Baldwin v. Buckles , 2020 Ohio 2759 ( 2020 )

[Cite as Baldwin v. Buckles, 2020-Ohio-2759.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
Angela Baldwin Court of Appeals No. L-19-1013
Appellee Trial Court No. CI0201804670
v.
Kobi G. Buckles DECISION AND JUDGMENT
Appellant Decided: May 1, 2020
*****
Daniel H. Grna, for appellant.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common
Pleas which granted appellee’s civil protection order. For the reasons set forth below,
this court affirms the judgment of the trial court.
{¶ 2} On December 17, 2018, petitioner-appellee Angela Baldwin sought an ex
parte civil stalking protection order (“CSPO” or “SCPO”) against respondent-appellant
Kobi Buckles pursuant to R.C. 2903.214. Appellee is the minor victim’s custodial
grandmother. Respondent-appellant is a neighbor. On October 19, 2018, appellee
alleged that appellant assaulted the victim in their neighborhood in Toledo, Lucas
County, Ohio, while the victim rode his bike. When the victim and appellee went to the
hospital, the victim had sustained a fractured first thoracic vertebra (what appellee called
“a broken neck”). Appellee further alleged on October 29, 2018, appellant yelled threats
on the victim’s life out the window of a moving car that swerved towards the victim
while he, once again, rode his bike in the neighborhood. On November 18, 2018, Toledo
Police filed a complaint against appellant for felonious assault, and appellant was arrested
on December 7, 2018. Appellant posted bond on December 12, 2018, and on
December 17, 2018, the criminal complaint was bound over to the Lucas County Grand
Jury, who eventually indicted appellant on January 15, 2019, for felonious assault, a
violation of R.C. 2903.11(A)(1) and (D).
{¶ 3} In response to appellant’s release on bond and her fear for the safety of her
family, appellee sought the CSPO on behalf of two minors in her household: her victim
grandson and her son. On December 17, 2018, the trial court magistrate issued the
ex parte temporary CSPO for the protection of the minor victim only, and the same
magistrate held the full hearing on December 31, 2018. On December 31, 2018, the
magistrate issued another CSPO for the protection of the minor victim to run until
November 17, 2019, when the victim turned 18 years old, and the trial court judge
2.
adopted the magistrate’s order “after review and the determination that there is no error
of law or other defect evident on the face of this order.”
{¶ 4} On January 7, 2019, appellant objected to the magistrate’s order arguing the
trial court lacked jurisdiction because the victim did not qualify as respondent-appellant’s
“family or household member” pursuant to R.C. 3113.31, and the trial court’s findings of
fact were against the manifest weight of the evidence. On January 10, 2019, the trial
court judge overruled appellant’s objections stating that the court had jurisdiction
pursuant to R.C. 3113.31(A)(3)(ii) because the evidence in the record showed appellee
“is the custodial grandmother of” the minor victim. The trial court further stated
substantial, credible evidence was in the record, and the magistrate did not lose “her way
in weighing credibility and otherwise concluding as she did.” Appellant then filed a
motion for reconsideration, which the trial court judge denied on January 16, 2019. The
trial court stated the following:
Respondent is indeed correct in quoting (with supplied emphasis)
R.C. 3113.31(A)(3), which defines “family or household member” as, inter
alia, “another person related by consanguinity or affinity to the respondent.”
Applied to the instant case, Respondent * * * is not related in such a way to
* * * Petitioner and grandmother of * * * the minor for whom and for whose
benefit the CPO was requested. However, R.C. 2903.214(C) states as
follows: “A person under this section may seek relief under this section on
behalf of any other family or household member * * *.” To read these two
3.
applicable sections in pari materia as providing a bar to [Petitioner] seeking
a protection order for her grandson would be patently absurd and clearly
unintended result. If Respondent were correct, when would a grandmother
or other “family or household member” ever “seek relief” under the CPO
statute at issue? “A person may seek relief under” R.C. 2903.214 “by filing
a petition with the court.” The person filing the petition is the petitioner.
The respondent is the person against whom the CPO is sought. A petitioner
does not seek relief for a respondent. It is presumed that a reasonable result
is intended in the enactment of any statute. R.C. 1.47.
{¶ 5} Appellant filed his amended notice of appeal setting forth two assignments
of error.
I. The trial court did not have jurisdiction to grant a civil protection order.
II. The petitioner did not have standing to obtain a civil protection order
from the trial court.
I. Jurisdiction
{¶ 6} Appellant argues in support of his first assignment of error that the trial court
lacked jurisdiction to issue the CSPO pursuant to R.C. 2903.214 where there was no
evidence in the record that the relationship between appellant and appellee, or appellant
and the victim, satisfied R.C. 2903.214(A)(3), which, in turn, looked to R.C.
3113.31(A)(3) for the definition of a “family or household member.” Appellant argues
that the plain language of the statute requires that a “‘family or household member’
4.
MUST be in some way related and/or connected to the RESPONDENT otherwise the
statutory definition of what is a family or household member under R.C. 2903.214 cannot
be met.” (Emphasis sic.) Because neither appellee nor the victim have any such
relationship to appellant, appellant concludes the trial court “had no jurisdiction to issue
the CPO. The ruling of the Magistrate and the trial court granting the CPO must be
reversed.”
{¶ 7} “‘Jurisdiction’ means ‘the courts’ statutory or constitutional power to
adjudicate the case.’ The term encompasses jurisdiction over the subject matter and over
the person. * * * ‘If a court acts without jurisdiction, then any proclamation by that court
is void.’” (Citations omitted.) Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806
N.E.2d 992, ¶ 11. Subject-matter jurisdiction, which goes to the power of the trial court
to adjudicate the merits of a case, may be challenged at any time. Id.{¶ 8} We review de novo as a question of law whether a trial court had subject-
matter jurisdiction. Cirino v. Ohio Bur. of Workers’ Comp., 153 Ohio St.3d 333, 2018-
Ohio-2665, 106 N.E.3d 41, ¶ 17. “This court has long held that the court of common
pleas is a court of general jurisdiction, with subject-matter jurisdiction that extends to ‘all
matters at law and in equity that are not denied to it.’” (Citation omitted.) Bank of Am.,
N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 20; Ohio
Constitution, Article IV, Section 4(B).
{¶ 9} We find that pursuant to R.C. 2903.214(A)(1), “‘court’ means the court of
common pleas of the county in which the person to be protected by the protection order
5.
resides.” According to the record, the victim resides in Lucas County, and the CSPO
petition was filed in the Lucas County Court of Common Pleas. “[T]he [common pleas]
court has jurisdiction over all proceedings under this section.” R.C. 2903.214(B). This
court has previously determined the Lucas County Court of Common Pleas has R.C.
2903.214 subject-matter jurisdiction over a Lucas County resident to be protected. See
Irwin v. Murray, 6th Dist. Lucas No. L-05-1113, 2006-Ohio-1633, ¶ 13; see also
Zielinski-Barnwell v. Prewitt, 6th Dist. Wood No. WD-13-070, 2014-Ohio-3761, ¶ 14
(finding common pleas court had no subject-matter jurisdiction where the person to be
protected was not a resident of the county). Consequently, we find the Lucas County
Court of Common Pleas had jurisdiction over the CSPO at issue in this appeal.
{¶ 10} We reviewed the matter de novo and find the trial court had subject-matter
jurisdiction in this matter.
{¶ 11} Appellant’s first assignment of error is not well-taken.
II. Standing
{¶ 12} In support of his second assignment of error, appellant argues appellee
lacked standing to seek a CSPO petition pursuant to R.C. 2903.214(C) because the person
to be protected was not a “family or household member” pursuant to R.C.
2903.214(A)(3) and 3113.31(A)(3). Appellant argues R.C. 2903.214(A)(3) and
3113.31(A)(3) are clear and unambiguous, concluding, “Neither Baldwin nor McCrory fit
this definition. They both lacked standing to bring the Petition and the issuance of the
CPO should be reversed.”
6.
{¶ 13} Standing is a fundamental concept, a “jurisdictional requirement,” that a
party must have some real interest in the subject matter of the action. (Citations omitted.)
Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979
N.E.2d 1214, ¶ 22. The issue of standing may be raised at any time during the pendency
of the proceedings. Id. Standing is to be determined as of the filing of the complaint. Id.
at ¶ 27. Standing is a question of law we review de novo. Kincaid v. Erie Ins. Co., 128
Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 9, modified on reconsideration,127
Ohio St.3d 1550, 2011-Ohio-647, 941 N.E.2d 805, ¶ 20.
A. Absurd-Result Exception
{¶ 14} We determine appellee’s standing to file a CSPO by looking to R.C.
2903.214(C), which states, in part, “[A]ny * * * adult household member may seek relief
under this section on behalf of any other family or household member, by filing a petition
with the court. * * *.” A court determines legislative intent when interpreting a statute in
its entirety, using the language employed, “‘and if the words be free from ambiguity and
doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there
is no occasion to resort to other means of interpretation.’” (Citation omitted.) Horvath v.
Ish, 134 Ohio St.3d 48, 2012-Ohio-5333, 979 N.E.2d 1246, ¶ 10. The record shows that
appellee filed the CSPO petition on behalf of the minor victim, who, as her custodial
grandchild, initially would seem to be “any other family or household member” by a
plain reading of that phrase in R.C. 2903.214(C).
7.
{¶ 15} However, the phrase “family or household member” is defined by R.C.
2903.214(A)(3), stating, “As used in this section: * * * ‘Family or household member’
has the same meaning as in section 3113.31 of the Revised Code.” R.C. 3113.31(A)(3),
in turn, defines “family or household member” as follows: “As used in this section:
* * * any of the following: (a) Any * * * who is residing with or has resided with the
respondent: * * *. [or] (b) The natural parent of any child of whom the respondent is the
other natural parent or is the putative other natural parent.” The record does not show
evidence of such relationships between appellant and the minor victim, and the trial court
reached the same conclusion.
{¶ 16} Generally a statute should be interpreted according to its plain meaning.
One exception is the absurd-result exception, which holds as its guiding principle “that
when the General Assembly enacts a statute, it does not intend to produce an absurd
result.” State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office, 152 Ohio St.3d 163,
2017-Ohio-8714, 94 N.E.3d 498, ¶ 22. The Ohio Supreme Court guides us that we may
reject the strict-construction doctrine of statutory interpretation where doing so would
result in an unreasonable or absurd consequence. Id. at ¶ 23; Mishr v. Poland Bd. of
Zoning Appeals, 76 Ohio St.3d 238, 240, 667 N.E.2d 365 (1996). We are mindful that
“all courts should exercise restraint in the application of the absurd-result exception,
employing it in only those cases in which the plain language of a statute results in an
obviously unintended result.” State ex rel. Clay at ¶ 26.
8.
{¶ 17} The General Assembly also guides us to avoid absurd results when
determining the intentions in the enactment of statutes. Mishr at 240, citing R.C. 1.47 (C)
(“In enacting a statute, it is presumed that * * * a just and reasonable result is intended;
* * *.”).
{¶ 18} The cross-reference of R.C. 2903.214(A)(3) to 3113.31(A)(3) raises the
question of statutory interpretation of whether the General Assembly intended to mandate
the only protected person under R.C. 2903.214 must be a person subject to domestic
violence under R.C. 3113.31(A)(3). In other words, did the General Assembly intend to
protect two different types of endangered persons or to require all civil stalking victims to
exclusively be domestic violence victims? We doubt the latter was the General
Assembly’s intent, particularly where R.C. 2903.214(C)(1) requires a violation of R.C.
2903.211, the menacing by stalking statute. The General Assembly obviously erred by
referencing the definition of “family or household member” under R.C. 3113.31(A)(3)
rather than the definition under R.C. 2903.211(D)(11). We find that the plain language of
R.C. 2903.214(A)(3) requires applying the absurd-result exception to avoid the obviously
unintended result of eliminating protections to victims of stalking. State ex rel. Clay, 152
Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, at ¶ 26.
{¶ 19} We reviewed the matter de novo and find appellee had standing under the
absurd-result exception to file a petition pursuant to R.C. 2903.214 for her custodial
grandson who was a minor.
9.
B. In Pari Materia Doctrine
{¶ 20} Even if we did not apply the absurd-result exception, other rules of
statutory interpretation apply. “Under our rules of statutory construction, ambiguity
means that the statutory provision is ‘capable of bearing more than one meaning.’”
(Citation omitted.) Id. at ¶ 17. The cross-reference by R.C. 2903.214(A)(3) to an
incompatible definition in R.C. 3113.31(A)(3) raises such ambiguity.
{¶ 21} “The in pari materia rule of construction may be used in interpreting
statutes where some doubt or ambiguity exists. All statutes relating to the same general
subject matter must be read in pari materia, and in construing these statutes in pari
materia, this court must give them a reasonable construction so as to give proper force
and effect to each and all of the statutes.” State ex rel. Herman v. Klopfleisch, 72 Ohio
St.3d 581, 585, 651 N.E.2d 995 (1995).
{¶ 22} When faced with statutory ambiguity, we may invoke the rules of statutory
construction to arrive at legislative intent, which is determined primarily from the
language of the statute itself, along with other relevant factors, such as construing
ambiguous statutes under R.C. 1.49. State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-1698,
989 N.E.2d 972, ¶ 17, overturned by statute on other grounds. According to R.C.
1.49(A), “If a statute is ambiguous, the court, in determining the intention of the
legislature, may consider among other matters: * * * The object sought to be attained.”
Another consideration is “The consequences of a particular construction.” R.C. 1.49(E).
10.
{¶ 23} By the plain language of R.C. 2903.214(C)(1), the General Assembly
enacted the statute for the protection of endangered persons from menacing by stalking
by a respondent pursuant to R.C. 2903.211. In contrast, by the plain language of R.C.
3113.31(C)(1), the General Assembly enacted the statute for the protection of endangered
persons from domestic violence by a respondent. The General Assembly specifically
defined “domestic violence” in terms of a type of relationship between the person
protected and a respondent. R.C. 3113.31(A)(1).
{¶ 24} Although R.C. 2903.214 and 3113.31 appear to be very similar statutes at
first glance, we find the General Assembly clearly intended there to be two separate types
of endangered persons to be protected by the plain language of each statute: menacing by
stalking and domestic violence. See Morris v. Kaiser Engineers, Inc., 14 Ohio St.3d 45,
48, 471 N.E.2d 471 (1984). “Initially we note that R.C. 3113.31(G) states, ‘The remedies
and procedures provided in this section are in addition to, and not in lieu of, any other
available civil or criminal remedies.’” (Emphasis sic.) Felton v. Felton, 79 Ohio St.3d
34, 37, 679 N.E.2d 672 (1997). “R.C. 2903.214 and R.C. 3113.31 are separate tools in
Ohio’s comprehensive protection legislation and offer distinct forms of relief. The goal
of R.C. 2903.214 is to allow the police and the courts to act before a victim is harmed by
a stalker.” (Emphasis sic.) Irwin, 6th Dist. Lucas No. L-05-1113, 2006-Ohio-1633, at
¶ 15.
{¶ 25} In another distinction between the statutes, we find R.C. 2903.214(C)(1)
requires a petitioner to allege a violation of R.C. 2903.211, menacing by stalking, but is
11.
not required for a petitioner under R.C. 3113.31(C)(1). “A finding of domestic violence
is not required for a court to issue an SCPO.” Cyran v. Cyran, 152 Ohio St.3d 484, 2018-
Ohio-24, 97 N.E.3d 487, ¶ 20 (Kennedy, J., dissenting). “A petitioner may obtain such
an [CSPO] if he or she proves by a preponderance of the evidence that the person against
whom the order is directed engaged in behavior that constituted menacing by stalking
against the petitioner.” Martin v. Popson, 6th Dist. Ottawa No. OT-12-036, 2013-Ohio-
3956, ¶ 6; Irwin at ¶ 9; Krzystan v. Bauer, 6th Dist. Ottawa No. OT-15-039, 2017-Ohio-
858, ¶ 16.
{¶ 26} R.C. 2903.211(D)(11) also defines “family or household member” very
similarly to R.C. 3113.31(A)(3): “As used in this section: * * * any of the following:
(a) Any * * * who is residing or has resided with the person against whom the act
prohibited in [R.C. 2903.211(A)(1)] is committed: * * *. [or] (b) The natural parent of
any child of whom the person against whom the act prohibited in [R.C. 2903.211(A)(1)]
is committed is the other natural parent or is the putative other natural parent.” Once
again, the record does not show evidence of such relationships between appellant and the
minor victim, and the trial court reached the same conclusion.
{¶ 27} However, we find that the protections under R.C. 2903.211(A)(1) are
clearly not limited to domestic relations victims in relation to the respondent: “No person
by engaging in a pattern of conduct shall knowingly cause another person to believe that
the offender will cause physical harm to the other person or a family or household
12.
member of the other person or cause mental distress to the other person or a family or
household member of the other person.” (Emphasis added.)
{¶ 28} “Words and phrases shall be read in context and construed according to the
rules of grammar and common usage. Words and phrases that have acquired a technical
or particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly.” R.C. 1.42. We find that the phrase “family or household member” stated
throughout R.C. 2903.214 has not acquired the technical or particular meaning of R.C.
3113.31(A)(3). See State ex rel. Herman, 72 Ohio St.3d at 585, 651 N.E.2d 995. This
court has repeatedly interpreted a CSPO petitioned under R.C. 2903.214(C)(1) to apply
where the person protected bore no current or past residential or parental relationship to
the respondent under R.C. 3113.31(A)(3). Krzystan v. Bauer, 6th Dist. Ottawa No.
OT-15-039, 2017-Ohio-858, ¶ 3 (landlord); Tighe v. Kaiser, 6th Dist. Ottawa No.
OT-15-032, 2016-Ohio-1400, ¶ 17 (dog walker); Keller v. Knight, 6th Dist. Wood No.
WD-13-066, 2014-Ohio-2432, ¶ 2 (ex-boyfriend’s brother); Whalen v. Kasicki, 6th Dist.
Ottawa No. OT-13-009, 2014-Ohio-150, ¶ 2 (neighbor); Bower v. Long, 6th Dist. Lucas
No. L-12-1022, 2013-Ohio-5467, ¶ 4 (son-in-law); Martin, 6th Dist. Ottawa No.
OT-12-036, 2013-Ohio-3956, at ¶ 2 (horse trainer); Fondessy v. Simon, 6th Dist. Ottawa
No. OT-11-041, 2013-Ohio-3465, ¶ 3 (neighbor); Palmer v. Abraham, 6th Dist. Ottawa
No. OT-12-029, 2013-Ohio-3062, ¶ 2 (neighbor); Ensley v. Glover, 6th Dist. Lucas No.
L-11-1026, 2012-Ohio-4487, ¶ 3 (cousin); Pringle v. Orth, 6th Dist. Lucas No.
13.
L-10-1308, 2011-Ohio-2177, ¶ 2 (neighbor; reversed for lack of jurisdiction on other
grounds); Szymanski v. Trendel, 6th Dist. Lucas No. L-08-1110, 2009-Ohio-992, ¶ 10
(neighbor); Sobieniak v. Chapdelaine, 6th Dist. Lucas No. L-08-1173, 2008-Ohio-6403,
¶ 4 (neighbor).
{¶ 29} We reviewed the matter de novo and find appellee had standing under the
in pari materia doctrine to file a petition pursuant to R.C. 2903.214 for her custodial
grandson who was a minor.
{¶ 30} Appellant’s second assignment of error is not well-taken.
III. Conclusion
{¶ 31} On consideration whereof, this court finds that the trial court had subject-
matter jurisdiction and appellee had standing in this matter. The judgment of the Lucas
County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
14.
Baldwin v. Buckles
C.A. No. L-19-1013
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
CONCUR. _______________________________
JUDGE
Christine E. Mayle, J. _______________________________
CONCURS AND WRITES JUDGE
SEPARATELY.
MAYLE, J.
{¶ 32} I concur in the judgment of the majority, but disagree with its analysis. I
would affirm the trial court’s decision for a single, straightforward reason: R.C.
2903.214(A)(3) contains an obvious scrivener’s error. That is, it mistakenly refers to
“section 3113.31” instead of “section 2903.211” as defining “[f]amily or household
member” for purposes of R.C. 2903.214. (Emphasis added.) In my view, it is therefore
unnecessary to resort to any other exception or canon of statutory interpretation.
15.
{¶ 33} A “scrivener’s error” is a phrase more commonly associated with legal
documents and judicial opinions. But it is also an exception to the general rule requiring
the strict construction of statutes. See, e.g., In re Sorrell, 359 B.R. 167, 174
(Bankr.S.D.Ohio 2007) (recognizing the “scrivener’s error exception” and “the absurdity
doctrine” as distinct exceptions to the doctrine of strict construction). The hallmark of
the “scrivener’s error” exception is that “the meaning genuinely intended but
inadequately expressed must be absolutely clear[] otherwise we might be rewriting the
statute rather than correcting a technical mistake.” United States v. X-Citement Video,
Inc., 513 U.S. 64, 82, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (Scalia, J., dissenting).
{¶ 34} Although it did not use the exact phrase “scrivener’s error,” the Supreme
Court of Ohio recognized it as an exception to strict statutory construction in Stanton v.
Frankel Bros. Realty Co., 117 Ohio St. 345, 350, 158 N.E. 868 (1927), where it stated:
It is a well-settled rule that courts will not permit a statute to be defeated on
account of a mistake or error, where the intention of the Legislature can be
collected from the whole statute, or where one word has been erroneously
used for another, and where the context affords means of correction. The
strict letter of a statute must yield to the obvious intent.
In Stanton, the Supreme Court determined that the legislature had erroneously “use[d]
* * * the word ‘of’ when ‘or’ was the word which was clearly intended.” Id.1
1
Courts outside Ohio also recognize scrivener’s error as an exception to the general rule
of strict construction. For example, in a somewhat similar case, Oshtemo Charter Twp. v.
16.
{¶ 35} In my view, the rule announced in Stanton—which is undoubtedly the
scrivener’s error exception although not explicitly characterized as such—governs this
case because (1) “the intention of the Legislature can be collected from the whole of the
statute,” (2) “one [statutory reference] has been erroneously used for another,” and
(3) “the context affords means of correction.” Id. at 350.
1. The intention of the legislature can be collected from the
unambiguous words of R.C. 2903.214 and 2903.211.
{¶ 36} The wording of R.C. 2903.214 and 2903.211 is clear and unambiguous.
Based on the plain text of these corresponding statutes, it is patently obvious that a
“person to be protected by the protection order” under R.C. 2903.214(C) must include a
“family or household member” as defined by R.C. 2903.211(D)(11). Indeed, this is the
only conclusion that may be drawn from the plain wording of the statutes.
{¶ 37} Relevant here, R.C. 2903.211(A)(1) provides that a person is guilty of
“menacing by stalking” if he or she engages in a pattern of conduct that knowingly
causes “another person to believe that the offender will cause physical harm to the other
person or a family or household member of the other person * * *.” (Emphasis added.)
The statute provides the following express definition of “family or household member”:
Kalamazoo Cty. Road Comm., 792 N.W.2d 401, 404 (Mich.App.2010), the court applied
the “interpretive doctrine of statutory construction known as scrivener’s error” and found
that “[a] juxtaposition [of various statutes] makes clear that one of the statutory
references found in the last sentence of MCL 257.726(3) is the product of a clerical error
* * *.” See also Diorio v. Hines Road, LLC, R.I. No. 2018-207, 2020 WL 1501920, *6
(Mar. 30, 2020) (“It is patently clear * * * that the use of the word ‘appropriation’ [in a
particular statute] is a scrivener’s error and should in fact read ‘appropriate.’”).
17.
(D) As used in this section:
***
(11) “Family or household member” means any of the following:
(a) Any of the following who is residing or has resided with the
person against whom the act prohibited in division (A)(1) of this section is
committed:
(i) A spouse, a person living as a spouse, or a former spouse of the
person;
(ii) A parent, a foster parent, or a child of the person, or another
person related by consanguinity or affinity to the person;
(iii) A parent or a child of a spouse, person living as a spouse, or
former spouse of the person, or another person related by consanguinity or
affinity to a spouse, person living as a spouse, or former spouse of the
person.
R.C. 2903.211(D)(11).
{¶ 38} Appellee filed for a civil stalking protection order under R.C. 2903.214
because, as alleged, the appellant had committed menacing by stalking under R.C.
2903.211 by engaging in a pattern of conduct that caused her to believe that appellant
would physically harm her grandson, whom she lived with. The alleged victim—her
grandson—is patently a “family or household member” for purposes of the menacing by
stalking offense. R.C. 2903.211(D)(11).
18.
{¶ 39} Appellee filed for the civil protection order under R.C. 2903.214(C)(1),
which states that a person may seek a civil protection order against an alleged stalker by
filing a petition containing, among other things, “[a]n allegation that the respondent * * *
engaged in a violation of section 2903.211 of the Revised Code [i.e., menacing by
stalking] against the person to be protected by the protection order * * *.” (Emphasis
added.) The “person to be protected by the protection order” may be (1) the petitioner, if
the petitioner files for relief on his or her own behalf, or (2) a “family or household
member” of the petitioner, if the petitioner is a “parent or adult household member” of
that person. R.C. 2903.214(C).
{¶ 40} Given that R.C. 2903.214(C) describes the process by which victims of
menacing by stalking under R.C. 2903.211 may seek a protective order, and given that
victims of menacing by stalking under R.C. 2903.211 expressly include individuals who
believe that a “family or household member” as defined by R.C. 2903.211(D)(11) will be
injured by the offender, it is therefore patently obvious that a “person to be protected” by
a civil stalking protection order under R.C. 2903.214(C) must include a “family or
household member” as defined by R.C. 2903.211(D)(11). This is the only conclusion that
can be reached when the plain and unambiguous words of R.C. 2903.211 and 2903.214
are read together—thereby satisfying the first prong of Stanton.
19.
2. One statutory reference has been erroneously used for another,
and the context affords means of correction.
{¶ 41} Turning to the second prong of Stanton, because it is obvious that a “person
to be protected” by a civil protection under R.C. 2903.214(C) must include a “family or
household member” as defined by R.C. 2903.211(D)(11), it is also obvious that the
General Assembly erroneously referred to “section 3113.31” instead of “section
2903.211” when drafting the definition of “[f]amily or household member” in R.C.
2903.214(A)(3). That is, “one [statutory reference] has been erroneously used for
another.” Stanton, 117 Ohio St. at 350, 158 N.E. 868.
{¶ 42} To reinforce this conclusion, R.C. 3113.31 concerns domestic violence
protection orders, which—unlike civil stalking protection orders under R.C. 2903.214—
protect victims of “domestic violence.” Under R.C. 3113.31(A)(1), “[d]omestic
violence” is the “occurrence of one or more [prohibited] acts against a family or
household member.” Because “domestic violence” is restricted to offenses against
someone having a familial or residential relationship with the respondent, the
corresponding definition of “family or household member” under R.C. 3113.31(A)(3) is
similarly restricted. In contrast, the underlying offense in this case, menacing by stalking
under R.C. 2903.211, is not so limited, nor is its definition of “family or household
member” under R.C. 2903.211(D)(11) so restricted.
{¶ 43} Finally, “the context affords means of correction.” Stanton at 350. The
reference to “section 3113.31” in R.C. 2903.214(A)(3) is a scrivener’s error that should
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be read as “section 2903.211” instead. That is, the legislature “use[d] * * * [3113.31]
when [2903.211] is the [statute] which was clearly intended.” Id.{¶ 44} For these reasons, I agree that the trial court’s decision should be affirmed.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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