Partin v. Morrison , 2015 Ohio 4740 ( 2015 )

[Cite as Partin v. Morrison, 2015-Ohio-4740.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BROWN COUNTY
LIBERTY PARTIN, :
CASE NO. CA2015-01-003
Petitioner-Appellee, :
OPINION
: 11/16/2015
- vs -
:
JOSH MORRISON, :
Respondent-Appellant. :
CIVIL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 2014-0656
Liberty Partin, 1770 Crosstown Road, Williamsburg, Ohio 45176, petitioner-appellee, pro se
T. David Burgess Co., L.P.A., T. David Burgess, 110 North Third Street, Williamsburg, Ohio
45176, for respondent-appellant
M. POWELL, J.
{¶ 1} Respondent-appellant, Josh Morrison, appeals a decision of the Brown County
Court of Common Pleas issuing a domestic violence civil protection order (DVCPO) against
him in favor of petitioner-appellee, Liberty Partin.
{¶ 2} The parties were in a relationship and lived together for about one and one-half
years. They were not married. The relationship ended in the spring of 2014. Petitioner is
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now in a relationship with Charles Richey. Petitioner and Richey do not live together. Richey
lives with his mother.
{¶ 3} On September 25, 2014, petitioner filed for and was granted an ex parte
temporary DVCPO against respondent. The petition alleged that during their relationship,
respondent damaged petitioner's car, threw her belongings out in the yard, broke three of her
phones, and threatened to put his hands on her. The petition also alleged that respondent
now harasses Richey, threatening him and his family. The petition further alleged that
petitioner went to the sheriff's office on September 24, 2014, after respondent called Richey
and told him he was "coming to his house and he was packing. After that, me and [Richey]
went to [Richey's] house and [respondent] was outside in a silver Chrysler 300 honking the
horn."
{¶ 4} On October 6, 2014, a full hearing was held before a magistrate. At the
hearing, both parties, proceeding pro se, testified. Richey and his mother testified on behalf
of petitioner. Respondent's mother testified on his behalf. At the conclusion of the hearing,
the magistrate issued a five-year DVCPO. The DVCPO only named petitioner as a protected
person. Respondent filed objections to the magistrate's decision. On December 10, 2014,
the trial court overruled the objections and adopted the magistrate's decision.
{¶ 5} Respondent appeals, raising one assignment of error:
{¶ 6} THE TRIAL COURT ERRED BY ADOPTING A DOMESTIC VIOLENCE CIVIL
PROTECTION ORDER THAT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE PRESENTED IN THIS MATTER.
{¶ 7} A petition for a DVCPO is governed by R.C. 3113.31. Pursuant to that statute,
in order to grant a DVCPO, a "trial court must find that petitioner has shown by a
preponderance of the evidence that petitioner or petitioner's family or household members
are in danger of domestic violence." Felton v. Felton, 79 Ohio St.3d 34 (1997), paragraph
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two of the syllabus. For the purpose of this case, domestic violence "means the occurrence
of one or more of the following acts against a family or household member: [p]lacing another
person by the threat of force in fear of imminent serious physical harm or committing a
violation of [R.C.] 2903.211 [menacing by stalking]." R.C. 3113.31(A)(1)(b).
{¶ 8} Before granting a DVCPO, the trial court must hold a full hearing. R.C.
3113.31(E)(1). The petition itself is not evidence and its contents cannot be considered by
the trial court in granting the DVCPO. McIntyre v. Johnson-Estes, 8th Dist. Cuyahoga No.
95445, 2011-Ohio-1696, 2011 WL 1327392, *4, citing Felton at 43 (a pleading is not
admissible into evidence at a hearing to prove a party's allegations and must not be
considered as evidence by the court).
{¶ 9} A trial court's decision to grant or deny a DVCPO will not be reversed where
such decision is supported by the manifest weight of the evidence. Caramico v. Caramico,
12th Dist. Clermont No. CA2015-03-025, 2015-Ohio-4232, ¶ 26. Under a manifest weight
challenge, a judgment will not be reversed as long as the judgment is supported by some
competent, credible evidence going to all essential elements of the case. Id. The appellate
court must be guided by a presumption that the trial court's factual findings are correct
because the trial judge is best able to view the witnesses and observe their demeanor and
use these observations in weighing the credibility of the proffered testimony. See McBride v.
McBride, 12th Dist. Butler No. CA2011-03-061, 2012-Ohio-2146.
{¶ 10} The trial court issued the DVCPO on the grounds that "[r]ecently, the
Respondent texted a message about shooting the Petitioner" and that "[t]he Respondent has
also been calling and texting the Petitioner after being told not to do so." Specifically, the trial
court made two separate findings in support of the issuance of the DVCPO. The first finding
related to a threat made to petitioner. The second finding, although not concerned with the
content of the communications, emphasized their repeated, uninvited nature.
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{¶ 11} The trial court's finding that respondent sent a text threatening to shoot
petitioner was apparently relevant to the "placing another person by the threat of force in fear
of imminent serious physical harm" component of "domestic violence." Under R.C. 3113.31,
the threat of force must place a party in fear of both imminent and serious physical harm.
Bargar v. Kirby, 12th Dist. Butler No. CA2010-12-334, 2011-Ohio-4904, ¶ 13. Threats of
violence constitute domestic violence under the statute if the fear resulting from those threats
is reasonable. Hyde v. Smith, 12th Dist. Butler No. CA2014-09-193, 2015-Ohio-1701, ¶ 12.
In order to grant a civil protection order, past acts alone are not enough and there must be
some evidence of current domestic violence, as set forth in the statute. Id.{¶ 12} With regard to this threat to shoot petitioner, there was no evidence presented
at the hearing that respondent ever texted petitioner with a threat to shoot her. The "text
message" referred to by the trial court must actually refer to a post on respondent's
Facebook page, apparently posted five days before the hearing, which states: "There is two
bitches. One, Charles [Richey] or Liberty [petitioner], yeah, I guess I tried to shoot them the
other night, when I worked nine 'till seven in the morning, laugh my ass off. People are
crazy."
{¶ 13} Respondent testified he works Sunday through Friday, 9:00 p.m. to 7:00 a.m.
During oral arguments before this court, respondent's counsel characterized this Facebook
post as respondent's sarcastic denial of the claim he had tried to shoot petitioner and Richey
because he had an alibi, i.e., he was at work. Although the written word as opposed to the
spoken word may not fully convey this sarcastic context, it is a reasonable interpretation of
the Facebook post.
{¶ 14} This Facebook post does not appear to be a threat to shoot anyone, but rather
appears to be a comment about a past event or claim, whether real or fabricated. Neither
Richey nor petitioner testified respondent tried to shoot them. Nor did they testify that
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respondent directly and personally threatened to shoot them. There is no evidence, nor was
it ever alleged, that respondent had a gun in the presence of petitioner or Richey. While
there was testimony about the Facebook post, there was none concerning the event referred
to in the Facebook post.
{¶ 15} Petitioner testified at the hearing about respondent's other threats to physically
harm her. Petitioner testified that six or seven months before the hearing, when she and
respondent were dating, respondent threatened to hit her and told his mother to hit her.
However, respondent "didn't put his hands on me or anything." There is no evidence in the
record respondent ever physically harmed petitioner. The trial court ostensibly discounted
this testimony as it did not cite the incident as a ground for the issuance of the DVCPO.
{¶ 16} Petitioner also testified that she had "been getting threatening phone calls" and
texts from respondent. Petitioner did not testify, nor was evidence introduced, about the
specific content of these phone calls or texts. When asked by the magistrate whether "there
[were] any threats against you, in any of those text messages," petitioner replied, "The ones
we have, no."
{¶ 17} Petitioner also testified that Richey, her boyfriend, received a phone call from
respondent threatening to burn down Richey's house and warning that respondent had a
gun.1 However, the call was addressed to Richey, and not to petitioner. Furthermore,
testimony at the hearing indicates that while Richey lives with his mother, petitioner does not
live with them. As stated earlier, Richey is not a protected person under the DVCPO. In
addition, because Richey is not a "family or household member" of respondent, as defined by
R.C. 3113.31(A)(3), neither Richey nor petitioner are entitled to the issuance of a DVCPO
based upon threats made to Richey. In any event, the trial court likewise ostensibly
1. Richey and his mother also testified that respondent either called or spoke to Richey, threatening to burn
Richey's house and killing Richey and his family.
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discounted this testimony as it did not base the issuance of the DVCPO upon this incident.
{¶ 18} At the end of petitioner's direct examination and following her testimony
regarding respondent's phone calls, texts, and Facebook postings, the magistrate asked
petitioner, "do you fear for your safety, from [respondent]?" Petitioner replied, "Yes." There
was no other testimony or evidence as to petitioner's fear with regard to respondent.
Petitioner did not testify or present evidence she feared imminent serious physical harm.
Furthermore, there was no evidence as to the specific content of these communications,
other than the Facebook "shooting" post, to permit a finding that they were reasonably
sufficient to place petitioner in fear of imminent serious physical harm.
{¶ 19} The trial court also issued the DVCPO on the ground that respondent had been
calling and texting petitioner after being told not to do so. As stated earlier, the texts
themselves were not introduced into evidence and there was no testimony as to the specific
content of these text messages and phone calls. Because the trial court characterized these
calls and texts as repeated and uninvited, but not as threatening, we assume the trial court
considered them as evidence that respondent had engaged in menacing by stalking, and not
as threats of force placing petitioner in fear of imminent serious physical harm.2
{¶ 20} As set forth above, R.C. 3113.31 defines domestic violence as including the
commission of menacing by stalking in violation of R.C. 2903.211.
{¶ 21} With regard to menacing by stalking, R.C. 2903.211(A)(1) provides in relevant
part that "[n]o person by engaging in a pattern of conduct shall knowingly cause another
person to believe that the offender will cause * * * mental distress to the other person."
"Pattern of conduct" is defined as "two or more actions or incidents closely related in time[.]"
2. We acknowledge that the Facebook "shooting" post may also serve as part of the basis to establish the
"menacing by stalking" component of "domestic violence." As we have already discussed that post in some
detail, we will not discuss it further as it relates to the establishment of menacing by stalking.
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R.C. 2903.211(D)(1). "Mental distress" is defined in R.C. 2903.211(D)(2) as:
(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.
While petitioner testified she feared for her safety because of respondent's conduct, she did
not testify or present evidence she is either suffering from temporary substantial incapacity,
or sought or is in need of mental health treatment as a result of respondent's conduct.
{¶ 22} A reviewing court is required to uphold a DVCPO as long as the record, as a
whole, contains some evidence from which the trier of fact could have reached its ultimate
factual conclusions. McGuire v. Sprinkle, 12th Dist. Warren No. CA2006-06-069, 2007-Ohio-
2705, ¶ 19. We are cognizant that petitioner acted pro se in this proceeding. No doubt, with
the assistance of counsel, petitioner could have more effectively presented her evidence in
accordance with the statutory requirements for the issuance of a DVCPO.
{¶ 23} However, upon a thorough review of the evidence presented at the hearing,
and in light of all of the foregoing, we find that the record does not support the grounds
specifically relied upon by the trial court in issuing the DVCPO. The trial court's grounds for
the issuance of the DVCPO were restricted to a specific Facebook post and the repeated and
uninvited text messages and phone calls. Hence, the trial court discounted all other
testimony as a basis for the DVCPO and we defer to the trial court's determination in this
regard. The trial court was in the best position to "view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony." Id.{¶ 24} We therefore find that the trial court, given the nature of the evidence
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presented, could not reasonably find by a preponderance of the evidence that petitioner was
in danger of domestic violence as defined by R.C. 3113.31, and thus the issuance of the
DVCPO was against the manifest weight of the evidence.
{¶ 25} Respondent's assignment of error is sustained.
{¶ 26} Judgment reversed and we hereby order the DVCPO herein vacated.
PIPER, P.J., and S. POWELL, J., concur.
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