Sweet v. Hunt , 2014 Ohio 631 ( 2014 )

[Cite as Sweet v. Hunt, 2014-Ohio-631.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
DIANA L. SWEET :
: Appellate Case No. 2013-CA-37
Petitioner-Appellee :
: Trial Court Case No. 13-SP-12
v. :
:
DALE R. HUNT : (Civil Appeal from Common Pleas
: (Court, Domestic Relations)
Respondent-Appellant :
:
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OPINION
Rendered on the 21st day of February, 2014.
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JENNIFER E. MARIETTA, Atty. Reg. #0089642, 77 West Main Street, Xenia, Ohio 45385
Attorney for Petitioner-Appellee
JOSEPH W. STADNICAR, Atty. Reg. #0046851, and JUSTIN M. McMULLEN, Atty. Reg.
#0088217, 3636 Dayton-Xenia Road, Beavercreek, Ohio 45432
Attorneys for Respondent-Appellant
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HALL, J.,
{¶ 1} Dale R. Hunt appeals from the trial court’s issuance of a civil-stalking protection
order (CSPO) against him.
[Cite as Sweet v. Hunt, 2014-Ohio-631.]
{¶ 2} Hunt advances two assignments of error. First, he contends the trial court erred in
denying his motions for a continuance of a CSPO hearing. Second, he claims the evidence does
not support the trial court’s issuance of a CSPO.
{¶ 3} The record reflects that appellee Diana Sweet petitioned for a CSPO on February
7, 2013. (Doc. #1). The petition alleged that Hunt had engaged in conduct constituting menacing
by stalking. The conduct involved Hunt contacting her against her will after they quit dating and
making statements that scared her and caused her to question his stability. (Id.). During an ex
parte hearing, Sweet testified that Hunt’s conduct made her “very nervous” and “afraid.” (Ex
Parte Hearing Tr. at 5). The trial court issued an ex parte CSPO the same day she filed her
petition. The ex parte order scheduled a February 14, 2013 full hearing on Sweet’s petition.
(Doc. #6).
{¶ 4} On February 13, 2013, Hunt moved to continue the hearing scheduled for the
following day on the grounds that he only recently had retained counsel. (Doc.#15). The trial
court sustained the motion and rescheduled the hearing for March 1, 2013. (Doc. #16). On
February 20, 2013, the trial court sustained a discovery motion filed by Hunt and continued the
hearing until April 18, 2013. (Doc. #19). On April 17, 2013, Hunt moved to continue the hearing
scheduled for the following day. (Doc. #24). The basis for the motion was that related criminal
charges were pending against Hunt and that a jury trial in the criminal case was scheduled for
April 25, 2013. Although Hunt’s motion did not explicitly say so, his concern appears to have
been that testimony in the CSPO could be used against him in the upcoming criminal trial. The
trial court sustained the motion and rescheduled the hearing for May 28, 2013. (Doc. #25). Its
entry noted that no additional continuances would be granted. Due to a “scheduling error,”
however, the trial court subsequently continued the CSPO hearing until May 31, 2013. (Doc.
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#28).
{¶ 5} On May 16, 2013, Hunt moved to continue the hearing again. The basis for the
motion was that his related criminal charges remained pending and that his criminal trial had
been rescheduled for June 13, 2013. (Doc. #29). The trial court denied this motion. (Doc. #31).
On May 23, 2013, Hunt again moved for a continuance, claiming he had a previously scheduled
appointment at the Cleveland Clinic. (Doc. #32). Attached to the motion was an unauthenticated
May 16, 2013 print out of what appeared to be a scheduled appointment at the Cleveland Clinic.
The trial court denied this motion the same day, finding it “not well taken[.]” (Doc. #33).
{¶ 6} The May 31, 2013 hearing proceeded as scheduled, and Hunt appeared for it. At
the outset, Hunt’s counsel orally requested a continuance, citing the existence of the pending
criminal case. The trial court denied the motion. It explained: “May 14th you requested a
continuance that we denied, and I am, in fact, going to deny this one, also. We need to have this
hearing. This is not a criminal matter. In this case your client can choose to testify or choose not
to testify, and I assume you have spoken to him about the ramifications of testifying?” (Full
Hearing Tr. at 3). Hunt’s counsel responded affirmatively, and only Sweet subsequently testified.
{¶ 7} After the hearing, the trial court issued a CSPO that restricted Hunt’s ability to be
near Sweet or to communicate with her. (Doc. #37). In support, it found that “the Respondent has
knowingly engaged in a pattern of conduct that caused Petitioner to believe that the Respondent
will cause physical harm or cause or has caused mental distress[.]” The trial court also found that
its order was “equitable, fair, and necessary to protect” Sweet from stalking offenses. This appeal
followed.
{¶ 8} In his first assignment of error, Hunt challenges the trial court’s denial of his
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continuance motions. He argues that the denial of the motion based on the pending criminal case
denied him a meaningful opportunity to defend himself. He maintains that he could not testify
because doing so would have waived his Fifth Amendment right against self-incrimination. He
claims that the criminal charges subsequently were dismissed and that he will be able to testify at
a new hearing on remand. He also contends granting a continuance would not have prejudiced
Sweet.
{¶ 9} We review the trial court’s denial of a continuance for an abuse of discretion. In
re M.H., 2d Dist. Montgomery No. 25084, 2012-Ohio-5216, ¶ 31. The phrase “abuse of
discretion” suggests an attitude that is unreasonable, arbitrary or unconscionable. Id. “It is to be
expected that most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.{¶ 10} We see no abuse of discretion here. Under R.C. 2903.214(D)(2)(a), a full CSPO
hearing is to be held “within ten court days” of the issuance of an ex parte order. The statute
authorizes a continuance for specified reasons. The only one potentially applicable is “for other
good cause.” R.C. 2903.214(D)(2)(a)(iv). As noted above, the trial court continued the CSPO
hearing several times. The trial court specifically granted one continuance due to Hunt’s pending
criminal case. When it denied another continuance due to the pending criminal matter, the trial
court had no way of knowing when the charges would be resolved because Hunt had waived a
speedy trial. Ultimately, more than 100 days elapsed between the trial court’s issuance of the ex
parte order and the full CSPO hearing. Under these circumstances, we see no abuse of
discretion in the trial court’s denial of another continuance.
{¶ 11} Hunt’s argument about the Fifth Amendment and the denial of his right to defend
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himself fails to persuade us otherwise. “[T]he Fifth Amendment protection against compulsory,
self-incriminating testimony does not extend to prohibit civil litigation while the possibility of
criminal prosecution exists.” Walker v. State Medical Bd. of Ohio, 10th Dist. Franklin No.
01AP-791, 2002-Ohio-682, 2002 WL 243318 at *4; see also State ex rel. Verhovec v. Mascio, 81
Ohio St.3d 334, 336, 691 N.E.2d 282 (1998). In Wirtz v. Wirtz, 7th Dist., Mahoning No.
99-CA-57, 2000 WL 1486652 (Sept. 27, 2000), the Seventh District rejected an argument nearly
identical to Hunt’s, finding no abuse of discretion in the denial of a motion to continue a CSPO
hearing while related criminal charges were pending. We reach the same conclusion here. The
Fifth Amendment does not shield a party from appearing or defending in a civil action. Tedeschi
v. Grover, 39 Ohio App.3d 109, 111, 529 N.E.2d 480, 482 (10th Dist.1988). “Accordingly, [a]
defendant may not interpose whatever Fifth Amendment privilege he may enjoy as a witness to
obtain a continuation of the litigation.” Id. “[M]erely because [a] defendant [may have] felt
required to appear and defend does not, of itself, violate any Fifth Amendment guarantee.” Id.Therefore, the first assignment of error is overruled.
{¶ 12} In his second assignment of error, Hunt claims Sweet failed to prove that he
engaged in menacing by stalking. Specifically, he contends she presented insufficient evidence
that she feared he would cause her physical harm or that he caused her mental distress.
{¶ 13} To grant a CSPO, the trial court was required to find, by a preponderance of the
evidence, that Hunt had violated R.C. 2903.211(A)(1), which provides: “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 cause mental distress to the other person.” A “pattern
of conduct” requires two or more actions closely related in time. R.C. 2903.211(D)(1). “In
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determining what constitutes a pattern of conduct, courts must take every action of the
respondent into consideration, even if some of the actions in isolation do not seem particularly
threatening.” Lewis v. Jacobs, 2d Dist. Montgomery No. 25566, 2013-Ohio-3461, ¶ 10. “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).
“Physical harm” means “any injury, illness, or other physiological impairment, regardless of its
gravity or duration.” R.C. 2901.01(A)(3). “Mental distress” means a mental illness or condition
“that involves some temporary substantial incapacity” or “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.” R.C. 2903.211(D)(2).
{¶ 14} The mental distress required for a menacing-by-stalking violation need not
always be incapacitating or debilitating. Taylor v. Taylor, 2d Dist. Miami No. 2012-CA-14,
2012-Ohio-6190, ¶ 16; see also Howard v. Wilson, 186 Ohio App.3d 521, 2010-Ohio-1125, 928
N.E.2d 1180, ¶ 11 (2d Dist.). “It is the duty of the trier of fact to determine whether a victim
suffered mental distress as a result of the offender’s actions.” Id. “In making this determination,
the trial court ‘may rely on its knowledge and experience in determining whether mental distress
has been caused.’” Id., quoting Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, 832
N.E.2d 757, ¶ 18 (4th Dist.). This court has applied an abuse-of-discretion standard to a trial
court’s decision whether to grant a civil protection order. See, e.g., Walker v. Edgington, 2d Dist.
Clark No. 07-CA-75, 2008-Ohio-3478, ¶ 24; Bryant v. Spear-Hardy, 2d Dist. Montgomery No.
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23449, 2010-Ohio-1903, ¶ 23.
{¶ 15} The only witness at the CSPO hearing was Sweet. Hunt claims she failed to
establish entitlement to a protection order because she admitted that he never caused or
threatened physical harm and because she did not demonstrate the existence of mental distress.
With regard to mental distress, Hunt contends Sweet did not testify about any substantial
incapacity or condition normally requiring mental-health treatment. He further argues that she did
not testify about believing his actions would continue or about making any lifestyle changes due
to his behavior. He claims she did not mention fearing for her safety or being upset in her reports
to the police. He characterizes her as being “merely annoyed by a despondent ex-lover who was
unprepared to let go of a terminated romantic relationship.” (Appellant’s brief at 8).
{¶ 16} Upon review, we conclude that the trial court reasonably could have relied on
Sweet’s testimony to find, by a preponderance of the evidence, that Hunt had engaged in
menacing by stalking. Sweet testified that she met Hunt while she was working at Walmart. He
frequented the store as a customer, and they became friends. (Full Hearing Tr. at 5-6). A dating
relationship developed in the summer of 2012. (Id. at 6). Sweet tried to end the relationship in
January 2013, and Hunt did “a few things” that “scared” her. (Id. at 7). Shortly after they broke
up, he “showed up at [her] doorstep” around 2:00 a.m. Sweet worked third shift and had left early
that night. (Id.). Upon seeing Hunt at her back door, she cursed and asked what he was doing
there. He responded that he wanted to talk, and she refused. (Id.).
{¶ 17} Hunt showed up at Sweet’s house again on February 2, 2013. (Id. at 8). On that
occasion, he approached her back door and began peering through her window. Hunt was talking
to Sweet on a cell phone at the time, and he told her he could see into her house. (Id.). Sweet told
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Hunt to leave. He refused and indicated that he wanted to talk. (Id.). Sweet declined and called
911. Before the police could respond, Sweet’s son arrived and told Hunt to leave. (Id. at 10).
Hunt again refused. (Id.). Police then responded while Hunt was there. After speaking to the
police, Hunt left. (Id. at 9). Minutes later, Sweet began receiving calls from Hunt’s cell phone
“over and over and over and over again[.]” (Id. at 9, 12). While receiving the calls, Sweet dialed
911 again and asked what she should do. (Id. at 15). After Sweet had received between ten and
fifteen calls, her son answered the phone and advised Hunt to stop. (Id. at 14). A police officer
then returned to Sweet’s house. The officer called Hunt and told him again not to contact Sweet.
(Id. at 15). The following morning, however, Hunt approached Sweet while she was working at
Walmart and asked her, “Is this too close?” (Id. at 16). Hunt also called Sweet two more times
shortly after February 2, 2013, trying to talk her into not breaking up. (Id. at 19-20). Sweet stated
that, based on what had occurred, Hunt “scare[d]” her. (Id. at 23). Sweet also recalled an incident
during their relationship when Hunt showed up with ropes and said he was going to tie her up.
(Id. at 23-24). She thought this “was really a serious problem” in addition to Hunt “looking
through [her] window and popping up at strange hours, trying to convince [her] to stay with
him[.]” (Id. at 24).
{¶ 18} On cross examination, Sweet agreed that Hunt never harmed her physically. (Id.
at 39). When asked whether he had threatened to harm her physically, she responded that it was
“more mentally.” (Id.).With regard to the ropes she had mentioned, Sweet stated that they were
not part of the parties’ physical relationship and that Hunt never had tried to tie her up. (Id. at 41).
She added, however, that she had hidden the ropes from Hunt when he went to the bathroom. (Id.
at 41-42). Sweet then acknowledged that she had not seen any doctor, psychiatrist, or
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psychologist as a result of Hunt’s actions. (Id. at 45). She did testify, however, about becoming
“very emotionally upset” because Hunt “would not take no for an answer” after she terminated
the relationship. (Id. at 32). At one point in her testimony, the trial judge interrupted the
proceedings and stated: “Knock it off, Mr. Hunt. Just let the record reflect that he was staring
down the witness from behind his attorney.” (Id. at 45). Hunt denied the judge’s observation.
(Id.). The judge responded: “I observed what you were doing, sir.” (Id.).
{¶ 19} In our view, Sweet’s testimony was sufficient for the trial court to find that Hunt
had engaged in menacing by stalking. The trial court had the discretion to credit her testimony,
which supports a finding that he engaged in a pattern of conduct that knowingly caused her
mental distress. Following Sweet’s termination of their relationship, he appeared at her home on
more than one occasion, unannounced and uninvited. He refused to leave and insisted on talking
to her. On one occasion, he arrived in the middle of the night. On another occasion, he was
peering in her window. He also made numerous unwanted calls and showed up at her place of
employment after being told to stay away. Hunt knew this contact was unwanted because Sweet
and the police had so advised him. During the ex parte hearing, Sweet testified that Hunt made
her “very nervous” and “afraid.” During the full hearing, she reiterated that his conduct “scared”
her and made her “emotionally upset.” We believe Sweet’s testimony was sufficient for the trial
court to conclude, by a preponderance of the evidence, that Hunt had engaged in menacing by
stalking. Accordingly, the second assignment of error is overruled.
{¶ 20} The trial court’s judgment is affirmed.
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FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Jennifer E. Marietta
Joseph W. Stadnicar
Justin M. McMullen
Hon. Steven L. Hurley