W.P.C. v. S.R.

[Cite as W.P.C. v. S.R., 2020-Ohio-3178.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
W.P.C., :
Petitioner-Appellee, :
No. 108613
v. :
S.R., :
Respondent-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 4, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CV-17-885870 and CV-17-885888
Appearances:
W.P.C., pro se.
David M. Leneghan and K. Scott Carter, for appellant.
SEAN C. GALLAGHER, P.J.:
Respondent-appellant S.R. appeals the decision of the trial court to
issue a civil stalking protection order (“CSPO”) against him. Upon review, we affirm
the trial court’s decision and uphold the CSPO and its terms.
Background
On September 13, 2017, petitioner-appellee W.C. filed a petition to
obtain a CSPO on behalf of himself, his wife, and his two minor children. A
temporary, ex parte protection order was issued and was extended during the
pendency of the matter. The parties agreed to a continuance, and the trial court
conducted a full hearing in April 2019.
The transcript reflects petitioner and his family lived across the street
from respondent in Broadview Heights before they moved away from the
neighborhood. Testimony was presented regarding a number of incidents involving
menacing conduct by respondent that was directed at petitioner and his family
members.
In September 2017, an incident occurred in which petitioner and
respondent were involved in a verbal and physical altercation and the police were
called. Petitioner and respondent provided different accounts of what transpired.
Officer Kevin Pozek testified that he conducted an investigation, determined
respondent was the primary aggressor, and arrested respondent. Officer Pozek also
testified that respondent stated to “make sure I tell that [expletive] I will break his
arm next time.” Evidence was presented of physical harm caused to petitioner.
Petitioner stated that respondent returned in front of his house and threatened “do
you want to play some more.”
Petitioner testified to another incident that occurred about a month
prior to the assault in which respondent made a threat to the effect of “I will knock
your teeth — or send you to the dentist.” He testified that about a week thereafter,
petitioner made the comment “any time you’re ready, [expletive].”
Petitioner’s wife testified to respondent’s intimidating conduct
toward her and her children. She testified to an incident where respondent was
wagging his finger at her children on the sidewalk and was very angry. Respondent
threatened her husband while in her and their children’s presence. She also testified
that after the assault incident, respondent began standing in the middle of his yard
staring at her house, and he also started “pacing up and down in front of the house.”
She testified to other intimidating behavior in which respondent would follow her
out whenever she took her dog for a walk in the neighborhood, and respondent
would stare at her from the street corner. She testified that if she were behind
respondent in her car while driving into the subdivision, “he would hit his brakes”
and she had to proceed at “three miles an hour.” She further testified that
respondent began videotaping her children, which she witnessed. She testified that
her youngest daughter started sleeping with her because she was having nightmares
about respondent. Ultimately, the family decided to move away from the
neighborhood because of respondent.
Respondent and his wife testified and provided their accounts of what
transpired. Respondent maintained that at best a couple of conditional threats were
made to defend himself and that there was no showing of physical harm or mental
distress.
On April 30, 2019, the trial court granted the petition and issued a
CSPO against respondent for a period of four years. The protected persons include
petitioner, his wife, and their two children. In the journal entry, the trial court found
as follows:
The court found the testimony of petitioner [W.C.], Broadview Heights
Police Officer Pozek, and [petitioner’s wife R.C.] to be credible. After
review of all testimony and evidence in this matter, the court hereby
finds by a preponderance of evidence that the respondent has
knowingly engaged in a pattern of conduct that caused petitioner and
his family to believe that the respondent will cause physical harm or
cause or has caused mental distress. Evidence of the pattern of conduct
was supported by testimony as to the following: The physical
altercation with petitioner (which resulted in respondent’s assault
conviction); the respondent videotaping the petitioner’s children;
testimony that respondent was watching or acting in an intimidating
manner toward the petitioner and his family; the verbal threats to
petitioner and his spouse [R.C.]; and testimony that after the
respondent was arrested for the incident with petitioner, he was back
on or near petitioner’s property shouting “do you want to play some
more,” the evidence supports that petitioner believed the respondent
will cause physical harm (and has caused physical harm with the
assault of [petitioner W.C.]) and also has caused mental distress to
petitioner and his family.
Respondent timely appealed the trial court’s decision. The matter is
now before us for review.
Law and Analysis
Respondent raises two assignments of error. Under his first
assignment of error, respondent claims the trial court erred when it granted the
CSPO because he believes it was not supported by a preponderance of the evidence.
R.C. 2903.214 allows a person to seek a civil protection order by filing
a petition alleging that the respondent engaged in a violation of R.C. 2903.211,
menacing by stalking. The petitioner may seek relief on behalf of any other family
or household member. R.C. 2903.214(C). However, it must be established, by a
preponderance of the evidence, that the respondent committed a violation of R.C.
2903.211 against each family or household member to be protected. M.J.W. v. T.S.,
8th Dist. Cuyahoga No. 108014, 2019-Ohio-3573, ¶ 21, citing Prater v. Mullins, 3d
Dist. Auglaize No. 2-13-04, 2013-Ohio-3981, ¶ 8.
In relevant part, R.C. 2903.11 defines menacing by stalking as follows:
“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 * * *.” R.C. 2903.211(A)(1). A person
acts “knowingly” when “the person is aware that the person’s conduct will probably
cause a certain result or will probably be of a certain nature.” R.C. 2901.22.
A “[p]attern of conduct” is defined as “two or more actions or
incidents closely related in time” regardless of a prior conviction. R.C.
2903.211(D)(1). “‘[T]he temporal period within which the two or more actions or
incidents must occur * * * [is a] matter to be determined by the trier of fact on a case-
by-case basis.’” Elkins v. Manley, 8th Dist. Cuyahoga No. 104393, 2016-Ohio-8307,
¶ 16, quoting Ellet v. Falk, 6th Dist. Lucas No. L-09-1313, 2010-Ohio-6219, ¶ 22.
“Mental distress” is defined to include “[a]ny 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.” R.C. 2903.211(D)(2)(b). Expert testimony is not required to establish
mental distress, and the trier of fact can rely on its own knowledge and experience
in determining whether mental distress has been caused. Smith v. Wunsch, 162
Ohio App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 18 (4th Dist.).
In this case, respondent claims that there was a lack of evidence to
support granting a protection order as to petitioner and each of the family members.
We recognize that “‘[a] court must take everything into consideration’” when
determining whether the respondent’s conduct constitutes a pattern of conduct,
even though certain actions, in isolation, may not seem particularly threatening.
Guthrie v. Long, 10th Dist. Franklin No. 04AP-913, 2005-Ohio-1541, ¶ 12, quoting
Miller v. Francisco, 11th Dist. Lake No. 2002-L-097, 2003-Ohio-1978.
Furthermore, although a petitioner cannot obtain a CSPO protecting other family
members “‘simply by presenting evidence as to one of the persons to be covered’” in
the case of a pattern of conduct directed at multiple persons, “‘the same evidence
may establish the elements of R.C. 2903.211(A)(1) as to multiple persons to be
protected under a CSPO.’” M.J.W., 8th Dist. Cuyahoga No. 108014, 2019-Ohio-
3573, at ¶ 21, quoting Prater, 3d Dist. Auglaize No. 2-13-04, 2013-Ohio-3981, at ¶ 8.
The record reflects that testimony and evidence was presented
regarding the assault incident that led to respondent’s criminal conviction.
Petitioner testified to multiple incidents in which he was threatened and intimidated
by respondent. Not only did respondent cause petitioner physical harm during the
assault incident, but he threatened physical harm such as to “knock your teeth out.”
Petitioner’s wife testified to respondent’s intimidating behavior of
staring at her house and pacing in front of her house, following her out on dog walks,
staring at her from the corner of the street, and braking his car and slowing down in
front of her vehicle. She also testified to conduct relating to her children. She
testified to an incident involving respondent wagging his finger at the children and
to respondent threatening petitioner in her and her children’s presence. She also
witnessed respondent videotaping her children. She testified to her youngest child
having nightmares. Ultimately, respondent’s conduct led the family to move from
the neighborhood. The trial court was permitted to rely on its own knowledge and
experience and could reasonably infer from the circumstances that mental distress
was caused to the entire family.
Our review reflects that competent, credible evidence was presented
to establish respondent committed menacing by stalking against petitioner and each
family member to be protected. Moreover, there is ample competent, credible
evidence to support each element of menacing by stalking and the trial court’s
finding “by a preponderance of evidence that the respondent has knowingly engaged
in a pattern of conduct that caused petitioner and his family to believe that the
respondent will cause physical harm or cause or has caused mental distress.”
Accordingly, we uphold the trial court’s decision to grant the petition for a CSPO
against respondent. The first assignment of error is overruled.
Under the second assignment of error, respondent claims the trial
court erred by issuing a civil stalking protection order for a period in excess of five
years from the date the ex parte order was issued. He cites no legal authority for this
claim, and a plain reading of R.C. 2903.214 dictates otherwise.
R.C. 2903.214(D)(1) permits a court, upon request, to issue a
temporary, ex parte protection order after a petition has been filed. Any protection
order that is issued on the merits after a full hearing is a separate order. It is not a
continuation of the ex parte order as respondent suggests. R.C. 2903.214(E)(2)(a)
provides that “[a]ny protection order issued pursuant to this section shall be valid
until a date certain but not later than five years from the date of its issuance.” The
trial court complied with the statute and issued a CSPO for a period of four years
from the date of issuance. Respondent’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_____
SEAN C. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
MICHELLE J. SHEEHAN, J., CONCUR