Ramsey v. Pellicioni , 2016 Ohio 558 ( 2016 )

[Cite as Ramsey v. Pellicioni, 2016-Ohio-558.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ANGELA RAMSEY, )
)
PETITIONER-APPELLEE, )
) CASE NOS. 14 MA 134
V. ) 14 MA 135
)
REBECCA AND GARY PELLICCIONI, ) OPINION
)
RESPONDENTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case Nos. 14 CV 514, 14 CV 515
JUDGMENT: Reversed
APPEARANCES:
For Plaintiff-Appellee Attorney Bruce M. Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512
For Defendant-Appellants Attorney Charles E. Dunlap
7330 Market Street
Boardman, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: February 12, 2016
[Cite as Ramsey v. Pellicioni, 2016-Ohio-558.]
DONOFRIO, P.J.
{¶1} Respondents-appellants, Rebecca and Gary Pelliccioni, appeal from
Mahoning County Common Pleas Court judgments granting petitioner-appellee,
Angela Ramsey, civil stalking protection orders against them.
{¶2} Angela Ramsey, and her husband Timothy, are neighbors of the
Pelliccionis. The two families have been in an on-going dispute since 2007,
regarding Mr. Ramsey’s use of his property to run a landscaping business. In 2009,
in a case filed by Mr. Pelliccioni, Mr. Ramsey was found to be in violation of an
Ellsworth Township Zoning Ordinance. Mr. Ramsey subsequently purchased
property across the road from his home. That property is located in a different
township without the zoning restrictions. Mr. Ramsey moved his landscaping
equipment to that property.
{¶3} In February 2014, the Pelliccionis filed a motion to hold Mr. Ramsey in
contempt of the 2009 judgment. During the course of the contempt hearing, the
Pelliccionis submitted several hundred photographs into evidence. These
photographs were of the Ramseys’ property from 2007 to 2014, and some of the
photographs included the Ramseys’ children.
{¶4} During the time when the Pelliccionis were taking the photographs of
the Ramseys’ property, Mr. Ramsey asked them to stop because they were upsetting
his family. The Ramseys contacted the police numerous times between 2007 and
2014, in an effort to stop the Pelliccionis from taking photographs of their property
and family.
{¶5} Mrs. Ramsey filed petitions for civil stalking protection orders (CSPOs)
on February 25, 2014, against both of the Pelliccionis. She sought protection on her
own behalf and on behalf of Mr. Ramsey and their three minor children.
{¶6} A magistrate held a hearing on the petitions where he heard testimony
from Mr. Ramsey and Mr. Pelliccioni and considered numerous exhibits. The
magistrate then issued CSPOs against both Mr. and Mrs. Pelliccioni effective until
July 1, 2016.
{¶7} The Pelliccionis filed objections to the magistrate’s decision stating the
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magistrate lacked sufficient evidence to grant the CSPOs. The trial court overruled
the objections and entered judgments in accordance with the magistrate’s CSPOs.
{¶8} The Pelliccionis each filed a separate timely notice of appeal. This
court consolidated the two appeals. The Pelliccionis now raise two assignments of
error.
{¶9} The Pelliccionis’ first assignment of error states:
THE TRIAL COURT ERRED WHEN IT ADOPTED THE
MAGISTRATE’S DECISION GRANTING THE RAMSEY’S [sic]
MOTION FOR A CIVIL STALKING PROTECTION ORDER.
{¶10} The Pelliccionis argue there was no evidence that they caused mental
distress to the Ramseys. They note there is no allegation that they ever threatened
physical harm. The Pelliccionis go on to argue there is no evidence that the
Ramseys suffered any mental distress. Thus, they assert the evidence did not
support the issuance of the CSPOs.
{¶11} Initially, we must address Mrs. Ramsey’s claim that the Pelliccionis
have waived this issue on appeal by failing to make a specific objection in the trial
court.
{¶12} Pursuant to Civ.R. 53(D)(3)(b)(ii), objections to a magistrate's decision
must be specific and state with particularity the grounds of objection. “Except for a
claim of plain error, a party shall not assign as error on appeal the court's adoption of
any factual finding or legal conclusion * * * unless the party has objected to that
finding or conclusion as required by Civ.R. 53(D)(3)(b).” Civ.R. 53(D)(3)(b)(iv).
{¶13} In this case, the Pelliccionis’ objections stated that “the magistrate
lacked sufficient evidence upon which to grant the petitioner a civil protection order.”
This statement is sufficient to preserve the issue for review on appeal. The
Pelliccionis’ argument on appeal is the same as that stated in their objections, that
there was not sufficient evidence to support the magistrate’s decision. Moreover, we
have found in the past that although objections may be brief and not supported with
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further argument or case law citations, as long as they are specific and state the
grounds for the objections they are adequate to preserve the issue for appeal. Smith
v. Bank of Am., 7th Dist. No. 11-MA-169, 2013-Ohio-4321, ¶18. Thus, the
Pelliccionis have not waived this issue on appeal.
{¶14} When reviewing whether a civil protection order should have been
granted, we employ a manifest weight of the evidence review. Morton v. Pyles, 7th
Dist. No. 11 MA 124, 2012-Ohio-5343, ¶8. In so doing, we examine whether each of
the elements of menacing by stalking were established by the preponderance of the
evidence. Id.{¶15} In applying the manifest weight standard to civil cases, the appellate
court should review the whole record, weigh the evidence and all reasonable
inferences, consider the witnesses’ credibility, and determine whether the trier of fact
clearly lost its way and created such a miscarriage of justice that the court’s order
must be reversed. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In
doing so, the appellate court must always be aware of the presumption in favor of the
finder of fact. Eastley, at ¶21.
{¶16} R.C. 2903.211(A)(1) provides the elements of menacing by stalking:
“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.”
{¶17} A “pattern of conduct” is two or more actions or incidents closely related
in time. R.C. 2903.211(D)(1). In this case, there was evidence that the Pelliccionis
took several hundred photographs of the Ramseys’ property, equipment, and
sometimes family over a seven-year period of time. Thus, there was clearly a
“pattern of conduct.”
{¶18} The question here is whether there was competent, credible evidence
that the pattern of conduct caused the Ramseys to either believe that the Pelliccionis
would cause them physical harm or caused them mental distress.
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{¶19} There was no evidence or allegation regarding fear of physical harm.
Therefore, Mrs. Ramsey had to present evidence that the Pellicionis caused the
Ramseys mental distress.
{¶20} “Mental distress,” as defined by the menacing by stalking statute, is:
(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.
R.C. 2903.211(D)(2). The test is whether mental distress was in fact caused. Caban
v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶23.
{¶21} “[M]ental distress for purposes of menacing by stalking is not mere
mental stress or annoyance.” Caban, 2009-Ohio-1034, ¶29. But evidence of a
changed routine can corroborate a finding of mental distress. Smith v. Wunsch, 162
Ohio App. 3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶20. Additionally, testimony that
the respondent's conduct caused considerable fear and anxiety in the petitioners can
support a finding of mental distress. Retterer v. Little, 3d Dist. No. 9-11-23, 2012-
Ohio-131, ¶41. The temporary incapacity is substantial if it significantly impacts the
petitioner's daily life. Mullen v. Hobbs, 1st Dist. No. C-120362, 2012-Ohio-6098, ¶16.
{¶22} Mr. Ramsey testified that in 2007 or 2008, he attended a meeting at the
Ellsworth Township Zoning Office where Mr. Pelliccioni was present. (Tr. 12). Mr.
Ramsey asked Mr. Pelliccioni to stop taking photographs of his property and his
family. (Tr. 13). Mr. Ramsey told Mr. Pelliccioni that the photographing was
upsetting his family. (Tr. 13).
{¶23} Mr. Ramsey further testified that at the 2014 contempt hearing, Mr.
Pelliccioni introduced approximately 200 photographs of his property. (Tr. 14). He
stated Mr. Pelliccioni admitted to taking these photographs from 2007 until 2013. (Tr.
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14). Mr. Ramsey stated that he called the police numerous times over these years in
an effort to stop the photographing. (Tr. 14).
{¶24} Mr. Ramsey also testified regarding several exhibits.
{¶25} Exhibit 1 was a sheriff’s report dated October 25, 2007. The report
indicated that Mrs. Ramsey complained of Mr. Pelliccioni driving by her house
several times and stopping at the end of her driveway while she was outside with her
two-year-old child. The report indicated that Mr. Pelliccioni admitted stopping at the
Ramseys’ house so that he could take pictures of their property. The report stated
that a “security check” would be posted for Mrs. Ramsey that night since her husband
was not at home.
{¶26} Exhibit 3 was a call log documenting 911 calls from March 8, 2007 to
October 4, 2013. (Tr. 55). It documented complaints by the Ramseys on April 3,
2013, July 18, 2012, July 27, 2011, October 28, 2009, April 19, 2008, that the
Pelliccionis were taking pictures of their property and family. It also documented
other complaints by the Ramseys of their neighbors harassing them on May 14,
2009, November 17, 2008, March 3, 2008, and October 25, 2007.
{¶27} Exhibit 5 included a sheriff’s report dated April 16, 2014. It listed the
victim as Mr. Ramsey, the offense as menacing by stalking, and the method of
operation as “taking photos of residence.” The deputy reported that Mr. Ramsey
complained that Mrs. Pelliccioni was taking photos of his property and family despite
a magistrate’s order for her to cease doing so. The deputy reported that Mr. Ramsey
also stated this issue was “causing a great deal of undue stress on him and his
family.” The deputy also attached a narrative from Mrs. Ramsey. Mrs. Ramsey
stated that she had filed for a CSPO because Mr. and Mrs. Pelliccioni were
“constantly” taking pictures when her children were outside. She further stated that
her “children have come in the house on many occasions stating that the ‘creepy guy’
is outside sneaking around on his roof or back by the property fence.” Mrs. Ramsey
further reported that she feared for her children’s safety and that some of the pictures
that the Pellicionis had brought to court for the zoning issue had nothing to do with
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zoning and were disturbing to her.
{¶28} Exhibit 5 also included a sheriff’s report dated March 19, 2014. In the
report, the deputy reported that Mr. Ramsey stated that Mrs. Pelliccioni was taking
pictures of him while he worked around his house.
{¶29} Exhibit 4 was a supplement to the sheriff’s report dated April 16, 2014.
It listed the victim as Mr. Ramsey, the suspect as Mrs. Pelliccioni, and the offense as
menacing by stalking. The sheriff’s deputy reported that Mr. Ramsey told him that
Mr. Pelliccioni was on the roof taking pictures of Mr. Ramsey’s back and side yards.
Mr. Ramsey also told the deputy that he had installed a privacy fence because of the
Pellicionis taking pictures of his property. Additionally, the Ramseys’ son told the
deputy that Mr. Pelliccioni had been looking over the Ramseys’ fence while he was
playing basketball with a friend.
{¶30} Mr. Ramsey testified that from 2007 to the present, Mr. Pelliccioni has
continued to take pictures of his family. (Tr. 17). He stated this bothers him and
bothers his children. (Tr. 17). Mr. Ramsey also stated, “[i]t causes stress.” (Tr. 17).
{¶31} Mr. Pelliccioni testified that the sheriff’s deputies have approached him
regarding these incidents. (Tr. 60). Mr. Pelliccioni stated that he has taken all of the
photos of the Ramseys’ property because of the zoning issue. (Tr. 61). Mrs.
Ramsey’s counsel asked Mr. Pelliccioni if he was aware that what he was doing was
upsetting the Ramseys to which Mr. Pelliccioni responded, “I would imagine it would
make them upset.” (Tr. 62).
{¶32} The evidence here does not support the issuance of the CSPO. There
was no evidence submitted that the Ramseys suffered serious mental health issues
as a result of the Pelliccionis’ conduct. And there was no evidence that any of the
Ramseys suffered from a condition that involved some temporary substantial
incapacity.
{¶33} The Pelliccionis’ conduct was clearly upsetting and annoying to the
Ramseys. But this is not the standard to prove mental distress. In order to prove
mental distress, Mrs. Ramsey was required to provide evidence of a mental illness or
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condition that either (1) involved “some temporary substantial incapacity” or (2) would
normally require psychiatric treatment, psychological treatment, or other mental
health services. R.C. 2903.211(D)(2). The evidence did not meet this definition of
mental distress.
{¶34} Most of the testimony and evidence concerned incidents dating back
from one to seven years before Mrs. Ramsey filed for the CSPO. Had the
Pelliccionis’ conduct been so distressing, it would seem Mrs. Ramsey would have
filed for a CSPO much sooner. And while the Ramseys contacted the police on
multiple occasions, they did not show that they were at all incapacitated for any
period of time or that their stress reached the level where one would normally require
professional mental health services.
{¶35} Because the evidence failed to establish the requisite “mental distress”
as defined by R.C. 2903.211(D)(2), the trial court erred in granting the CSPOs.
{¶36} Accordingly, the Pelliccionis’ first assignment of error has merit.
{¶37} The Pelliccionis’ second assignment of error states:
THE TRIAL COURT ERRED WHEN IT ADOPTED THE
MAGISTRATE’S DECISION GRANTING THE RAMSEY’S [sic]
MOTION FOR A CIVIL STALKING PROTECTION ORDER AGAINST
REBECCA PELLICCIONI.
{¶38} Here the Pelliccionis assert the CSPO against Mrs. Pelliccioni was not
based on competent, credible evidence. They claim that Mr. Ramsey only mentioned
Mrs. Pelliccioni taking pictures of the Ramseys’ property or family twice during his
testimony and that testimony was very vague.
{¶39} In light of our resolution of the Pelliccionis’ first assignment of error,
their second assignment of error is moot.
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{¶40} For the reasons stated above, the trial court’s judgments are hereby
reversed. The civil stalking protection orders against the Pelliccionis are vacated.
Waite, J., concurs.
Robb, J., concurs.