Tupps v. Jansen , 2013 Ohio 1403 ( 2013 )

[Cite as Tupps v. Jansen, 2013-Ohio-1403.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JACQUELINE TUPPS : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Petitioner-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2012-COA-26
WILLIAM JANSEN :
:
Respondent-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Ashland County Court
of Common Pleas, Case No. 12-CPO-074
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 4, 2013
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
HOWARD W. GLICK JOHN DILTS
23 West Main Street 28 South Park Street
Ashland, OH 44805 Mansfield, OH 44902
[Cite as Tupps v. Jansen, 2013-Ohio-1403.]
Gwin, J.
{¶1} Respondent-Appellant William Jansen appeals the June 19, 2012 judgment
entry of the Ashland County Court of Common Pleas to affirm and adopt the
Magistrate’s Decision of March 26, 2012, granting a Civil Stalking Protection Order
(“CSPO”) against him for the protection of Petitioner-Appellee Jacqueline Tupps and her
husband Jason Tupps.
FACTS & PROCEDURAL HISTORY
{¶2} On February 28, 2012, Petitioner-Appellee Jacqueline Tupps filed a
Petition for an Ex Parte Civil Stalking Protection order against Respondent-Appellant
William Jansen. The trial court granted the ex parte CSPO. A full hearing on the
petition was held on March 9, 2012, before the magistrate. At the hearing, the
magistrate heard testimony from Richard Rowe, Jacqueline Tupps, and William Jansen.
{¶3} Appellant is Appellee’s uncle. There are three houses on Appellee’s street.
Appellee’s house is the furthest down the lane from the county road. Her house is
approximately two to three hundred yards away from the next house on the lane, which
is the house where Appellant’s daughter lives.
{¶4} Appellee testified to the following incidents: On January 12, 2012 and
February 2, 2012, Appellant drove at a high rate of speed down her road and was
spinning his tires. On January 31, 2012, Appellant rode a four-wheeler to Appellee’s
house and was going so fast he spun gravel. Appellant drove by Appellee’s parents’
house on February 20, 2012, and pointed at the house while Appellee was walking in
the garage. Mr. Rowe, Appellee’s father, told her about two threatening phone calls
made by Appellant on February 17, 2012. On February 27, 2012, Appellant stopped his
Ashland County, Case No. 2012-COA-26 3
truck at the end of Appellee’s lane, was fifty to seventy-five feet away from her, got out
of his truck and pointed at her for approximately twenty seconds. Appellee testified
Appellant had no reason to be past his daughter’s house.
{¶5} Appellee testified she was petrified by Appellant’s actions and because of
the incidents, she is afraid to be alone, had a security system installed, won’t leave her
home if she is alone, and is afraid to drive in and out of her driveway.
{¶6} Appellee’s father, Richard Rowe, testified that on February 17, 2012,
Appellant first called the cell phone of Rowe’s wife and, while on speakerphone,
threatened to shoot Appellee and her husband twice during the conversation. Appellant
referred to Appellee and her husband with profanity instead of by name. During a
second phone call to Rowe directly on the same day, Appellant said he was going to
shoot “Tupps” (T. at 12).
{¶7} Appellant admitted to driving past Appellee’s house, but stated he was
looking for his mother or getting his belongings out of a garage where he had them
stored. He stated he did take a four-wheeler up Appellee’s driveway, but only did so
because he was concerned another neighbor was going to shoot his daughter’s dog.
Appellant was asked twice if he had ever threatened Appellee or her husband and each
time responded he never threatened them with a gun.
{¶8} Based on the preponderance of the evidence, the magistrate found
Appellee established Appellant engaged in a pattern of conduct that knowingly caused
Appellee to believe Appellant would cause her physical harm and caused Appellee to
suffer mental distress. The magistrate granted the CSPO on March 26, 2012. The
CSPO was effective until September 9, 2012.
Ashland County, Case No. 2012-COA-26 4
{¶9} Appellant filed an objection to the magistrate’s decision on April 2, 2012.
The trial court issued a judgment entry on April 4, 2012, ordering the preparation of a
transcript and giving the parties fourteen days from the filing of the transcript to file a
memorandum regarding the objections. Appellant filed a supplemental objection to the
magistrate’s decision on May 30, 2012, after the transcript was filed on May 16, 2012.
The trial court issued a judgment entry on June 19, 2012, overruling Appellant’s
objections and adopting the CSPO issued on March 26, 2012.
{¶10} Appellant now raises the following assignments of error on appeal:
{¶11} “THE TRIAL COURT ERRED IN FINDING BY A PREPONDERANCE OF
THE EVIDENCE THAT APPELLANT HAS ENGAGED IN THE OFFENSE OF
MENACING BY STALKING AGAINST APPELLEE AND SUCH FINDING IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶12} Appellant argues the trial court’s decision to grant the CSPO was not
supported by the manifest weight of the evidence. We disagree.
{¶13} Initially, we note some courts have held once a protection order expires,
an appeal of that protection order is moot. See, e.g., Devine-Riley v. Clellan, 10th Dist.
No. 11AP-112, 2011-Ohio-4367. However, several courts have found an unspecified
exception to the mootness doctrine applies when an appeal is taken from an expired
CSPO. Daugherty v. Cross, 5th Dist. No. 2005-CA-0078, 2006-Ohio-5545; Fortney v.
Willhoite, 11th Dist. No. 2011-L-120, 2012-Ohio-3024; Wilder v. Perna, 174 Ohio
App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095 (8th Dist.). Accordingly, we will address
the merits of Appellant’s appeal even though the CSPO expired on September 9, 2012.
Ashland County, Case No. 2012-COA-26 5
{¶14} R.C. 2903.214 provides in pertinent part: “A person may seek relief under
this section for the person, or any parent or 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.” To be entitled to a civil stalking protection order, the petitioner must
show by a preponderance of the evidence that the respondent engaged in menacing by
stalking, a violation of R.C. 2903.211, against the person seeking the order. See
Tumblin v. Jackson, 5th Dist. No. 06CA002, 2006-Ohio-3270, ¶ 17.
{¶15} R.C. 2903.211(A), “menacing by stalking,” states that “[n]o person by
engaging in a pattern of conduct shall knowingly cause another to believe that the
offender will cause physical harm to the other person or cause mental distress to the
other person.”
{¶16} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court and will not be reversed absent an abuse of discretion.
Olenik v. Huff, 5th Dist. No. 02-COA-058, 2003-Ohio-4621, at ¶ 21. To find an abuse of
discretion, this court must determine that the trial court’s decision was unreasonable,
arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Further, a judgment
supported by some competent, credible evidence will not be reversed by a reviewing
court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).
{¶17} Appellant first argues Appellee failed to prove by a preponderance of the
evidence that Appellant engaged in a pattern of conduct because there was only one
telephone conversation made in two parts and the only alleged threat was conditional.
Ashland County, Case No. 2012-COA-26 6
{¶18} R.C. 2093.211 provides:
(D) As used in this section:
(1) “Pattern of conduct” means two or more actions or incidents
closely related in time, whether or not there has been a prior
conviction based on any of those actions or incidents.
{¶19} “R.C. 2903.211(D) (1) does not require that a pattern of conduct be proved
by events from at least two different days. Arguably, a pattern of conduct could arise
out of two or more events occurring on the same date, provided that there are sufficient
intervals between them.” State v. Scruggs, 136 Ohio App.3d 631, 634, 737 N.E.2d 574(2nd Dist. 2000). The statute does not define the term “closely related in time,” but case
law suggests the trier of fact should consider the evidence in the context of all
circumstances of the case. Middletown v. Jones, 167 Ohio App.3d 679, 2006-Ohio-
3465, 856 N.E.2d 1003 (12th Dist.). The trier of fact is best able to decide on a case-
by-case basis. State v. Dario, 106 Ohio App.3d 232, 665 N.E. 2d 759 (1995). Trial
courts may take every action into consideration, even if some actions in isolation would
not seem particularly threatening. Guthrie v. Long, 10th Dist. No. 04AP-913, 2005-
Ohio-1541.
{¶20} In this case, the trial court found the phone call to the cell phone of Rowe’s
wife and the subsequent phone call to Rowe himself to be two events on the same date
with sufficient intervals between them. Further, the trial court found Appellant’s actions
of driving past Appellee’s home at a high rate of speed, exiting his vehicle near her
house and pointing at her when he had no reason to be near her home to be
threatening, when taken cumulatively. Based on the totality of the circumstances in this
Ashland County, Case No. 2012-COA-26 7
case, we find no abuse of discretion in determining these incidents established two or
more incidents closely related in time.
{¶21} Appellant further argues he did not “knowingly” cause harm or mental
distress to Appellee and emphasizes he never had direct contact with Appellee. We
disagree. “A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such circumstances
probably exist.” R.C. 2901.22(B). Further, “the weight to be given to the evidence and
the credibility of the witnesses is primarily a matter for the trier of fact . . . because the
trier of fact is in the best position to view the witnesses and consider their demeanor
and truthfulness.” Jenkins v. Jenkins, 10th Dist. No. 06AP-652, 2007-Ohio-422, ¶14.
{¶22} The evidence presented at the hearing provided competent, credible
evidence from which the trial court could have determined Appellant acted knowingly.
Rowe testified there was an ongoing dispute between Appellant and Appellee regarding
property in the area. During Appellant’s testimony, he was asked twice whether he
threatened Appellee or her husband. Appellant did not deny making threats, only that a
gun was not mentioned. Further, the trial court believed Rowe’s testimony regarding
the threatening nature of the two phone calls and Appellee’s version of the incident on
February 27, 2012, finding that the action of Appellant stopping at the end of the
driveway, standing there and pointing at her from approximately fifty feet away, was
threatening based upon the prior phone calls made by Appellant threatening to shoot
Appellee and her husband. The trial court further noted the cumulative effect of the
encounters of Appellant driving by Appellee’s home at a high rate of speed. Appellee
Ashland County, Case No. 2012-COA-26 8
testified she is afraid to stay alone, had a security system installed and is afraid to drive
in and out of her driveway due to Appellant’s actions.
{¶23} Accordingly, competent, credible evidence exists in the record from which
the trial court could have determined Appellant acted knowingly for purposes of R.C.
2903.211.
{¶24} Based on the foregoing, we find no abuse of discretion by the trial court to
overrule Appellant’s objections to the CSPO. Appellant’s Assignment of Error is
overruled.
{¶25} The judgment of the Ashland County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P. J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. JOHN W. WISE
WSG:clw 0307
[Cite as Tupps v. Jansen, 2013-Ohio-1403.]
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JACQUELINE TUPPS :
:
Petitioner-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
WILLIAM JANSEN :
:
:
Respondent-Appellant : CASE NO. 2012-COA-26
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Ashland County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY