Swartz v. Van Deest

[Cite as Swartz v. Van Deest, 2023-Ohio-1882.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TONYA M. SWARTZ JUDGES:
Hon. William B. Hoffman, P.J.
Appellee-Petitioner Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2022 CA 00080
TRAVIS J. VAN DEEST
Appellant-Respondent OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of
Common Pleas, Domestic Relations
Division, Case No. 2022 DR 00490 DF
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 6, 2023
APPEARANCES:
For Appellee-Petitioner For Appellant-Respondent
DOUGLAS A. FUNKHOUSER TONYA M. SWARTZ
DEREK S. WELT 450 Huntsworth Drive
Douglas A. Funkhouser Co., L.P.A. Johnstown, Ohio 43031
765 South High Street
Columbus, Ohio 43206
Licking County, Case No. 2022 CA 00080 2
Hoffman, P.J.
{¶1} Respondent-appellant Travis J. Van Deest appeals the September 12, 2022
Judgment Entry and accompanying Opinion, which overruled his objections to the
magistrate’s July 5, 2022 order, granting petitioner-appellee Tonya M. Swartz a civil
protection order (“CPO”) against him.1
STATEMENT OF THE CASE AND FACTS
{¶2} On May 25, 2022, Appellee filed a Petition for Dating Violence Civil
Protection Order pursuant to R.C. 3113.31. The trial court issued an ex parte CPO on
the same day. The matter came on for a full hearing before the magistrate on June 28,
2022.
{¶3} Appellee testified she and Appellant met in 2016, and went on a couple of
dates. Appellee explained, “I realized very quickly that he was not good for me.”
Transcript of June 28, 2022 Proceedings at 16. In 2020, just before the COVID shutdown,
Appellee and Appellant began talking and texting again. The parties started dating, and
dated exclusively from April, 2020, through September, 2021. They broke up for several
months, but began seeing each other again in November, 2021. The relationship ended
permanently in February, 2022.
{¶4} Appellee recalled an argument with Appellant in July, 2021, during which
Appellant picked up a pair of scissors and “began shaking them and walking towards me,
pointed them at me.” Id. at 17. Appellee recorded the incident. She left Appellant’s
1 Appellee has not filed a Brief in this matter.
Licking County, Case No. 2022 CA 00080 3
residence. When Appellee arrived home, she called her parents and friends, and told
them about the situation.
{¶5} Sometime after the parties’ break-up in February, 2022, Appellant returned
Appellee’s belongings, including Appellant’s copy of Appellee’s house key. Appellee was
not at home when Appellant returned her things. On February 15, 2022, Appellee arrived
home after work and was talking on the telephone to her mother. She heard a vehicle
pull into the driveway. Appellee informed her mother it was Appellant. Appellee’s mother
told her not to answer the door. Appellant began yelling at Appellee and threatening her.
Using a key to Appellee’s home he had duplicated without permission, Appellant unlocked
the front door. Appellee’s mother hung up, telling Appellee she was calling the police.
When Appellee told Appellant the police were on the way, he “busted in forcefully and just
was going crazy, psycho.” Id. at 18. Appellant fled before the officers arrived. Upon the
advice of the officers from the Johnstown Police Department, Appellee filed a No
Trespass Warning. She was informed Appellant would be served that evening. Appellee
stated, after the February 15, 2022 incident, she was fearful and would have friends or
family members stay the night with her.
{¶6} On May 17, 2022, Appellee’s boss called Appellee, who was a nurse, into
her office. Appellee’s boss informed Appellee an unidentified male had called the facility
several times while she was on vacation. The unidentified male asked when Appellee
was working, what her hours were, and what days she was scheduled to work. The
unidentified male called from private and anonymous numbers and never gave a name.
Appellee’s boss indicated the unidentified male made a number of allegations about her,
claiming Appellee was abusing and harming patients, drinking alcohol on the job, stealing
Licking County, Case No. 2022 CA 00080 4
work supplies and narcotic drugs, as well as other incidents of negative behaviors which
would be unprofessional as a nurse. The unidentified male advised Appellee’s boss he
had filed a complaint and investigation with the Ohio Board of Nursing. Appellee’s boss
had recorded the calls. Appellee immediately recognized Appellant’s voice. Appellee
contacted police, who advised her to file for a protection order.
{¶7} Appellee explained, after the February 15, 2022 incident, she changed the
locks on all of the doors of her residence, installed security cameras, and completed self-
defense classes. Appellee stated she was scared for her life, unable to sleep, and could
not focus. Even after Appellee filed the CPO, Appellant called her friends, “friended” her
co-workers on social media, and inquired about her through mutual friends. Appellee
indicated she was afraid of losing her career and was afraid of going out by herself.
{¶8} The trial court admitted Appellee’s Exhibit 5, the No Trespass Warning
issued by the Village of Johnstown Police on February 15, 2022; Exhibit 6, an email to
Appellee from Jerry Zachariah, an enforcement agent with the Ohio Board of Nursing;
Exhibits 7-15, text messages between Appellee and friends, and Appellee and Appellant;
Exhibits 16-18, Appellant’s dating website profile; and Exhibit 19, a flash drive containing
(1) an audio of recording of a call from an unidentified male to Appellee’s boss, and (2)
videos of the July, 2021 incident with the scissors.
{¶9} On cross-examination, Appellee explained she resumed her relationship
with Appellant on November 19, 2021, “after he blackmailed me that if I didn’t give him a
second chance he would tell my boyfriend.” Id. at 44.
{¶10} Kimberly Collins, Appellee’s mother, testified about the February 15, 2022
incident from her perspective. Collins also described the physical and emotional effects
Licking County, Case No. 2022 CA 00080 5
Appellee suffered as a result of Appellant’s behavior. Collins corroborated Appellee’s
testimony as to the effects Appellant’s behavior had on her.
{¶11} Appellant testified he met Appellee on “a sugar daddy site called Seeking
Arrangements” in 2017. Id. at 107.2 Appellant stated the parties reconnected in 2020,
on the same site. He described his relationship with Appellee as “turbulent.” Appellant’s
only criminal history was a DUI in 1996, and a second DUI in 2003. When asked to explain
why he picked up a pair of scissors during the July, 2021 argument, Appellant stated it
was “for a joke.” Id. at 110. Appellant disagreed with Appellee’s version of the events of
the July, 2021 argument. Appellant added he and Appellee “had these arguments all the
time and it seemed like . . . if we weren’t arguing there was something going on.” Id. at
111.
{¶12} Appellant described an incident in September, 2021. He and Appellee had
plans for the weekend. Appellee texted Appellant and told him her friend wanted her to
go a football game. Appellee sent Appellant screenshots of the text messages between
herself and her friend, which revealed the football game was actually a double-date.
Appellant confronted Appellee and an argument ensued. Appellant conceded he “did use
some harsh words,” calling Appellee’s actions “whore-ish behavior.” Id. at 116. The
parties attempted counseling, but broke up in October, 2021. Appellant returned
Appellee’s house key and the parties arranged for Appellee to collect her belongings.
{¶13} Appellee texted Appellant a birthday greeting in early November, 2021, and
the parties began to date again. Appellant maintained Appellee contacted him and “tried
sucking me back into the relationship.” Id. at 121. On February 13, 2022, the parties
2Appellee, who appeared pro se, objected to Appellant’s testimony the parties met in 2017, calling it “a lie.”
Tr. at 107.
Licking County, Case No. 2022 CA 00080 6
planned a Valentine’s Day dinner. Appellee arrived two hours late. Appellant stated he
knew Appellee, who had been sober for approximately one year, had been drinking. An
argument ensued and Appellant asked Appellee to leave. The next day, Appellant went
to Appellee’s home because he “wanted closure.” Id. at 130. Because Appellee’s
daughter was with Appellee, Appellant did not think it was an appropriate time for the
conversation and he left. On February 15, 2022, Appellant found a Valentine’s Day card
in his mailbox. There was no stamp on the envelope and the envelope was simply
addressed “Travis.” Appellant proceeded to Appellee’s home to talk. Appellant
adamantly denied forcing his way into Appellee’s home. Appellant stated the key he used
to enter Appellee’s house was a key she had given him.
{¶14} Appellant admitted he contacted Appellee’s employer and the Ohio Board
of Nursing in retaliation for Appellee’s damaging his new relationship and her harassment
of him. Appellant added he was also “concerned” as “people are trusting her for
healthcare and she’s, you know, not taking it serious and – and – doing these things.” Id.
at 141. Appellant asserted he had not had any contact with Appellee since February 15,
2022. He indicated the CPO was interfering with his life and Appellee was using it as a
weapon against him.
{¶15} On July 5, 2022, the magistrate issued a Dating Violence Civil Protection
Order (DVCPO) Full Hearing (R.C. 3113.31), effective until May 25, 2025. The magistrate
also issued Findings of Fact and Conclusions of Law. Appellant filed objections to the
magistrate’s decision, arguing there was insufficient evidence to establish a “pattern of
conduct” and “mental distress,” and his First Amendment Rights were violated. Via
Judgment Entry and Opinion filed September 12, 2022, the trial court overruled
Licking County, Case No. 2022 CA 00080 7
Appellant’s objections to the magistrate’s order and upheld the CPO with following
modification: “The terms of the Civil Protection Order shall be effective until May 25,
2023.” September 12, 2022 Judgment Entry.
{¶16} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. THE TRIAL COURT ERRED IN ISSUING A CIVIL STALKING
PROTECTION ORDER AGAINST APPELLANT-RESPONDENT AS
APPELLEE-PETITIONER FAILED TO ESTABLISH BY A
PREPONDERANCE OF COMPETENT, CREDIBLE EVIDENCE THAT (1)
THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH THAT
APPELLANT-RESPONDENT ENGAGED IN A “PATTERN OF CONDUCT”
AS DEFINED IN THE MENACING BY STALKING STATUTE, OHIO
REVISED CODE 3902.211(D)(1) FOR A STALKING CIVIL PROTECTION
ORDER, PURSUANT TO OHIO REVISED CODE 2903.214; (2) THERE
WAS SUFFICIENT EVIDENCE THAT APPELLEE-PETITIONER
SUFFERED FROM “MENTAL DISTRESS” AS A RESULT OF
APPELLANT-RESPONDENT AS DEFINED IN OHIO REVISED CODE
2903.211(D)(2); OR IN THE ALTERNATIVE, THE COURT ABUSED ITS
DISCRETION IN GRANTING THE APPELLEE’S PETITION FOR A
STALKING CIVIL PROTECTION ORDER.
II. APPELLANT-RESPONDENT’S FIRST AMENDMENT RIGHTS
WERE VIOLATED WHEN THE TRIAL COURT RELIED ON APPELLANT-
Licking County, Case No. 2022 CA 00080 8
RESPONDENT’S CALL TO THE OHIO BOARD OF NURSING AS A
FACTOR IN DECIDING TO ISSUE A CIVIL STALKING PROTECTION
ORDER.
Standard of Review
{¶17} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court. Singhaus v. Zumbar, 5th Dist. Tuscarawas No.
2015AP020007, 2015-Ohio-4755. Therefore, an appellate court should not reverse the
decision of the trial court absent an abuse of discretion. To find an abuse of discretion,
we must determine the trial court's decision was unreasonable, arbitrary, or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶18} A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517. The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180(1990). The trier of fact “has the best opportunity to view the demeanor, attitude, and
credibility of each witness, something that does not translate well on the written page.”
Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
I
{¶19} In his first assignment of error, Appellant asserts the trial court erred in
granting a CPO against him because Appellee failed to establish by a preponderance of
Licking County, Case No. 2022 CA 00080 9
the evidence he engaged in a pattern of conduct and she suffered mental distress as a
result. We disagree.
{¶20} In order to obtain a domestic violence civil protection order pursuant to R.C.
3113.31, the petitioner must prove by a preponderance of the evidence the respondent
has engaged in an act of domestic violence against petitioner or petitioner's family or
household members. Felton v. Felton, 79 Ohio St.3d 34, 42, 679 N.E.2d 672 (1997).
“Preponderance of the evidence” is “evidence which is of greater weight or more
convincing than the evidence which is offered in opposition to it; that is, evidence which
as a whole shows that the fact sought to be proved is more probable than not.” Horne v.
Stafford, 5th Dist. Fairfield No. 20-CA-17, 2020-Ohio-5073, 2020 WL 6306049, ¶ 10
(Citation omitted).
{¶21} R.C. 3113.31(A)(1) defines the term “domestic violence,” in relevant part,
as follows:
The occurrence of one or more of the following acts against a family
or household member:
**
(ii) Placing another person by the threat of force in fear of imminent
serious physical harm or committing a violation of section 2903.211
[Menacing by Salking] or 2911.211 of the Revised Code [Aggravated
Trespass].
R.C. 3113.31(A)(1)(a)(ii).
Licking County, Case No. 2022 CA 00080 10
{¶22} The trial court found Appellee established, by a preponderance of the
evidence, Appellant committed domestic violence by engaging in menacing by stalking,
in violation of R.C. 2903.211, which provides, in relevant part:
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.
R.C. 2903.211.
{¶23} “Pattern of Conduct” means:
[T]wo 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. * * * 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,
* * * may constitute a “pattern of conduct.”
R.C. 2903.211(D)(1).
Licking County, Case No. 2022 CA 00080 11
{¶24} “Mental distress” means any of the following:
Any mental illness or condition that involves some temporary
substantial incapacity;
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.
R.C. 2903.211(D)(2).
{¶25} “Mental distress need not be incapacitating or debilitating.” A.V. v.
McNichols, 4th Dist. Hocking No. 18CA17, 2019-Ohio-2180, 137 N.E.3d 534, ¶ 22
(Internal quotations and citation omitted). However, “mental distress for purposes of
menacing by stalking is not mere mental stress or annoyance.” McKinley v. Kuhn, 4th
Dist. Hocking No. 10CA5, 2011-Ohio-134, 2011 WL 281135, ¶ 17 (Internal quotations
and citation omitted). Rather, an “[i]ncapacity [from a “mental illness”] is substantial if it
has a significant impact upon the victim's daily life, such as causing a change in one's
routine.” McNichols, supra at ¶ 22 (Citation omitted).
{¶26} The record establishes Appellant called Appellee’s place of employment on
several occasions while she was on vacation, not only inquiring as to her work schedule,
but also making allegations to her supervisor Appellee was using illegal drugs, consuming
alcohol prior to starting her workday, and stealing medication from patients. Appellant
conceded he called Appellee’s employer in retaliation for her actions since their break-
Licking County, Case No. 2022 CA 00080 12
up. Appellant indicated he heard Appellee was given a breathalyzer while at work as a
result of his allegations. Appellant also contacted the Ohio Board of Nursing to report
Appellee’s conduct, which he knew could potentially lead to her having her nursing license
revoked.
{¶27} Additionally, on February 15, 2022, Appellant went to Appellee’s home.
Appellant explained he wanted to confront Appellee for “closure” after the termination of
their relationship. After knocking on the door with no response, Appellant let himself into
the residence with a key he had copied without permission. Appellee was on the phone
with her mother when Appellant entered. Appellant yelled and threatened Appellee when
he learned her mother had called the police. During a prior incident in July, 2021, when
the parties were arguing, Appellant picked up a pair of scissors and began twirling them
around his fingers. Appellant rationalized he was twirling the scissors as a “joke” and he
could have twirled one of the knives on the kitchen counter instead.
{¶28} Appellee testified the above incidents, as well as other events, caused her
to suffer severe mental distress. Appellee indicated she was unable to eat, work, and
sleep. Appellee was afraid to stay in her home alone, having family or friends stay with
her. She was also afraid to go to the grocery store alone. Appellee’s mother corroborated
her testimony.
{¶29} Based upon the foregoing, we find Appellee established by a
preponderance of the evidence Appellant engaged in a pattern of conduct in an attempt
to harass and/or intimidate Appellee, and as a result of this conduct, Appellee suffered
mental distress which significantly affected her daily life. Accordingly, we find the trial
court did not abuse its discretion in issuing a civil protection order against Appellant.
Licking County, Case No. 2022 CA 00080 13
{¶30} Appellant’s first assignment of error is overruled.
II
{¶31} In his second assignment of error, Appellant contends his First Amendment
Rights were violated when the trial court relied upon his call to the Ohio Board of Nursing
as a factor in deciding to issue the CPO. We disagree.
{¶32} Ohio courts have held R.C. 2903.211 does not chill constitutionally
protected speech or conduct. State v. Smith, 126 Ohio App.3d 193, 210, 709 N.E.2d 1245(1998). In Smith, the Seventh District Court of Appeals found, “Appellant was not
prosecuted because he picketed an abortion clinic, he was prosecuted because he
engaged in a pattern of conduct which caused the complainant mental distress and
caused him to believe that appellant would cause him physical harm.” Id. “We do not
believe it is fairly within the protection of the First Amendment's guarantee of free speech
to knowingly cause another to believe one will cause physical harm or mental distress to
him or her by engaging in two or more actions or incidents closely related in time.” Kreuzer
v. Kreuzer, 144 Ohio App.3d 610, 614, 761 N.E.2d 77 (2001) (Citation and emphasis
omitted).
{¶33} Appellee testified as to the great deal of mental distress and fear she
experienced as a result of Appellant’s repeated phone calls to her employer and report to
the Ohio Board of Nursing, alleging Appellant used illegal drugs, drank alcohol before
work, and stole prescription medication from patients, which resulted in an investigation
of Appellee. Although the investigation was subsequently closed, Appellee continued to
experience the mental distress and fear caused by Appellant’s actions. Appellant
Licking County, Case No. 2022 CA 00080 14
admitted he made the call to the Nursing Board in retaliation because, according to
Appellant, Appellee damaged his new relationship and harassed him.
{¶34} Upon review, we find the trial court issued the CPO against Appellant, not
because he exercised his First Amendment right to free speech, but because it found he
engaged in a pattern of conduct which caused Appellee mental distress. This conduct is
not within the protection of the First Amendment's guarantees.
{¶35} Appellant’s second assignment of error is overruled.
{¶36} The judgment of the Licking County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur