M.B. v. Mettke , 2022 Ohio 4166 ( 2022 )

[Cite as M.B. v. Mettke, 2022-Ohio-4166.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[M.B.], :
Petitioner-Appellee, : No. 21AP-620
(C.P.C. No. 21CV-2072)
v. :
(REGULAR CALENDAR)
Richard Mettke, Sr., :
Respondent-Appellant. :
D E C I S I O N
Rendered on November 22, 2022
On brief: Trolinger Law Offices, LLC, and Christopher L.
Trolinger, for appellant. Argued: Christopher L. Trolinger.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, P.J.
{¶ 1} Respondent-appellant, Richard Mettke, Sr., appeals from a judgment of the
Franklin County Court of Common Pleas granting a civil stalking protection order ("CSPO")
to petitioner-appellee, M.B. For the reasons that follow, we dismiss the appeal.
I. Facts and Procedural History
{¶ 2} On April 6, 2021, M.B. filed a petition requesting a CSPO against Mettke. The
magistrate granted an ex parte CSPO against Mettke and set the matter for a full evidentiary
hearing. Following the May 10, 2021 hearing, at which both M.B. and Mettke testified, the
magistrate issued a May 19, 2021 decision recommending the trial court grant M.B.'s
petition and issue her a CSPO effective until April 6, 2022. Mettke filed objections to the
magistrate's decision. In a November 2, 2021 decision and entry, the trial court sustained
in part and overruled in part Mettke's objections, adopted the magistrate's decision, and
granted the CSPO. Mettke timely appeals.
No. 21AP-620 2
II. Assignments of Error
{¶ 3} Mettke assigns the following errors for our review:
[1.] The trial court erred and abused its discretion in granting
appellee's petition for a civil stalking protection order as there
was insufficient evidence to support such finding and such was
against the manifest weight of the evidence and contrary to law.
[2.] The trial court erred and abused its discretion in finding
that appellant's pursuit of civil remedies and criminal
enforcement could constitute menacing by stalking for
purposes of R.C. 2903.214 as such is against public policy and
law.
[3.] The trial court erred in finding that appellant utilized law
enforcement to charge, prosecute and maximize appellee's
criminal penalties as a means of manipulating her to rekindle
her relationship with him.
III. Analysis
{¶ 4} Before we address Mettke's assignments of error, we sua sponte consider
whether the appeal is moot given that the CSPO expired on April 6, 2022.
{¶ 5} Pursuant to the mootness doctrine, a court will not decide a case in which
there is no longer any actual controversy. In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597,
¶ 37. This court has recently reiterated the general rule that " 'the expiration of a [civil
protection order] renders an appeal from that order moot.' " A.F. v. R.A.T., 10th Dist. No.
20AP-23, 2021-Ohio-2568, ¶ 5, quoting Foster v. Foster, 10th Dist. No. 11AP-371, 2011-
Ohio-6460, ¶ 4. There is no dispute here that the CSPO had expired prior to the scheduled
oral argument in this appeal. Nonetheless, Mettke asserts the appeal is not moot based on
the collateral consequences exception to the mootness doctrine.
{¶ 6} The Supreme Court of Ohio has held that "absent a showing of legal collateral
consequences resulting from an expired domestic-violence civil protection order, an appeal
of that order is moot." Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, ¶ 1. Although
Mettke suggests that the protection order could adversely affect future reviews of the
security clearance he undergoes for his employment, his argument is purely speculative.
The Supreme Court was explicit in Cyran that "[s]peculation is insufficient to establish a
legally cognizable interest for which a court can order relief using the collateral-
No. 21AP-620 3
consequences exception to the mootness doctrine." Id. at ¶ 11 (declining to find the
application of the collateral consequences exception where the appellant did not
demonstrate or argue that he suffered any actual consequences, but instead argued "that
the possibility of future collateral consequences should preserve his appeal of the expired
order"). (Emphasis added.) "As a result, an appellant that fails to argue that he or she has
suffered any consequences or that merely speculates about the possibility of future
consequences has not demonstrated a legally cognizable interest for which an appellate
court can provide relief." A.F. at ¶ 6, citing Cyran at ¶ 11 (noting that "no provision of Ohio
law * * * imposes a restriction as a result of an expired protection order").
{¶ 7} Here, Mettke does not demonstrate any legal collateral consequences from
the CSPO such that the collateral consequences exception to the mootness doctrine would
apply. A.F. at ¶ 7; Cyran at ¶ 9 ("under current law, the collateral-consequences exception
to mootness applies in cases in which the collateral consequence is imposed as a matter of
law"). As the CSPO at issue expired by its own terms and neither the collateral
consequences exception nor any other exception to the mootness doctrine applies to this
case, we conclude that the questions presented by the appeal are moot. A.F. at ¶ 7-8.
Accordingly, we dismiss the appeal.
IV. Disposition
{¶ 8} Based on the foregoing reasons, the issues raised in this appeal are moot.
Therefore, we dismiss the appeal.
Appeal dismissed.
NELSON, J., concurs.
JAMISON, J., dissents.
NELSON, J., retired, formerly of the Tenth Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).
NELSON, J., concurring.
{¶ 9} I concur in full with the decision of the court because we are bound by the
Supreme Court's instruction in Cyran.
{¶ 10} Although I am sympathetic with the concerns of the dissent, I do not believe
that the "imminent threat" standard that it proposes with regard to possible collateral
No. 21AP-620 4
consequences is derived from or consistent with the majority decision in Cyran. Compare
dissent here at ¶ 24 with Cyran (declining to adopt the probability analysis of the vigorous
dissent there, but looking instead to whether a continuing disability was "impose[d]" as a
matter of law as a result of the expired protection order). Mr. Mettke has not demonstrated
either that loss of his claimed security clearance is a necessary consequence of the expired
protection order, or even that review of such clearance would not be triggered by the
allegations or admitted facts of this matter (as opposed to the fact of the expired order itself).
I join the decision of the court.
JAMISON, J., dissenting.
{¶ 11} I disagree with the decision to dismiss this appeal as moot because I believe
the record shows appellant will experience significant collateral consequences as a result of
the findings made by the trial court in granting the CSPO. Additionally, because appellant
raises a public policy challenge to the CSPO, I believe it is important to reach the merits of
the appeal. For these reasons, I respectfully dissent.
I. FACTS AND PROCEDURAL HISTORY
{¶ 12} At the hearing on the CSPO, appellee told the magistrate that she is afraid of
appellant. Appellee maintained that appellant was terrorizing and harassing her and trying
to destroy her life. Appellee testified that appellant stepped up his pattern of threatening
words and conduct towards her after a protection order issued to her by the domestic
relations court was subsequently dismissed. Appellee submitted evidence in the form of
emails and text messages sent to her by appellant on March 25, 2020, July 19, 2020,
July 24, 2020, December 8, 2020, March 8, 2021, and March 13, 2021. Appellant admitted
that his texts to appellee include the following claims and allegations: "You lied to me and
you got arrested for solicitation. You lied to me and you got arrested for felony drug
possession. Yep ... You can blame me ..... * * * Your probation Violation ... You can blame
me. I pushed the [Grove City] police to file the Felony drug possession charges. I wish you
would have presented your case at the Protection order hearing you would have had more
charges .... All because of you[r] lies. * * * I will see you at the small claims hearing to show
how you defrauded me again ... I have all of your texts. But if you show up, I will have you
No. 21AP-620 5
arrested. * * * Or come back to me on bended knee. You have to ask and see what I say."
(May 18, 2021 Petitioner's Ex. at 7-8.)
{¶ 13} On April 12, 2020, appellant sent a text message to a mutual acquaintance
promising he would do whatever he could to make sure appellee gets jail time. In the same
text, appellant boasted: "I am the one that got [appellee] arrested and am proud of [it]."
(Petitioner's Ex. at 9.) In the text message appellant warns that he will make sure that
appellee's "life as a normal citizen is over" because of her deceitful conduct in causing him
to believe she loved him. (Petitioner's Ex. at 10.) Appellant also sent text messages to
appellee informing her that he had contacted the state police and various local police
departments claiming appellee was a fugitive from justice and providing her address. In
that correspondence, appellant referred to appellee as a "piece of shit Psycho." (Petitioner's
Ex. at 3.)
{¶ 14} In March of 2021, after appellant learned that appellee had been living with
a boyfriend, he sent a letter to the boyfriend informing him that he had turned appellee into
police for being a paid escort. Appellant admitted that he had appellee arrested on an
outstanding warrant when she appeared at a March 16, 2021 hearing in small claims court.
Appellant excused his behavior toward appellee by insisting that she had caused him harm
by deceiving him about their relationship and taking advantage of his generosity.
{¶ 15} Although appellant admitted that he sent numerous correspondence to
appellee in 2020 and 2021, he insisted that none of the emails and texts contained threats.
Appellant did acknowledge that he sent a package to the father of appellee's ex-boyfriend
containing information about the various pending actions against appellee. Appellant
claimed that he did so because he believed appellee still lived at the address. The package
contained several photographs depicting appellant and appellee posing in front of a mirror
in the nude. One of the photographs also depicts a third unidentified and unclothed female
posing with appellant and appellee in a compromising position.1 Appellee testified that
appellant sent the same salacious photograph to appellee's 87-year old grandmother and
aunt who lived in Texas.
1 Though the genitals are scratched out of the photographs, as well as the breasts of the females, the
salacious nature of the photographs are evident.
No. 21AP-620 6
{¶ 16} Appellee told the magistrate that appellant continued to contact her after she
had unequivocally told him she did not want to have any further contact with him. Though
some of appellee's correspondence with appellant suggest equivocation or encouragement
to appellant, the magistrate found her testimony credible on this matter. She also provided
unrebutted testimony that she has received treatment for post-traumatic stress disorder as
a result of appellant's continued harassment.
{¶ 17} When the magistrate asked appellee why she believed appellant would kill
her, she responded that she believes appellants behaviors show that he is mentally unstable.
Appellee also testified that appellant owns multiple firearms, and he keeps one in his truck.
Appellant referred to himself as a "gun enthusiast." (May 10, 2021 Tr. at 28.)
II. MOOTNESS
{¶ 18} Before I address appellant's assignments of error, I must address the
conclusion of the majority that the appeal is mooted by the expiration of the CSPO on
April 6, 2022.
{¶ 19} In Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, the Supreme Court of
Ohio held that in the absence of demonstrated legal collateral consequences, the collateral
consequences exception to the mootness doctrine does not apply to an expired domestic
violence civil protection order. Id. at ¶ 14. The court also declined to establish a rebuttable
presumption that an appeal from an expired domestic violence civil protection order is not
moot. Id. at ¶ 13.
{¶ 20} In Cyran, appellant argued that appellee had sought the domestic violence
civil protection order only as leverage for herself in future post-divorce proceedings. He
also claimed that he faced the possibility of collateral consequences with respect to his
concealed firearm permit and his credit report as well as his ability to obtain housing, drive
certain vehicles, and obtain future employment. In affirming the dismissal of the appeal,
the Supreme Court rejected appellant's argument:
[Appellant] does not demonstrate or argue that he has
suffered any consequences. Rather, he argues that the
possibility of future collateral consequences should preserve
his appeal of the expired order. We are not convinced.
Speculation is insufficient to establish a legally cognizable
interest for which a court can order relief using the collateral-
consequences exception to the mootness doctrine.
No. 21AP-620 7
The presence of a disagreement, however sharp and
acrimonious it may be, is insufficient to create an actual
controversy if the parties to the action do not have adverse
legal interests.
(Internal citation and quotations omitted.) Id. at ¶ 11, ¶ 14.
{¶ 21} Though Cyran sets forth the general rule that an appeal from an expired
CSPO is moot, the language used by Supreme Court in the decision suggests relief under
the collateral consequences exception to the mootness doctrine may be available if
appellant argues and proves that a legally cognizable interest will be affected by the CSPO.
See A.F. v. R.A.T, 10th Dist. No. 20AP-23, 2021-Ohio-2568, ¶ 7, (The appeal is moot
because "the CPOs appealed expired in December 2020, there is no indication that appellee
has sought an extension of the orders, and appellants have not argued or otherwise
demonstrated legal collateral consequences from the CPOs."). I believe appellant
established that a legally cognizable interest will be affected by the expired CSPO in this
case.
{¶ 22} In issuing the CSPO against appellant, the trial court found appellant
committed menacing by stalking in violation of R.C. 2903.211 when he "knowingly engaged
in a pattern of conduct that caused the Petitioner mental distress." (Emphasis
deleted.) (May 19, 2021 Order of Protection at 6.) At the hearing before the magistrate,
appellant expressed his concerns regarding collateral consequences arising from the
issuance of a CSPO:
I'm currently working for a company called Global Systems
Technology where I am a vice president of government
operations and business development, and I'm proud to say
we won a $300 million contract on Friday to support the
Department of Homeland Security. I solve national security
types of problems, higher level, related to chemical, biological,
radiological, nuclear, and explosives. Maintaining of
clearance is important for me for my position.
Plus, you know, it's -- it's also -- you know, like I said, I'm a
gun enthusiast. It's also -- it would also hurt my security
clearance. But I'm -- I'm -- I'm done with her.
(May 10, 2021 Tr. at 28, 53.)
No. 21AP-620 8
{¶ 23} Unlike the appellant in Cyran, appellant herein provided unrebutted
testimony that the CSPO "would * * * hurt my security clearance." (Tr. at 53.) Appellant's
testimony also establishes that his employment as a civilian contractor depends on
maintaining a security clearance. A review of the relevant federal regulations permitting
civilian access to classified materials reveals that appellant's concerns are valid. For
example, 32 C.F.R. 147.12 requires consideration of criminal conduct, whether charged or
uncharged in assessing an applicant's security risk,2 and 32 C.F.R. 147.7 requires
consideration of certain personal conduct in the application process.3 The relevant
regulations also permit reinvestigation of a civilian contractor's security clearance at any
time, and require reinvestigation within five years of a prior investigation. See 32 C.F.R.
147.18-24, subpart B, attachment C.4 Thus, the expired CSPO remains a threat to
appellant's security clearance and his current employment as a civilian contractor. The
regulations further provide that an order from this court vacating the CSPO will mitigate
the negative impact of the expired CSPO, as such an order is equivalent to acquittal. Id.{¶ 24} Based upon appellant's testimony and the relevant federal regulations, which
have the force and effect of law with regard to appellant's security clearance and federal
employment, appellant has established that the findings made by the trial court in granting
2 Title 32 C.F.R. 147 Subpart A, entitled "ADJUDICATIVE GUIDELINES FOR DETERMINING
ELIGIBILITY FOR ACCESS TO CLASSIFIED INFORMATION, provides at "Guideline J-Criminal conduct"
as follows:
(a) The concern: A history or pattern of criminal activity creates doubt about a person's judgment, reliability
and trustworthiness.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Allegations or
admissions of criminal conduct, regardless of whether the person was formally charged; * * *.
(c) Conditions that could mitigate security concerns include:
***
(5) Acquittal. (Emphasis added.)
3 Pursuant to 32 C.F.R. 147.7, "[c]onditions that could raise a security concern and may be disqualifying
also include:
***
(4) Personal conduct * * * that may increase an individual's vulnerability to coercion, exploitation, or duties,
such as engaging in activities which, if known, may * * * render the person susceptible to blackmail."
(Emphasis added.)
4 Title 32 was amended effective September 2022, but the relevant language was not changed.
No. 21AP-620 9
the CSPO create an imminent threat to a legally cognizable interest. Absent reversal on
appeal, those findings are final and unimpeachable. Because appellant has produced
evidence that his security clearance and employment would be negatively affected by the
findings of fact underlying the CSPO, and because the relevant federal regulations establish
a reversal of the trial court's order would mitigate the negative affect, appellant has
demonstrated legal collateral consequences sufficient to invoke the collateral consequences
exception to the mootness doctrine. Under the particular circumstances of this case, I
would find that the expiration of the CSPO did not deprive this court of jurisdiction to
review the merits of appellant's appeal.
III. LEGAL ANALYSIS
{¶ 25} In each of appellant's assignments of error, appellant argues, for slightly
different reasons, the trial court abused its discretion in granting appellee's petition because
appellee presented insufficient evidence to support the CSPO and the CSPO was against the
manifest weight of the evidence. I disagree.
{¶ 26} A decision to grant a CSPO is reviewed for an abuse of discretion. Guthrie v.
Long, 10th Dist. No. 04AP-913, 2005-Ohio-1541, ¶ 9. When considering whether a CSPO
is against the manifest weight of the evidence, an appellate court is guided by a presumption
that the findings of the trier of fact are correct. Lias v. Beekman, 10th Dist. No. 06AP-1134,
2007-Ohio-5737, ¶ 20. The underlying rationale of giving deference to the findings of a
trial court rests with the knowledge that the trial judge is best able to view the witnesses
and observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony. Id. The discretionary power of this
court to grant a new trial when a CSPO has been issued by a trial court should be exercised
only in the exceptional case in which the evidence weighs heavily against the order. Holt v.
Feron, 3d Dist. No. 9-17-43, 2018-Ohio-3318, ¶ 17; Jones v. Hunter, 11th Dist. No. 2008-P-
0015, 2009-Ohio-917, ¶ 23.
{¶ 27} R.C. 2903.214 prescribes the requirements for a CSPO petition.
" '[R.C. 2903.214] provides that a petitioner seeking a civil stalking protection order must
demonstrate that the respondent engaged in the offense of menacing by stalking, in
violation of R.C. 2903.211.' " Lias at ¶ 13, quoting Podeweltz v. Rieger, 2d Dist. No. 21725,
2007-Ohio-1513, ¶ 28. R.C. 2903.211(A)(1) provides that "[n]o person by engaging in a
No. 21AP-620 10
pattern of conduct shall knowingly cause another person to believe that the offender will
cause physical harm * * * or cause mental distress to the other person." The burden of proof
under R.C. 2903.214 requires a petitioner to establish, by a preponderance of the evidence,
that the respondent engaged in conduct constituting menacing by stalking.
R.C. 2903.214(C). Griga v. Dibenedetto, 1st Dist. No. C-120300, 2012-Ohio-6097.
{¶ 28} "When determining what constitutes a pattern of conduct 'courts must take
every action into consideration even if * * * some of the person's actions may not, in
isolation, seem particularly threatening.' " (Internal citation and quotations omitted.)
Collins v. Vulic, 10th Dist. No. 20AP-528, 2021 Ohio App. Lexis 3261 (Sept. 23, 2021), *8.
"One incident alone is not sufficient to establish a pattern of conduct under R.C. 2903.211."
Collins at *7, citing Barium & Chems., Inc. v. Miller, 7th Dist. No. 14JE0030, 2016-Ohio-
5656, ¶ 15, citing State v. Scruggs, 136 Ohio App.3d 631, 634 (2d Dist.2000).
{¶ 29} For purposes of the offense of menacing by stalking, "mental distress" is
defined as: "Any mental illness or condition that involves some temporary substantial
incapacity; [or] [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). Pursuant to R.C. 2901.22(B), "[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."
{¶ 30} In State v. Horsley, 10th Dist. No. 05AP-350, 2006-Ohio-1208, ¶ 47, this
court determined that a CSPO may be issued if it is shown that an offender, by engaging in
a pattern of conduct, knowingly caused the victim to believe that the offender would cause
the victim mental distress. See also Griga, 2012-Ohio-6097. In other words, actual mental
distress on the part of a victim is not a required element of menacing by stalking. Id. In
Griga, for example, the court held that appellant's multiple threats to financially ruin
appellee, followed by his appearance at appellee's workplace, provided sufficient evidence
to support the judgment that the appellant had engaged in a pattern of conduct that
knowingly caused appellee to believe appellant would cause him mental distress. Id. at ¶ 16.
{¶ 31} In overruling appellant's objections to the magistrate's decision, in part, the
trial court agreed with the magistrate that the weight of the evidence showed appellant
No. 21AP-620 11
engaged in a pattern of conduct which knowingly caused appellee mental distress. The
evidence in the record supports the trial court's conclusion.
{¶ 32} Appellant sent multiple correspondence to appellee and others threatening
to aid authorities in maximizing her legal penalties and warning that her life as a "normal
citizen was over" unless she rekindled the relationship between the parties. (Petitioner's
Ex. at 10.) Appellant admitted he sent embarrassing nude photographs of appellee to her
family members. The record also shows that appellant's ex-boyfriend was granted a
protection order against appellant, and that appellant sent him unsolicited information
regarding appellee's participation in escort services. All of these instances of harassment
occurred within a period of less than two years.
{¶ 33} Appellant's correspondence evidence his desire to facilitate appellee's arrest
and prosecution for drug offenses. In a text message appellant sent to one of appellee's
friends, appellant takes credit for having appellee arrested and expresses his satisfaction
for doing so. Our review of the text messages and emails admitted into evidence reveals
appellant's primary goal was to ruin appellee's life and cause her to suffer serious mental
distress as retribution for deceiving and then rejecting him.
{¶ 34} For example, appellant admitted that he encouraged a Deputy Sheriff to
arrest appellee on a bench warrant prior to a hearing she attended in one of the civil cases
appellant had filed against her. Had appellant genuinely wished to pursue his civil remedy
to judgment, rather than causing appellee mental distress, he would not have taken steps
that delayed the hearing. At the CSPO hearing, appellant tried to deny he also caused
appellee to be arrested in 2019, but the magistrate told appellant: "I don't find those
responses to be credible." (Tr. at 46.) Appellant also admitted that prior to the CSPO
hearing in this case, he approached a Deputy Sherriff at the courthouse in an effort to have
appellee jailed for a prior offense. Appellant did not deny that the Deputy Sheriff detained
appellee temporarily until another police officer arrived and it was determined that no jail
time had been ordered. The following exchange regarding the incident is typical of
appellant's unapologetic behavior toward appellee:
[M.B.]: And when I got here today, he was trying to convince
the sheriff's deputy I had to serve five days forthwith in jail for
the -- for the time I went –
No. 21AP-620 12
THE MAGISTRATE: Mr. Mettke, did you do that today? Did
you talk to the sheriff about taking her into custody?
MR. METTKE: I did. If you'll let me -- if you look at the -- if
you look on -- this is -- that's why, if you look at A.
(Indicating.)
THE MAGISTRATE: Mr. Mettke, I don't understand. You say
you don't want to have any involvement with her.
MR. METTKE: I don't want to have any.
THE MAGISTRATE: You don't want to have any contact; but
everything you do seems to be about trying to obtain a pound
of flesh from her, * * *
MR. METTKE: She took a -- she took a pound of flesh from
me.
(Tr. at 54.)
{¶ 35} The magistrate found appellee's testimony credible, and that appellant's
testimony was not. In making this finding, the magistrate found "Petitioner to generally be
credible and Respondent to be evasive and at times not credible [and] * * * Petitioner was
more credible than Respondent." (Emphasis deleted.) (May 19, 2021 Mag.'s
Recommended Order of Protection at 6, 8.) The trial court noted that both parties provided
inconsistent testimony at the hearing, but the trial court ultimately agreed with the
magistrate stating: "Notwithstanding that Petitioner may have acted to deceive Respondent
during the parties' brief romantic relationship, and may have had prior criminal charges
and personal issues, the Court, after viewing her testimony and judging it under the proper
test, finds that her testimony before the magistrate was credible." (Nov. 2, 2021 Decision
& Entry at 12.)
{¶ 36} Appellant argues that public policy prevented the trial court from issuing a
CSPO against him because he was simply exercising his criminal and civil remedies against
appellee. I disagree.
{¶ 37} Contrary to appellant's claim, his right to prosecute civil claims or procure
criminal proceedings against others in Ohio is not unfettered. Indeed, Ohio common law
authorizes a cause of action for abuse of process, where one person uses legal process
against another for an ulterior motive. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A.,
No. 21AP-620 13
68 Ohio St.3d 294 (1994). A cause of action for malicious civil and criminal prosecution is
also recognized in Ohio common law where one person either commences a civil action
against another without probable cause or procures criminal proceedings against another
without probable cause. Id. See also Ash v. Ash, 72 Ohio St.3d 520, 522 (1995). I find no
merit in appellant's public policy argument in this case as R.C. 2903.211(A)(1) and 2903.214
establish the relevant public policy in Ohio with respect to menacing by stalking and
CSPO's. There is no exception in the statutory law for prohibited conduct that occurs in
connection with a civil action or criminal prosecution. If the general assembly had so
intended, the statutory language would reflect that intent.
{¶ 38} This court has previously rejected an argument similar to appellant's. In
Wildi v. Wildi, 159 Ohio App.3d 568, 2005-Ohio-257, ¶ 1 (10th Dist.), a husband was
granted a CSPO against wife. The wife claimed that her offending conduct occurred while
she was acting as her own private investigator in connection with her divorce case, not as a
stalker. The trial court rejected the argument stating that wife's stalking behavior was not
legally excusable, regardless of her purpose. Id. In wife's appeal, this court held that neither
the domestic relations division nor the criminal code precluded a party from seeking a
stalking civil protection order in the general division of a court while an action was pending
in the domestic relations division.
{¶ 39} Pursuant to this court's decision in Wildi, even if the trial court believed
appellant's claim that all of his misconduct occurred in prosecution of civil and criminal
actions against appellee, appellee was not precluded from seeking CSPO if the evidence
showed that appellant had engaged in a pattern of conduct which knowingly caused mental
distress or caused appellee to believe that appellant would cause her mental distress. Id.Moreover, the weight of the evidence produced at the hearing establishes that appellant
engaged in various forms of harassment calculated to inflict emotional distress on appellee
that were unrelated to any civil or criminal proceeding pending against appellee, such as
sending embarrassing nude photographs of appellee to her grandmother and aunt, sharing
embarrassing details of appellee's involvement with escort services with her ex-boyfriend,
contacting appellee by email and text after she had told him to leave her alone, and sending
threatening and boastful correspondence to others promising to ruin appellee's life.
No. 21AP-620 14
{¶ 40} " 'The goal of R.C. 2903.214 is to allow the police and the courts to act before
a victim is harmed by a stalker.' " (Emphasis sic.) Bey v. Rasawehr, 161 Ohio St.3d 79,
2020-Ohio-3301, ¶ 16, quoting Irwin v. Murray, 6th Dist. No. L-05-1113, 2006-Ohio-1633,
¶ 15. In my view, the greater weight of the evidence produced in the trial court reveals a
pattern of troubling behavior by appellant that meets the definition of menacing by stalking
under R.C. 2903.211(A)(1). The preponderance of the evidence supports a finding that
appellant engaged in a pattern of conduct that caused appellee to believe appellant would
cause her mental distress and that appellant's pattern of conduct has, in fact, caused
appellee mental distress requiring treatment. The greater weight of the evidence also
substantiated appellee's claim that she fears appellant and that she is in need of a CSPO to
protect her from future conduct of appellant designed to cause her further mental distress.
{¶ 41} Appellant's text messages and emails to appellee and others demonstrates a
persistent spirit of vindictiveness towards appellee and an insatiable need to make appellee
suffer. Though appellant told the magistrate he had not seen appellee for several months
and has no desire to have any further contact with appellee, appellant admitted that he tried
to have appellee arrested prior to the CSPO hearing in this case. Appellee informed the
court that a hearing is scheduled for "tomorrow" in appellant's pending civil action against
her in small claims court. (Tr. at 14.) Thus, the weight of the evidence demonstrates
appellant's pattern of harassing conduct is ongoing.
{¶ 42} Because the CSPO is supported by sufficient evidence and not against the
manifest weight of the evidence, the trial court did not abuse its discretion when it granted
appellee's petition and issued appellee a CSPO against appellant. Accordingly, I would
overrule appellant's first, second, and third assignments of error and affirm the judgment
of the trial court.
IV. CONCLUSION
{¶ 43} Based on the foregoing, I would find that the appeal was not mooted by the
expiration of the CSPO, overrule the first, second, and third assignments of error, and
affirm the judgment of the trial court. Because the majority does not, I respectfully dissent.