E.B. v. J.B. , 2021 Ohio 776 ( 2021 )

[Cite as E.B. v. J.B., 2021-Ohio-776.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
E. B. C.A. No. 19CA0071-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
J. B. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 18 DV 0205
DECISION AND JOURNAL ENTRY
Dated: March 15, 2021
TEODOSIO, Judge.
{¶1} J.B. appeals the judgment of the Medina County Court of Common Pleas, Domestic
Relations Division, overruling his objections and affirming the issuance of a domestic violence
civil protection order. We affirm.
I.
{¶2} In September 2018, during the pendency of a divorce action between the parties,
E.B. petitioned the trial court for a domestic violence civil protection order (“DVCPO”) against
her husband, J.B. An ex parte civil protection order was issued and a full hearing was scheduled.
{¶3} By way of background, the parties lived separately during the pertinent timeframe,
with E.B. occupying the marital residence, located on a cul-de-sac, while J.B. lived approximately
20 minutes away. The testimony at the full hearing largely involved two incidents. The first
incident occurred at the beginning of September 2018, when J.B. texted to E.B. a photograph of a
vehicle parked in the driveway of the marital residence in the early morning hours. By his own
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testimony, he sent the photograph as evidence that her boyfriend was living with her after she had
denied that accusation.
{¶4} The second incident occurred a few days later, after the ex parte DVCPO had been
issued, but before J.B. had been served with the order. J.B. had parked his car at the end of the
cul-de-sac to monitor and photograph the marital property. When E.B. returned home, she saw
J.B.’s vehicle parked at the end of the street and drove up to vehicle in order to photograph and
document his presence there. J.B.’s testimony also indicated that prior to the protection order, he
would drive to the house approximately once a week.
{¶5} After the issuance of a full-hearing protection order, J.B. filed objections to the
magistrate’s decision, and a hearing on the objections was conducted by the trial court in February
2019. On September 16, 2019, the trial court entered judgment overruling the objections and
adopting the magistrate’s findings of fact and conclusions of law. J.B. now appeals, raising one
assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
DISCRETION BY FINDING RESPONDENT COMMITTED AN ACT OF
DOMESTIC VIOLENCE BY PLACING PETITIONER BY THREAT OF FORCE
IN FEAR OF IMMINENT SERIOUS PHYSICAL HARM AND/OR
COMMITTING A VIOLATION OF R.C. 2903.211 AND BY DENYING
RESPONDENT’S OBJECTION TO THE MAGISTRATE’S DECISION
GRANTING A DOMESTIC VIOLENCE CIVIL PROTECTION ORDER.
{¶6} In his assignment of error, J.B. argues the trial court erred by finding that he had
committed an act of domestic violence by placing E.B., by threat of force, in fear of imminent
serious physical harm or that he had committed a violation of R.C. 2903.211. We disagree.
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{¶7} “The decision whether to issue a protection order is within the discretion of the trial
court.” W.B. v. T.M., 9th Dist. Lorain No. 19CA011474, 2020-Ohio-853, ¶ 8. “[A] trial court’s
decision to grant or deny a protection order is reviewed on appeal under a civil manifest weight
standard.” Wetterman v. B.C., 9th Dist. Medina No. 12CA0021-M, 2013-Ohio-57, ¶ 8. “[B]efore
an appellate court will reverse a judgment as against the manifest weight of the evidence in a civil
context, the court must determine whether the trier of fact, in resolving evidentiary conflicts and
making credibility determinations, clearly lost its way and created a manifest miscarriage of
justice. Only in the exceptional case, where the evidence presented weighs heavily in favor of the
party seeking reversal, will the appellate court reverse.” Boreman v. Boreman, 9th Dist. Wayne
No. 01CA0034, 2002-Ohio-2320, ¶ 10. Manifest weight of the evidence pertains to the burden of
persuasion. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 19. “In weighing the
evidence, the court of appeals must always be mindful of the presumption in favor of the finder of
fact.” Id. at ¶ 21.
{¶8} “‘When the trial court exercises its discretion, however, it must find that the
petitioner has shown by a preponderance of the evidence that the petitioner or petitioner's family
or household members are the victim of, or in danger of, domestic violence.’” W.B. v. T.M. at ¶ 8,
quoting Lundin v. Niepsuj, 9th Dist. Summit No. 28223, 2017-Ohio-7153, ¶ 19. As defined in
R.C. 3113.31(A)(1)(a), the phrase “domestic violence” means the occurrence of one or more of
the following acts against a family or household member:
(i) Attempting to cause or recklessly causing bodily injury;
(ii) Placing another person by the threat of force in fear of imminent serious
physical harm or committing a violation of section 2903.211 or 2911.211
of the Revised Code;
(iii) Committing any act with respect to a child that would result in the child
being an abused child, as defined in section 2151.031 of the Revised Code;
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(iv) Committing a sexually oriented offense.
{¶9} In the case sub judice, after the hearing, the magistrate issued a domestic violence
civil protection order on the basis of R.C. 3113.31(A)(1)(a)(ii), finding that J.B. had “engaged in
a pattern of conduct to knowingly cause [E.B.] to believe he would cause physical harm, and
actually caused mental distress to her.” In overruling J.B.’s objection to the civil protection order,
the trial court found that the magistrate did not err in finding that J.B. engaged in an act of domestic
violence as defined by R.C. 3113.31(A)(1)(a)(ii) by placing E.B. “by threat of force in fear of
imminent serious physical harm and/or by committing a violation of R.C. 2903.211 (menacing by
stalking).”
{¶10} We note that the magistrate did not make a finding that J.B. placed E.B., by threat
of force, in fear of imminent serious physical harm. Likewise, in ruling on J.B.’s objections, the
trial court did not set forth any facts establishing a threat of force placing E.B. in fear of imminent
serious physical harm. Rather, the crux of the protection order is based upon R.C. 2903.211, as
acknowledged by E.B. in her brief to this Court. To the extent that J.B.’s brief focuses on the fear
of imminent serious physical harm caused by a threat of force, we agree that there is no evidence
to support such a finding.
{¶11} R.C. 2903.211 sets forth the offense of menacing by stalking as follows:
(A)(1) 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 member of the other person or cause mental distress to the
other person or a family or household member of the other person. In addition to
any other basis for the other person’s belief that the offender will cause physical
harm to the other person or the other person’s family or household member or
mental distress to the other person or the other person's family or household
member, the other person’s belief or mental distress may be based on words or
conduct of the offender that are directed at or identify a corporation, association, or
other organization that employs the other person or to which the other person
belongs.
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(2) No person, through the use of any form of written communication or any
electronic method of remotely transferring information, including, but not limited
to, any computer, computer network, computer program, computer system, or
telecommunication device shall post a message or use any intentionally written or
verbal graphic gesture with purpose to do either of the following:
(a) Violate division (A)(1) of this section;
(b) Urge or incite another to commit a violation of division (A)(1) of this
section.
{¶12} R.C. 2903.211(D) provides the following definitions:
(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, or 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, directed at one or more persons employed by or belonging to the
same corporation, association, or other organization. Actions or incidents that
prevent, obstruct, or delay the performance by a public official, firefighter,
rescuer, emergency medical services person, or emergency facility person of
any authorized act within the public official's, firefighter’s, rescuer’,
emergency medical services person's, or emergency facility person's official
capacity, or the posting of messages, use of intentionally written or verbal
graphic gestures, or receipt of information or data through the use of any form
of written communication or an electronic method of remotely transferring
information, including, but not limited to, a computer, computer network,
computer program, computer system, or telecommunications device, may
constitute a “pattern of conduct.”
(2) “Mental distress” means any of the following:
(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.
{¶13} The “substantial incapacity” component of mental distress “does not mean that the
victim must be hospitalized, or totally unable to care for herself. Incapacity is substantial if it has
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a significant impact upon the victim’s daily life.” State v. Payne, 178 Ohio App.3d 617, 2008–
Ohio–5447, ¶ 9 (9th Dist.). This Court has held that evidence demonstrating that a petitioner felt
compelled to alter normal routines and patterns of behavior due to respondent’s conduct
corroborates allegations of mental distress. Noah v. Brillhart, 9th Dist. Wayne No. 02CA0050,
2003-Ohio-2421, ¶ 16, citing Akron v. Andrews, 9th Dist. Summit No. 19383, 2000 WL 108818,
*6 (Jan. 26, 2000). Mere mental stress or annoyance, however, does not constitute mental distress
for purposes of the menacing by stalking statute.” W.B. v. T.M., 9th Dist. Lorain No. 19CA011474,
2020-Ohio-853, ¶ 10.
{¶14} Expert testimony is not necessary to establish that a victim experienced mental
distress as a result of the offender’s behavior in order to prove menacing by stalking. State v. Hart,
9th Dist. Lorain No. 00CA007543, 2000 WL 1824892, *3 (Dec. 13, 2000). “Rather, it is the
function of the trier of fact to determine whether a victim suffered mental distress as a result of the
offender’s behavior. Furthermore, no evidence that psychological treatment has been undertaken
is necessary.” (Citation omitted.) Id.{¶15} “[E]xplicit or direct threats of physical harm are not necessary to establish a
violation of R.C. 2903.211(A). Rather, the test is whether the offender, by engaging in a pattern
of conduct, knowingly caused another to believe the offender would cause physical harm or mental
distress to him or her.” Noah at ¶ 15.
{¶16} Pursuant to R.C. 2903.211(A)(1), it must therefore be proven either that: (1) E.B.
believed that J.B. would cause her physical harm; or (2) J.B. actually caused E.B. mental distress.
See State v. Yoder, 9th Dist. Wayne No. 15AP0017, 2016-Ohio-7428, ¶ 17, fn. 2. Under his
assignment of error, J.B. argues that although E.B. gave testimony as to her emotional and mental
states following his actions, the standard for mental distress was not met.
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{¶17} In its order overruling the objections, the trial court found that E.B.’s testimony that
she felt nauseous and physically ill, coupled with her purchase of a handgun for her to conceal and
carry, established both that she believed that J.B. would cause her physical harm and that he caused
her mental distress. The trial court further found that J.B.’s own testimony that he had parked
down the street from the residence because he believed E.B. would be alarmed if she had seen him
conducting surveillance established that he had knowledge that his actions could lead to E.B.
believing he would cause her physical harm or could lead to her mental distress.
{¶18} With regard to J.B. sending her the photograph of her friend’s vehicle in her
driveway, E.B. testified that it “greatly disturbed” her and that she was “freaked out by it.” She
testified that upon discovering that J.B. was watching the residence from his vehicle she was
“shaking so bad” and “felt very nauseous.” She thought the behavior was “very creepy” and that
she was “very sick to [her]stomach physically, and [she] was very upset.” She also testified that
she was “still very upset” and felt “very unsafe” and “threatened.”
{¶19} E.B. further testified that even though she already owned two handguns, she
purchased a third, smaller handgun that she could conceal and carry because of “the escalation of
things that are happening in this case.” She stated that she was “very concerned that [J.B.] was
going to come back” and that he harbored “increased hostility” towards her since the trial court’s
last ruling.” When asked by counsel if she felt like she was in fear, or that her safety was
compromised, she answered in the affirmative.
{¶20} We reiterate that under a civil manifest weight of the evidence standard of review,
this Court must review the record, weigh the evidence, consider the credibility of witnesses, and
determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice.
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. In weighing the evidence, we
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must be mindful of the presumption in favor of the trial court’s factual findings. Lundin v. Niepsuj,
9th Dist. Summit No. 26015, 2014-Ohio-1212, ¶ 12. The testimony supports the findings that E.B.
was distressed to the point of physical illness and felt threatened and unsafe to the extent that she
purchased a firearm that she could conceal and carry. Upon review of the record, we cannot
conclude that the trial court clearly lost its way and created a manifest miscarriage of justice in
determining that E.B. suffered “mental distress” as a result of J.B.’s conduct. The trial court’s
finding of “mental distress” was not against the manifest weight of the evidence.
{¶21} J.B. further argues that no pattern of conduct, as defined by R.C. 2903.211(D)(1),
was established. He contends the single photograph he sent of the vehicle in the driveway, along
with the single time that E.B. discovered him parked in the cul-de-sac as he watched the marital
residence, do not establish a pattern of conduct. The trial court found that J.B.’s testimony that he
repeatedly drove to the marital residence to observe it on an almost weekly basis, as well as the
picture he sent to E.B. of her friend’s vehicle in the driveway and the evidence that he had been
watching the house from his car parked in the cul-de-sac, established a pattern of conduct.
{¶22} A “pattern of conduct” is defined as “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 * * *.” R.C. 2903.211(D)(1). “A court must take everything into consideration when
determining if a respondent’s conduct constitutes a pattern of conduct, even if some of the person's
actions may not, in isolation, seem particularly threatening.” R.C. v. J.G., 9th Dist. Medina No.
12CA0081-M, 2013-Ohio-4265, ¶ 12, quoting Guthrie v. Long, 10th Dist. Franklin No. 04AP913,
2005–Ohio–1541, ¶ 12, quoting Miller v. Francisco, 11th Dist. Lake No.2002–L–097, 2003–
Ohio–1978, ¶ 11, overruled in part on other grounds, Davis v. DiNunzio, 11th Dist. Lake No.
2004–L–106, 2005–Ohio–2883.
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{¶23} A minimum of two incidents, closely related in time, are required to constitute a
“pattern of conduct.” Even limited to J.B.’s conduct in sending the driveway photograph and his
surveillance of the marital property from the cul-de-sac, the trial court could reasonably conclude
that the incidents were of the same character such that they constituted a pattern of conduct under
the circumstances of this case. We do not conclude that this is a matter in which the trial court
clearly lost its way and created a manifest miscarriage of justice, as the weight of the evidence
supports a finding of a “pattern of conduct.”
{¶24} The assignment of error is overruled.
III.
{¶25} J.B.’s assignment of error is overruled. The judgment of the Medina County Court
of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, P. J.
CARR, J.
CONCUR.
APPEARANCES:
MICHAEL J. ASH, Attorney at Law, for Appellant.
DAVID V. GEDROCK, Attorney at Law, for Appellee.