Ziegler v. Tameris

[Cite as Ziegler v. Tameris, 2022-Ohio-4044.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
MARY B. ZIEGLER, CASE NO. 2022-L-042
Petitioner-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
EVE TAMERIS,
Trial Court No. 2021 CS 000628
Respondent-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
Leslie S. Johns, Ashley Jones Law, 1220 West 6th Street, Cleveland, OH 44113 (For
Petitioner-Appellee).
James W. Reardon, Carrabine & Reardon, Co., LPA, 7445 Center Street, Mentor, OH
44060 (For Respondent-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Eve Tameris, appeals the trial court’s judgment overruling her
objections to the magistrate’s decision and granting appellee, Mary B. Ziegler, a civil
stalking protection order (“CSPO”). We affirm.
{¶2} On May 25, 2021, Ziegler filed a petition for a CSPO against Tameris
pursuant to R.C. 2903.214. Ziegler filed the petition on behalf of herself, her husband,
and her nonresident grandchildren. The magistrate granted an ex parte CSPO on the
following business day.
{¶3} Ziegler made the following allegations in her petition:
Over the past two weeks (May 10th & 12th), Eve Tameris has
ranted at me in my backyard several times calling me a
f@#king [sic] bitch, making strange noises. This started last
summer when she dug up our landscape stones twice in the
middle of the night and stole them. She and Robert have
taunted me from their property with provocative behavior.
They intentionally play loud music directed at our home and
have placed a spot light [sic] that shines into our window. They
work in their yard at night and have placed yard debris and
logs along our property to create an eyesore. They have
harassed our lawncare people several times and most
recently on May 19, 2021, (almost) getting to the point of a
physical alter[c]ation. They burn yard waste excessively to
annoy us. When I’m home alone I’m fearful and scared. I’m
afraid to go into my own yard.
{¶4} A full hearing on the matter was held before the magistrate on November 9,
2021. Ziegler and Tameris both appeared and testified, as did Ziegler’s husband and
adult daughter and Deputy Steven Ross of the Lake County Sheriff’s Office. The
magistrate issued his decision on December 22, 2021, recommending the court grant
Ziegler a CSPO against Tameris until January 1, 2024. Included in the decision are the
following findings of fact:
The petitioner and the respondent are next-door neighbors.
Their homes are separated by less than 100 feet. Since
August 2020, the respondent has waged a war of torment
against the petitioner.
The petitioner and her husband testified to several examples.
For starters, the respondent continually blasted a local radio
station’s broadcast with a boombox left outdoors from dawn
to dusk, pointing its loudspeakers at the petitioner’s home for
maximum misery. The respondent also repeatedly stood and
scowled directly at the petitioner so often that she and [her
husband] dubbed it the “Eve pose.” Several times, too, the
respondent shrieked obscenities and targeted insults at the
petitioner. The petitioner also described how, unlike their prior
neighbors, the respondent often slammed doors and windows
in a manner meant to upset the petitioner. Multiple times, the
respondent stood and appeared to film the petitioner with her
phone for no apparent reason other than to harass her.
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Many of the instances, if viewed alone, are not the type of
items to trigger the issuance of a CSPO. When considering
everything together with the high frequency of such, though,
the respondent’s actions and conduct show that she engaged
in menacing by stalking against the petitioner in violation of
R.C. 2903.211(A).
Credibility played a key role in determining these facts. The
magistrate found the petitioner credible and very sincere.
There is no doubt that she suffered, and continues to suffer
mental distress because of the respondent’s conduct. The
petitioner, for example, actively continues to take steps to
avoid the respondent. The petitioner has also had to install
security cameras at her home.
[The petitioner’s husband and adult daughter] and Deputy
Ross appeared credible and sincere to the magistrate as well.
The same cannot be said for the respondent. Repeatedly,
while the petitioner struggled to speak through her tear-filled
testimony, the respondent disrespectfully laughed in an
unashamed display of schadenfreude. The magistrate
ultimately considered her insincere and not credible.
{¶5} Applying the law to these facts, the magistrate found that Ziegler proved by
a preponderance of the evidence that Tameris engaged in menacing by stalking, to wit:
“The pattern, rampant frequency, and tormenting nature of the conduct is more than
enough to conclude the respondent did such for the purpose of harassing and intimidating
petitioner in violation of R.C. 2903.211(A)(1).”
{¶6} The trial court adopted the magistrate’s decision that same day. The order
of protection was only granted as to Ziegler and only against Tameris; it does not pertain
to the husband of either party. The order generally provides that Tameris shall not enter
or interfere with Ziegler’s residence, school, business, place of employment, daycare
centers, or childcare providers, including the buildings, grounds, and parking lots at those
locations; shall not remove, damage, hide, or dispose of any property, companion
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animals, or pets owned by Ziegler; shall stay away from Ziegler; shall not initiate or have
any contact with Ziegler; shall not use any form of electronic surveillance on Ziegler; shall
not cause or encourage any person to do any act prohibited by the order; shall not
possess, use, carry, or obtain any deadly weapon; and shall turn over all deadly weapons.
More specifically, the order provides as follows:
Distance restrictions * * * herein temporarily decreased to 25
feet while Respondent going to/from or upon the property
known as [address redacted]; and, unless Respondent is
doing yardwork, Respondent shall not remain stationary or
loiter outside the residence thereupon said property; and,
Respondent shall turn off all rear-house outdoor lighting
between 10PM – 6AM; and, no audio speakers are permitted
outside on said property unless Respondent is also outside
and within 10 feet of said devices.
{¶7} Tameris filed timely objections and supplemental objections to the
magistrate’s decision, which the trial court overruled on April 21, 2022. From this
judgment, Tameris filed a notice of appeal. She asserts one assignment of error,
challenging the sufficiency of the evidence on which the CSPO against her is based:
The trial court erred and abused its discretion when it granted
petitioner/appellee a civil stalking and protection order [sic]
pursuant to R.C. §2903.214, when there did not exist legally
sufficient evidence to support the finding.
{¶8} “[S]ufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support the [judgment] as a matter of law[.]” State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v.
Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “Under the sufficiency
standard, appellate courts review the evidence presented in the light most favorable to
the [petitioner] to determine whether the [petitioner] presented some evidence going to
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all elements of the claim or offense.” (Citation omitted.) L.M.W. v. B.A., 2022-Ohio-2416,
191 N.E.3d 1240, ¶ 18 (8th Dist.).
{¶9} Issuance of a CSPO pursuant to R.C. 2903.214 requires the petitioner to
establish, by a preponderance of the evidence, that the respondent engaged in conduct
constituting menacing by stalking. R.C. 2903.214(C)(1); Lloyd v. Thornsbery, 11th Dist.
Portage No. 2017-P-0029, 2018-Ohio-2893, ¶ 9; Lane v. Brewster, 12th Dist. Clermont
No. CA2011-08-060, 2012-Ohio-1290, ¶ 18. Menacing by stalking is defined, in relevant
part, as “engaging in a pattern of conduct” which “knowingly cause[s] another to believe
that the offender will * * * cause mental distress to the other person or a family or
household member of the other person.” R.C. 2903.211(A)(1). Importantly, “in
determining whether or not to grant a stalking civil protection order, the trial court needs
to view the actions with respect to their effect on the petitioner.” Tuuri v. Snyder, 11th
Dist. Geauga No. 2000-G-2325, 2002 WL 818427, *3 (Apr. 30, 2002); accord Cooper v.
Manta, 11th Dist. Lake No. 2011-L-035, 2012-Ohio-867, ¶ 33.
{¶10} A “pattern of conduct” is defined as “two or more actions or incidents closely
related in time.” R.C. 2903.211(D)(1). “[W]hether the incidents are ‘closely related in
time’ is to be resolved by the trier of fact, ‘considering the evidence in the context of all
the circumstances in the case.’” Cooper at ¶ 39, quoting State v. Bone, 10th Dist. Franklin
No. 05AP-565, 2006-Ohio-3809, ¶ 24.
{¶11} “Mental distress” is defined as including “any mental illness or condition that
involves some temporary substantial incapacity” or “any mental illness or condition that
would normally require * * * mental health services.” R.C. 2903.211(D)(2). A petitioner
only has to show that the respondent knowingly committed certain acts, and that from
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those actions, she believed the respondent was going to cause her mental distress. Tuuri
at *3; Cooper at ¶ 33; see also McKinley v. Kuhn, 4th Dist. Hocking No. 10CA5, 2011-
Ohio-134, ¶ 17 (the petitioner need not show that the respondent made an explicit or
direct threat). “Furthermore, ‘the testimony of the victim herself as to her fear is sufficient
to establish mental distress.’” L.M.W., 2022-Ohio-2416, at ¶ 27, quoting R.R. v. J.H., 8th
Dist. Cuyahoga No. 109465, 2021-Ohio-706, ¶ 29, citing State v. Horsley, 10th Dist.
Franklin No. 05AP-350, 2006-Ohio-1208, ¶ 48.
{¶12} On appeal, Tameris characterizes the dispute between the parties as
merely unfriendly and untenable, rather than harassing or distressing. Tameris cites to
case law for the proposition that “‘R.C. 2903.211 was “not enacted for the purpose of
alleviating uncomfortable situations, but to prevent the type of persistent and threatening
harassment that leaves victims in constant fear of physical danger [or mental distress].”’”
J.A.C. v. A.L., 8th Dist. Cuyahoga No. 110999, 2022-Ohio-2275, ¶ 18, quoting McKinley
at ¶ 14, quoting Kramer v. Kramer, 3d Dist. Seneca No. 13-02-03, 2002-Ohio-4383, ¶ 17.
{¶13} Based on the testimony, however, the trier of fact could reasonably have
inferred that Tameris engaged in a pattern of conduct directed at Ziegler, which was
intimidating, harassing, and menacing, and that Tameris knew she was causing Ziegler
to believe that she would suffer mental distress. Ziegler, her husband, and her adult
daughter all testified to the specific events that caused her to suffer from anxiety,
sleeplessness, nightmares, fear, and the like on a daily basis for over a year. This
conduct included shining a spotlight into the Zieglers’ kitchen window at all hours of the
day and night; digging up stones from the Zieglers’ landscaping during the night; leaving
a radio on during the day at the loudest volume faced directly at the Zieglers’ residence;
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slamming doors and windows; banging on patio furniture; making howling and barking
noises directed at the Zieglers’ residence, including when grandchildren were visiting
outside; walking and pacing the property line while Zeigler was outside; taking
photographs and video recordings with her phone; burning yard waste and depositing it
in piles along the property line; and shouting verbal insults and attacks. The sheriff’s
deputy also testified about his response to Ziegler’s complaint about Tameris’s loud radio
and his subsequent conversation with Tameris and her husband, which he described was
confrontational and provided him with an unreasonable explanation. Few questions were
asked of Tameris at the hearing, which resulted merely in her denying the allegations of
verbal insults and attacks; she presented no additional evidence.
{¶14} Accordingly, we conclude that the magistrate’s findings, adopted by the trial
court and recited above, are fully supported by the transcript of the hearing. And despite
Tameris’s assertions to the contrary, upon construing the evidence in a light most
favorable to Ziegler as we must in a sufficiency analysis, we conclude that the evidence
was legally sufficient to support a decision that Tameris has committed acts against
Ziegler that constitute menacing by stalking under R.C. 2903.211(A)(1).
{¶15} The sole assigned error is without merit.
{¶16} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.
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