DocketNumber: No. 02CA13.
Judges: EVANS, P.J.
Filed Date: 2/11/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} For the reasons that follow, we disagree with appellant's first argument and affirm the judgment of the trial court. However, we find that appellant's second argument has some merit, and we modify the trial court's order accordingly.
{¶ 4} Evidently, appellant was unhappy about the outcome of certain custody proceedings in which appellee had been appointed guardian ad litem for appellant's two daughters. Apparently, one of appellant's daughters had been sexually molested by her mother's new husband, and appellant had sought custody. The result of the proceedings was an agreed entry placing the two daughters with their mother in Texas. Apparently, appellant blames appellee for the outcome in that case. This is the reason for appellant's sustained grudge against appellee.
{¶ 5} The trial court granted appellee an ex parte order, instructing appellant to not come within two blocks or 300 yards of appellee or any place where appellee may be found. This order was subsequently modified to order appellant to turn over all firearms in his possession to the Logan Police Department.
{¶ 8} David Kelch, the former Police Chief for the Logan Police Department also testified at the hearing. Kelch testified that he had been involved with both parties over the course of this feud. He further testified that he was generally concerned about appellant's continuous confrontations with appellee. The former chief of police feared that the verbal altercations and confrontations could escalate into violence.
{¶ 9} Tina Smathers, who works for the Hocking County Municipal Court, also testified at the hearing. She testified about a confrontation that occurred on November 29, 2001. She testified that on that day she witnessed appellant follow appellee into a coffee shop near appellee's office. According to Smathers, appellant was yelling "something about supporting child molesters." She testified that appellant was very loud throughout the confrontation and that she was scared.
{¶ 10} Appellee also testified at the hearing. He testified that appellant had been harassing and troubling him ever since the custody proceedings in 1995. Appellee described two occasions where appellant sat and gazed at appellee with a "hostile stare."
{¶ 11} Appellee further testified that every couple of months he would "run into" appellant near the courthouse or post office, and that on those occasions appellant would yell something to the effect of, "Hey, Wallace, you still protecting child molesters?" Appellee also testified that appellant called him vulgar names. According to appellee, this kind of confrontation occurred approximately 40-45 times since 1995.
{¶ 12} In addition, appellee testified that on three separate occasions, appellant drove his vehicle towards appellee in what appeared to be an attempt to run him down. Also, on two other occasions, appellant and appellee encountered each other in doorways. On both occasions, appellant evidently shoved the door in an attempt to strike appellee with the door. Appellant was successful on one of those occasions, apparently hitting appellee with a door.
{¶ 13} Finally, appellee described the most recent incident between himself and appellant. This incident was the same one that was witnessed by Tina Smathers. Appellee testified that during this encounter, appellant made what appellee thought was an aggressive move but that no physical altercation, violence, or threat of violence occurred. Appellee concluded that these incidences have left him scared and concerned that appellant would commit some form of violence against him or his family.
{¶ 15} Appellant testified last at the hearing. Appellant testified that he worked as a pilot for Northwest Airlines and that he was a captain in the United States Army Reserves. Appellant testified that he had five or six "conversations" with appellee. However, appellant admitted that he "shout[ed] at Mr. Wallace on the street a lot of times."
{¶ 16} Appellant also testified about the most recent confrontation between himself and appellee. Appellant testified that on that occasion he shouted at appellee from across the street and that appellee crossed the street to confront appellant. Appellant also testified that he recorded the conversation between himself and appellee. A transcript of that recording was admitted as an exhibit.
{¶ 17} The trial court asked appellant several questions during his examination. The trial court asked appellant whether he cared if Northwest Airlines was informed of appellant's conduct towards appellee. Appellant informed the court that he did not care whether his employer was informed about his behavior. In response to this answer, the trial court expressed that it did not find appellant very credible.
{¶ 18} In addition, appellant was questioned regarding a letter he wrote to his former spouse's attorney in Texas. Appellant wrote the letter in response to comments made by the attorney, insinuating that appellant was a coward and "treat[ed] ladies in an ungentlemanly like manner." In the letter, appellant challenged the attorney to a boxing match. The trial court laughed during the testimony. The trial court found the letter preposterous, funny, and sick.
{¶ 20} The trial court also made separate findings of fact.
{¶ 22} First Assignment of Error: "The Trial Court, Pursuant To Ohio Rev. Code §
{¶ 23} Second Assignment of Error: "The Civil Protection Order's Provisions Dealing With Firearms Improperly Infringe On Appellant's Constitutional Right To Bear Arms Since There Is No Evidence Concerning The Use Or Threatened Use Of Firearms In The Record."
{¶ 26} To constitute an abuse of discretion, "the result must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will, but the perversity of will, not the exercise of judgment, but the defiance of judgment, not the exercise of reason but, instead, passion or bias." Nakoff v. Fairview Gen. Hosp.,
{¶ 27} Moreover, it is well-established that "[j]udgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence." See Tuuri v. Snyder, 11th Dist. No. 2000-G-2325, 2002-Ohio-2107, quoting C.E. Morris Co. v. FoleyConstr. Co. (1978),
{¶ 28} To put it plainly, we "may not simply substitute [our] judgment for that of the trial court so long as there is some competent, credible evidence to support the lower court findings." State ex rel.Celebrezze v. Environmental Enterprises, Inc. (1990),
{¶ 30} R.C.
{¶ 32} The Seventh District Court of Appeals held that explicit threats are not necessary to prove the essential elements of menacing by stalking under R.C.
{¶ 33} Appellant also asserts that appellee was not in fear of physical harm at the hands of appellant. Appellant argues that the most recent incident between he and appellee was sustained by appellee crossing the street and following appellant to the coffee shop. Appellant asserts that if appellee truly believed that appellant would cause him physical harm, appellee would not have crossed the street and confronted him after appellant had shouted his usual refrain at him. However, it is not unheard of that a person might become so frustrated or angered that he or she might disregard his or her own fear and safety in order to confront the source of that agitation.
{¶ 34} Nevertheless, based on the facts of this case, the trier of fact could reasonably have inferred that appellee was afraid appellant would cause physical harm to him. While the evidence was arguably thin on that issue, we hold that it was sufficient to meet the preponderance-of-the-evidence standard, particularly given the remedial goal of the statute. See Felton v. Felton (1997),
{¶ 35} Appellant also argues that the trial court's decision amounts to a violation of his
{¶ 36} Accordingly, we find that the trial court did not abuse its discretion in granting appellee the protection order against appellant. Thus, we overrule appellant's First Assignment of Error.
{¶ 38} At the outset, we decline to address the constitutionality of a protection order that instructs the subject of that order to divest himself of all firearms. Likewise, we refuse to explore the depth or breadth of an individual's rights to bear arms under the Ohio and United States Constitution.2
{¶ 39} Accordingly, we limit our review of the present order to the issue of whether it is supported by evidence.
{¶ 40} R.C.
{¶ 41} We find the portion of the present order, forbidding appellant from possessing firearms, is not supported by the evidence. Throughout the course of this ongoing dispute, there has been no indication that appellant has had in his possession, or used, a firearm during any of the encounters with appellee.
{¶ 42} The conflict between the parties appears to surface only when they come into contact with each other. Therefore, the protection order's provision that appellant stay two blocks or 300 yards away from appellee was sufficiently designed to ensure appellee's safety and protection. Appellant's gun collection, which he maintains in his home, has had no impact in this ongoing dispute. Thus, this particular provision of the protection order is not reasonably tailored to, or designed for, this particular set of circumstances.
{¶ 43} Appellant's Second Assignment of Error is sustained.
{¶ 45} Therefore, we affirm the trial court's decision to issue a protection order against appellant, but modify that judgment pursuant to App.R. 12(B), thereby vacating the provision instructing appellant to relinquish his firearms to local authorities.
Judgment affirmed and modified.
The Court finds that there were reasonable grounds for this appeal.
It is further ordered that a special mandate issue out of this Court directing the HOCKING COUNTY COURT OF COMMON PLEAS to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J., and Abele, J.: Concur in Judgment and Opinion as to Assignment of Error I; Concur in Judgment Only as to Assignment of Error II.