Mather testified:
Well, it's – it's – it's put a tremendous stress on our marriage.
It's put a tremendous stress just on daily living. Where – where
[are] we going? Are we going to sit outside? You know, just –
you know, think about going out to get the mail. * * * I mean, we
look just to make sure [Hilfinger's] garage doors are shut before
we even go get the mail. I mean, it's – it's had a tremendous
impact on – on all facets.
Magistrate's Decision
{¶ 13} Following this hearing, the magistrate issued a decision granting Mrs.
Mather's petition for a civil stalking protection order against Hilfinger naming both Mrs.
Mather's husband, Michael, and youngest son, Shawn, as additional protected persons. In
so holding, the magistrate stated within its decision the following:
The Court hereby makes the following findings of fact: THAT ON
MORE THAN TWO OCCASIONS IN EARLY AND MID 2020,
MOST NOTABLY JULY 17-18 2020, RESPONDENT
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KNOWINGLY CAUSED PETITIONER'S HOUSEHOLD TO
SUFFER AND TO FEAR MENTAL DISTRESS BY A PATTERN
OF DELIBERATELY DISRUPTING THEIR SLEEP BY
SHINING A STRONG FLASH LIGHT INTO THEIR BEDROOM
WINDOW, WHICH [MR. MATHER] TESTIFIED STARTLED
THEM FROM SLEEP, AND BY A SERIES OF INTERMITTENT
BEEPS FROM HER CAR, SPANNING THE EARLY HOURS
AFTER MIDNIGHT, WITH THE EVIDENCE PURPOSE TO
DISTURB HER NEIGHBOR'S SLEEP.
(Capitalization sic.)
Trial Court's Decision Overruling Hilfinger's Objection to the Magistrate's Decision
{¶ 14} On September 15, 2020, Hilfinger filed an objection to the magistrate's
decision. After taking the matter under advisement, the trial court denied Hilfinger's
objection in a decision issued on November 12, 2020. In reaching this decision, the trial
court stated:
[T]he transcript demonstrated that [Hilfinger] engaged in a
pattern of behavior over the evening of July 17 [and] into the
morning of July 18 – namely, shining a flashlight into [Mr. and
Mrs. Mather's bedroom] window and, hours later, repeatedly
causing her car alarm to sound by pressing the lock button on
her key fob – and that is what the magistrate found to satisfy the
statutory requirement of a "pattern of conduct." The statute
requires two or more incidents of menacing in a close proximity
of time. There is nothing to indicate that the magistrate erred in
her application of the law to the facts presented in the hearings.
Based upon a thorough and independent review of the record in
this case, the Court finds that the magistrate was in the best
position to evaluate the credibility of the witnesses in this case
as they gave testimony.
{¶ 15} Hilfinger now appeals the trial court's decision granting Mrs. Mather's petition
for a civil stalking protection order against her in accordance with R.C. 2903.214(C)(1). In
support of her appeal, Hilfinger raises four assignments of error for review. For ease of
discussion, and because they are interrelated, we will address Hilfinger's first and second
assignments of error together.
Standard of Review for a Civil Stalking Protection Order
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{¶ 16} The trial court must find that the elements of R.C. 2903.214(C)(1) were proven
by a preponderance of the evidence in order to grant the petitioner a civil stalking protection
order. Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641, ¶ 9. That
means "[a] preponderance of the evidence standard applies to the trial court's decision
granting a civil stalking protection order." Cutler v. Reed, 12th Dist. Butler No. CA2015-06-
105, 2016-Ohio-1151, ¶ 28, citing Henry v. Coogan, 12th Dist. Clermont No. CA2002-05-
042, 2002-Ohio-6519, ¶ 15. "Preponderance of the evidence" means the greater weight of
the evidence, or evidence that leads the trier of fact to find that the existence of the
contested fact is more probable than its nonexistence. Eckstein v. Colian, 7th Dist.
Columbiana No. 11 CO 22, 2012-Ohio-4038, ¶ 14. Therefore, "[w]hen assessing whether
a civil stalking protection order should have been issued, the reviewing court must
determine whether there was sufficient credible evidence to prove by a preponderance of
the evidence that the petitioner was entitled to relief." Fouch v. Pennington, 12th Dist.
Clermont No. CA2011-10-075, 2012-Ohio-3536, ¶ 9. This standard is, in essence, a review
as to "whether the issuance [of the protection order] was against the manifest weight of the
evidence." McBride v. McBride, 12th Dist. Butler No. CA2011-03-061, 2012-Ohio-2146, ¶
10.
{¶ 17} "The standard of review for a manifest weight challenge in a civil case is the
same as that applied to a criminal case." Almoari v. Almajali, 12th Dist. Butler No. CA2019-
11-187, 2020-Ohio-4349, ¶ 69, citing Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055,
2016-Ohio-641, ¶ 8, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 17.
In considering a manifest weight challenge, a reviewing court weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether in
resolving conflicts in the evidence, the finder of fact clearly lost its way and created a
manifest miscarriage of justice warranting reversal and a new trial ordered. Hacker v.
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House, 12th Dist. Butler No. CA2014-11-230, 2015-Ohio-4741, ¶ 21, citing Eastley at ¶ 20.
"A judgment will not be reversed as being against the manifest weight of the evidence where
the judgment is supported by some competent, credible evidence going to all essential
elements of the case." McGrady v. Muench, 12th Dist. Warren No. CA2018-12-145, 2019-
Ohio-2677, ¶ 14, citing Sterling Constr., Inc. v. Alkire, 12th Dist. Madison No. CA2016-12-
032, 2017-Ohio-7213, ¶ 8.
Hilfinger's Assignments of Error Nos. 1 and 2:
{¶ 18} THE TRIAL COURT ERRED IN THAT THE DECISION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE THAT THE DEFENDANT CAUSED
PETITIONER TO SUFFER AND TO FEAR MENTAL DISTRESS.
{¶ 19} THE TRIAL COURT ERRED AND PREJUDICED THE DEFENDANT BY
FINDING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE THAT THE
DEFENDANTS [sic] NOISE AND LIGHT CAUSED MENTAL DISTRESS.
{¶ 20} In her first and second assignments of error, Hilfinger argues the trial court
erred by finding the petitioner, Mrs. Mather, had proven by a preponderance of the evidence
that her actions had caused Mrs. Mather "to suffer and to fear mental distress." We
disagree.
{¶ 21} As noted above, Mrs. Mather filed her petition for a civil stalking protection
order against Hilfinger in accordance with R.C. 2903.214(C)(1). Pursuant to that statute,
the issuance of a civil stalking protection order "requires the petitioner to establish that the
respondent engaged in conduct constituting menacing by stalking." Harnar v. Becker, 12th
Dist. Warren No. CA2020-10-068, 2021-Ohio-784, ¶ 6, citing Lane v. Brewster, 12th Dist.
Clermont No. CA2011-08-060, 2012-Ohio-1290, ¶ 18. The phrase "menacing by stalking"
means engaging in a pattern of conduct that knowingly causes another "to believe that the
offender will cause physical harm to the other person * * * or cause mental distress to the
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other person * * *." R.C. 2903.211(A)(1). "Explicit threats are not necessary to establish
menacing by stalking under R.C. 2903.211." Bartells v. Bertel, 12th Dist. Butler No.
CA2016-11-216, 2018-Ohio-21, ¶ 56, citing Lundin v. Niepsuj, 9th Dist. Summit No. 26015,
2014-Ohio-1212, ¶ 19.
{¶ 22} The term "mental distress" is defined by R.C. 2903.211(D)(2) to mean:
(a) Any mental illness or condition that involves some temporary
substantial incapacity;
(b) Any mental illness or condition that would normally require
psychiatric treatment, psychological treatment, or other mental
health services, whether or not any person requested or
received psychiatric treatment, psychological treatment, or
other mental health services.
{¶ 23} "Mental distress need not be incapacitating or debilitating." Joy v. Letostak,
10th Dist. Franklin No. 14AP-1040, 2015-Ohio-2667, ¶ 25. Expert testimony is also "not
required to demonstrate that a petitioner has suffered from mental distress." Coleman v.
Razete, 1st Dist. Hamilton No. C-180232, 2019-Ohio-2106, ¶ 24, citing Smith v. Hein, 1st
Dist. Hamilton No. C-140529, 2015-Ohio-2749, ¶ 9. It is instead the "duty of the trier of fact
to determine whether a victim suffered mental distress as a result of the offender's actions."
Fouch, 2012-Ohio-3536 at ¶ 13, citing Middletown v. Jones, 167 Ohio App.3d 679, 2006-
Ohio-3465, ¶ 7 (12th Dist.). In making this determination, the trial court "may rely on its
knowledge and experience in determining whether mental distress has been caused."
Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, ¶ 18 (4th Dist.). Therefore, "while
mental distress need not be shown to any level of professional certainty," mental distress
must nevertheless "be proven by facts introduced at trial and the reasonable inferences
springing from those facts." Cleveland Hts. v. Lewis, 8th Dist. Cuyahoga No. 79511, 2002-
Ohio-2736, ¶ 22.
{¶ 24} Hilfinger argues the trial court erred by finding Mrs. Mather had proven by a
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preponderance of the evidence that her actions caused Mrs. Mather "to suffer and to fear
mental distress" since Mrs. Mather, as the petitioner, did not herself testify at the final
hearing in support of her petition for a civil stalking protection order. However, while it may
make it more difficult for the petitioner to meet his or her burden of proof, there is no
requirement mandating the petitioner testify before the trial court may issue a civil stalking
protection order under R.C. 2903.214(C)(1). This holds true so long as each element
necessary to obtain the order can be proven by a preponderance of the evidence. This
makes sense when considering the possibility that the mental distress caused by the
respondent's conduct could, but not necessarily would, render the petitioner severally
incapacitated and/or debilitated, thereby preventing the petitioner from testifying in support
of his or her petition. This also makes sense when considering a contrary holding would
encourage far more egregious behavior from the would-be respondent in hopes that the
petitioner would suffer significantly more mental distress so that he or she would be unable
to testify against the respondent in the future. That is certainly not what the General
Assembly intended through the passage of R.C. 2903.214(C)(1).
{¶ 25} After a full and thorough review of the record, we find there was ample
evidence presented to support the trial court's decision finding Hilfinger's conduct caused
Mrs. Mather to suffer mental distress. This includes Deputy Wagner's testimony that
Hilfinger's conduct late on the night of July 17, 2020, and the early morning hours of July
18, 2020, "definitely" caused both Mr. Mather and Mrs. Mather to suffer from "stress." This
also includes Deputy Wagner's testimony that the Mathers "seemed at their wit's end" due
to their "losing sleep" and "things like that." This is in addition to Mr. Mather testifying that
Hilfinger shining a bright light into the bedroom "lit [their] room up like it was daylight" and
"scared the heck out of [them], like what is going on –." Mr. Mather further testified that
Hilfinger shining a bright light into the bedroom "upset" them and "literally put so much fear
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into us, that we're like -- * * * -- we're at our wit's end now."
{¶ 26} Mr. Mather also testified that Hilfinger's conduct had caused both his and Mrs.
Mather's anxiety and stress levels to rise and that "it's caused a tremendous amount of
mental distress on us" that "[i]t's terrible." This was in addition to Mr. Mather's testimony
that Hilfinger's conduct had caused he and Mrs. Mather "tremendous stress on [their]
marriage," as well as a "tremendous stress just on daily living." Mr. Mather further testified
that Hilfinger's conduct had caused Mrs. Mather to begin losing her hair. This evidence, if
believed, was more than sufficient to warrant the issuance of a civil stalking protection order
pursuant to R.C. 2903.214(C)(1). Therefore, because we find no error in the trial court's
decision finding the petitioner, Mrs. Mather, had proven by a preponderance of the evidence
that Hilfinger's actions had caused her to suffer "mental distress" as that term is defined by
R.C. 2903.211(D)(2), Hilfinger's first and second assignments of error lack merit and are
overruled.
Hilfinger's Assignment of Error No. 3:
{¶ 27} THE TRIAL COURT ERRED AND PREJUDICED THE DEFENDANT BY
FINDING THAT THE DEFENDANT ACTED KNOWINGLY TO CAUSE PETITIONER TO
SUFFER AND TO FEAR MENTAL DISTRESS.
{¶ 28} In her third assignment of error, Hilfinger argues the trial court erred by finding
she "acted knowingly" to cause Mrs. Mather to suffer mental distress. However, as the
record indicates, it is clear that Hilfinger intentionally shined a bright light into the Mathers'
bedroom window late at night and, hours later, repeatedly caused her car horn to sound by
pressing the lock button on her key fob. Despite Hilfinger's claims, there is no question that
Hilfinger engaged in such conduct knowing that her conduct would cause Mrs. Mather, if
not also Mrs. Mather's husband, Michael, and her youngest son, Shawn, to suffer mental
distress. That was, in fact, the entire point of Hilfinger engaging in such behavior.
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Therefore, because we find no error in the trial court's decision finding Hilfinger "acted
knowingly" to cause Mrs. Mather to suffer mental distress, Hilfinger's third assignment of
error also lacks merit and is overruled.
Hilfinger's Assignment of Error No. 4:
{¶ 29} THE TRIAL COURT ERRED AND PREJUDICED THE DEFENDANT
FINDING A PATTERN IN THE DEFENDANTS [sic] BEHAVIOR.
{¶ 30} In her fourth assignment of error, Hilfinger argues the trial court erred by
finding she engaged in a "pattern of conduct" rather than "one single event." But, as noted
above, the record indicates Hilfinger intentionally shined a bright light into the Mathers'
bedroom window late at night and, hours later, repeatedly caused her car horn to sound by
pressing the lock button on her key fob. The trial court determined that this was a pattern
of conduct. We agree. "A pattern of conduct requires only two or more actions closely
related in time." Harnar, 2021-Ohio-784 at ¶ 8, citing R.C. 2903.211(D)(1). That is exactly
what we have here. Therefore, because we find no error in the trial court's decision finding
Hilfinger had engaged in a "pattern of conduct" rather than "one single event," Hilfinger's
fourth assignment of error lacks merit and is overruled.
Conclusion
{¶ 31} For the reasons outlined above, and finding no merit to any of Hilfinger's
arguments raised herein, the trial court's decision granting Mrs. Mather's petition for a civil
stalking protection order against Hilfinger in accordance with R.C. 2903.214(C)(1) is
affirmed.
{¶ 32} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
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