Retterer v. Little , 2012 Ohio 131 ( 2012 )

[Cite as Retterer v. Little, 2012-Ohio-131.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
RORY S. RETTERER,
PETITIONER-APPELLEE, CASE NO. 9-11-23
v.
MICHAEL J. LITTLE, OPINION
RESPONDENT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2011 CV 0283
Judgment Affirmed and Cause Remanded
Date of Decision: January 17, 2012
APPEARANCES:
J. C. Ratliff and Jeff Ratliff for Appellant
Michael N. Schaeffer and Scott N. Schaeffer for Appellee
Case No. 9-11-23
ROGERS, P.J.
{¶1} Respondent-Appellant, Michael Little (“Michael”), appeals the
judgment of the Court of Common Pleas of Marion County granting Petitioner-
Appellee, Rory Retterer (“Rory”), and his wife, Lorinda Retterer (“Lorinda”), a
civil stalking protection order (“CSPO”) against Michael. On appeal, Michael
contends that the record contains insufficient evidence to support the issuance of
the CSPO for Rory; that the record contains insufficient evidence to support the
issuance of the CSPO for Lorinda; that granting Rory the CSPO was against the
manifest weight of the evidence; and, that including Lorinda as a protected person
under the CSPO was against the manifest weight of the evidence. Based on the
following, we affirm the judgment of the trial court.
{¶2} On April 27, 2011, Rory filed a petition seeking a CSPO against
Michael, on behalf of himself and Lorinda. That same day, the trial court issued
an ex parte protection order and scheduled the matter for a full hearing.
{¶3} On May 10, 2011, the matter proceeded to a full hearing during which
the following evidence and testimony was adduced.
{¶4} Rory and Lorinda (collectively “the Retterers”) testified that they have
resided at 3854 Maple Grove Road for eight years. Michael and Melody Little
(“Melody”), Michael’s wife, (collectively “the Littles”) testified that they have
resided at 3878 Maple Grove Road for ten years. Both properties are located on
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the east side of Maple Grove Road, which runs north and south in Marion County.
The Retterers’ property is located immediately north of the Littles’ property.
{¶5} Rory and Lorinda testified that since 2006 they have been the victims
of routine verbal abuse from Michael. Rory and Lorinda described Michael’s
verbal abuse as being threatening, aggressive, profanity infused speech which is
triggered whenever Michael hears or sees them on their property outside their
residence. Lorinda testified that Michael’s verbal abuse “is not just a minute or
two * * * he stands out there for an extended length of [time] screaming at the top
of his voice.” Hearing Tr., p. 6. Lorinda further explained that during episodes of
Michael’s verbal abuse his entire body shakes as though he is consumed with rage.
Rory and Lorinda testified that they believe Michael’s routine verbal abuse
towards them is meant to provoke an altercation, intimidate, and instill fear.
{¶6} Rory testified that the first incident with Michael occurred in 2006
(hereinafter “the tree-trimming incident”). A dispute arose regarding trees that
were planted on the Retterers’ property along the Littles’ northern property line.
Michael complained that the tree branches were hanging over his property. Rory
testified that Michael trimmed the branches which hung over his property and
threw the branches into his (Rory’s) yard. Rory testified that he attempted to
discuss the matter with Michael in a “civil manner”, but Michael crossed onto his
property and “got into [his] face” telling him to cut the trees down. Hearing Tr., p.
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61. Rory explained that Michael was trembling with rage, clinching his fists, and
made quick movements with his hands while he was yelling at him about the trees.
Rory testified that he was certain Michael was going to cause him physical harm.
Lorinda testified that she witnessed the incident. Lorinda confirmed that Michael
came onto her property and “[got] into [Rory’s] face” and yelled at him about the
trees. Hearing Tr., p. 8. Lorinda testified that Michael’s actions and demeanor
caused her to fear for Rory’s safety so much so that she ran to a neighbor’s
residence and asked that they contact law enforcement if the situation escalated.
Several days after the incident the Retterers reported the incident to the Marion
County Sheriff, but no charges were filed. Joint Exhibit 1, p. 10.
{¶7} Michael and Melody testified that in 2006 they trimmed portions of
the Retterers’ trees which hung over their property. In order to determine which
branches hung over their property, Michael laid PVC piping along his property
line. Michael testified that he did not cross onto the Retterers’ property when he
trimmed the trees, nor did he have a face-to-face confrontation with Rory. Melody
acknowledged that the Retterers’ contacted the Marion County Sheriff about the
incident, but no charges were filed.
{¶8} Lorinda testified that an incident occurred in the fall of 2007
(hereinafter “the truck incident”). Lorinda was returning home from a church
function at night. As she approached her residence, Lorinda noticed an individual
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run to a truck parked in the Littles’ driveway, which is located on the south side of
the Littles’ property. As Lorinda drove up her driveway towards her garage she
noticed the same truck driving across the Littles’ backyard towards her vehicle
with its headlights on and the horn blaring. Fearing that the truck was going to hit
her vehicle, Lorinda quickly parked her vehicle in the garage and ran into her
residence. Upon entering her residence, Lorinda testified that she was shaking in
fear and informed Rory of the incident and her belief that “[Michael is] trying to
kill me.” Hearing Tr., p. 10. Rory testified that Lorinda was scared and trembling
when she came into the residence after the incident.
{¶9} Lorinda testified that she and Rory had a surveillance system equipped
with cameras installed on the exterior of their residence. One of the surveillance
cameras was positioned over the garage pointing south towards the Littles’
property. Lorinda testified that immediately after the incident she and Rory
reviewed the surveillance video. Petitioner’s Exhibit B. The surveillance video
shows a vehicle driving across the Littles’ property towards the Retterers’ garage
with its headlights on as another vehicle, presumably Lorinda’s vehicle, drives
into the garage.1
{¶10} The following day, the Retterers reported the incident to the Marion
County Sheriff. Joint Exhibit 1, pp. 1-6. Rory and Lorinda testified that they,
1
The surveillance video did not record any sound, thus Lorinda’s testimony provides the only evidence that
the truck’s horn was blaring as it drove towards Lorinda’s vehicle.
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along with a sheriff’s deputy, surveyed the location where Michael’s truck would
have been positioned the previous night and discovered skid marks leading up to
and through the PVC piping Michael had laid to define his property line. Rory
and Lorinda each testified that the skid marks crossed onto their property. Rory
and Lorinda testified that they decided not to press charges.
{¶11} Michael and Melody testified that they have continued problems with
loud music emanating from the Retterers’ residence, as well as barking dogs and
beeping car alarms. On the night of the truck incident, Melody recalled loud
music emanating from the Retterers’ residence causing the walls of her residence
to vibrate. In an effort to quell the music emanating from the Retterers’ residence,
Michael testified that he drove his truck up to, but not over, the Retterers’ property
line, parked it, and honked his horn. Michael testified that a sheriff’s deputy
visited him at work the following day to discuss the incident. Michael testified
that the sheriff’s deputy informed him that Lorinda thought he was going to hit her
vehicle and that she was frightened by his actions. Michael testified that he had no
intention of frightening Lorinda.
{¶12} Shortly after the incident involving the truck, Lorinda became
severely ill and spent much of the following three years in the hospital. Rory
testified that he spent much of that time with Lorinda. Consequently, neither
Rory nor Lorinda spent much time at their residence. However, Rory and Lorinda
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testified that on occasions when they returned to their residence, Michael
continued to verbally abuse them. Rory testified that in 2009, as a result of his
wife’s illness, his father’s recent death, and Michael’s verbal abuse, he took two
months off of work and sought counseling. During this time, Rory testified that he
suffered from stress, migraines, and symptoms of irritable bowel syndrome
(“IBS”). Rory attributed much of his maladies to Michael’s verbal abuse,
testifying that “when [Michael] does the badgering it stresses me out, it causes me
migraines, I’ve come down with symptoms of IBS.” Hearing Tr., p. 69.
{¶13} On April 16, 2011, the Retterers’ hosted a wedding reception for
Lorinda’s brother, Jeremy Pelphrey (hereinafter “the wedding reception incident”).
Pelphrey testified that he and another guest were standing outside the Retterers’
residence while guests were arriving for the reception. During this time, Pelphrey
witnessed Michael yelling profanities and gesturing with clenched fists at guests
who parked their vehicle along the road in front of his property. Pelphrey testified
that the incident made him very uneasy. Though Rory and Lorinda testified that
they did not witness Michael’s behavior towards their guests, Lorinda testified that
Michael’s behavior created an air of concern among the guests.
{¶14} Michael and Melody testified that the Retterers’ did not ask them
whether their guests could park their vehicles along the road in front of their
property. Michael and Melody explained that several of the Retterers’ guests
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parked on their grass along the road.2 Michael and Melody testified that they
asked those guests to park elsewhere. Michael and Melody testified that Michael
did not threaten any of the Retterers’ guests, but Michael testified that he did yell
at guests who parked on their grass along the road.
{¶15} The last incident occurred on April 23, 2011 (hereinafter “the dog
barking incident”). Rory testified that he was working in his garage, when his
dogs started barking towards the trees abutting the Littles’ property. Rory walked
out of his garage to determine why the dogs were barking and saw Michael
standing in the tree line. Rory, without objection, testified that Michael looked at
him and said, “You afraid? Are you - - you think that I’m gonna come over and
kill your puppies?” Hearing Tr., pp. 70-71. Rory continued that Michael followed
this remark stating, “You would be next asshole.” Id. at 71. Rory testified that he
interpreted Michael’s remarks as a threat of physical harm. Three days after the
incident, Rory filed a report with the Marion County Sheriff. Joint Exhibit 1, pp.
7-9. The report contained an allegation that Michael threatened to harm the
Retterers’ dogs, but did not contain an allegation that Michael threatened Rory.
Id.
{¶16} Michael testified that the incident involving the dogs occurred while
he was mowing his lawn. Michael explained that each time he mowed near the
2
At the conclusion of the hearing, the trial court noted that the Retterers’ guests lawfully parked their
vehicles along the road in front of the Littles’ residence.
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Retterers’ property the dogs would start barking. Michael testified that Rory took
no action to quiet his dogs. As a result, Michael testified that he yelled at Rory to
quiet his dogs. Michael testified that he never threatened Rory or his dogs.
{¶17} As a result of the foregoing incidents and Michael’s alleged verbal
abuse, Rory and Lorinda testified that they have significantly altered how they
enjoy their property. Rory testified that he planted trees along his property line
abutting the Littles’ property in an effort to minimize contact with Michael. Rory
and Lorinda testified that they moved all of their outdoor possessions located
nearest to the Littles’ property to the opposite side of their yard. Similarly, Rory,
Lorinda, and Pelphrey testified that family and friends are encouraged to avoid
that portion of their yard nearest to the Littles’ property. Lorinda testified that in
2009 she and Rory attempted to sell their residence because of Michael’s actions,
but abandoned the endeavor due to the market value of their residence.
{¶18} Rory and Lorinda each testified that they fear Michael will cause
them physical harm. Michael, however, testified that he has never intended to
cause the Retterers to be in fear of physical harm or cause them mental distress.
Rory and Lorinda explained that they have delayed seeking a protection order in
the hopes that Michael’s actions towards them would subside. As a result of the
incidents that occurred in April 2011, Rory and Lorinda testified that they sought
the protection order because they could no longer ignore Michael’s actions.
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{¶19} After both parties rested, the trial court found that there was
sufficient evidence to issue the protection order. Specifically, the trial court stated
that the protection order would be issued for a period of four years and that
“[Michael] is * * * to stay at least 60 feet away from Rory Retterer and Lorinda
Retterer.” Hearing Tr., p. 166.3 Despite the trial court’s foregoing statement, we
note that the protection order states that “[r]espondent shall stay away from
protected persons named in this Order, and shall not be present within 500 feet or
60 feet (distance) of any protected persons * * *.” Protection Order, p. 2. Since
this language clearly contravenes the parameters set forth by the trial court during
the hearing, and would otherwise be impossible to obey due to the proximity of
Michael’s residence to the Retterers’ residence, it is clear that the trial court did
not intend the order to prohibit Michael from being present within 500 feet of
Rory or Lorinda.
{¶20} It is from this judgment Michael appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT THE STALKING PROTECTION ORDER FOR
RORY RETTERER.
Assignment of Error No. II
3
We also note that the temporary protection order only required Michael to remain at least 60 feet away
from Rory and Lorinda. See Docket Entry No. 2.
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THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT THE STALKING PROTECTION ORDER FOR
LORINDA RETTERER.
Assignment of Error No. III
THE STALKING PROTECTION ORDER GRANTED FOR
RORY RETTERER IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.
Assignment of Error No. IV
THE STALKING PROTECTION ORDER GRANTED FOR
LORINDA RETTERER IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶21} Due to the nature of Michael’s assignments of error, we elect to
address all four assignments of error together.
Assignments of Error Nos. I, II, III & IV
{¶22} In his first, second, third, and fourth assignments of error, Michael
contends that the record contains insufficient evidence to support the issuance of
the CSPO for Rory and Lorinda, and that the issuance of the CSPO for Rory and
Lorinda was against the manifest weight of the evidence. We disagree.
{¶23} When reviewing a trial court’s decision to grant a civil protection
order, we will not reverse the decision absent an abuse of discretion. Van Vorce v.
Van Vorce, 3d Dist. No. 2-04-11, 2004-Ohio-5646, ¶ 15, citing Kramer v. Kramer,
3d Dist. No. 13-02-03, 2002-Ohio-4383, ¶ 11. An abuse of discretion requires
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more than a mere error of law or judgment. An abuse of discretion implies that
the decision of a court was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the
abuse of discretion standard, a reviewing court may not simply substitute its
judgment for that of the trial court. Id. Further, if there is some competent,
credible evidence to support the trial court’s decision regarding a CSPO petition,
there is no abuse of discretion. Warnecke v. Whitaker, 3d Dist. No. 12-11-03,
2011-Ohio-5442, ¶ 12, citing Ross v. Ross, 64 Ohio St.2d 203, 414 N.E.2d 426(1980).
{¶24} Revised Code section 2903.214 governs the issuance of a CSPO.
This section provides, in relevant part:
(C) A person may seek relief under this section for the person,
or any parent or adult household member may seek relief under
this section on behalf of any other family or household member,
by filing a petition with the court. The petition shall contain or
state all of the following:
(1) An allegation that the respondent is eighteen years of age or
older and engaged in a violation of section 2903.211 of the
Revised Code against the person to be protected by the
protection order * * *;
{¶25} To be entitled to a CSPO, the petitioner must show by a
preponderance of the evidence that the respondent engaged in a violation of R.C.
2903.211, Ohio’s menacing by stalking statute, against him or her. Warnecke at ¶
13, citing Kramer at ¶ 14. Similarly, where the petitioner seeks protection of a
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“family or household member” under a CSPO, the petitioner must show by a
preponderance of the evidence that the respondent engaged in a violation of R.C.
2903.211 against the “family or household member” to be protected. See Luikart
v. Shumate, 3d Dist. No. 9-02-69, 2003-Ohio-2130, ¶ 11 (determining that
respondent did not engage in a pattern of conduct against petitioner’s wife and
children, on whose behalf petitioner listed as persons to be protected under the
CSPO).
{¶26} R.C. 2903.211 provides, in relevant part:
(A)(1) 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.
Accordingly, pursuant to R.C. 2903.211, the petitioner must establish that the
respondent (1) engaged in a pattern of conduct, (2) which he or she knew (3)
would cause the person(s) to be protected under the CSPO to believe that he or she
will cause him or her physical harm or mental distress.
Pattern of Conduct
{¶27} Michael first contends that Rory failed to establish that he engaged in
a pattern of conduct for the purposes of R.C. 2903.211(A)(1). Upon review of the
record, we find that the record contains competent, credible evidence that
sufficiently demonstrates that Michael engaged in a pattern of conduct that would
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cause Rory and Lorinda to believe that he would cause them physical harm or
mental distress.
{¶28} R.C. 2903.211(D)(1) defines pattern of conduct as:
[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.
{¶29} Notably, the statute does not define “closely related in time.” “In
failing to delimit the temporal period within which the two or more actions or
incidents must occur, the statute leaves that matter to be determined by the trier of
fact on a case-by-case basis.” Ellet v. Falk, 6th Dist. No. L-09-1313, 2010-Ohio-
6219, ¶ 22, citing State v. Dario, 106 Ohio App.3d 232, 238, 665 N.E.2d 759 (1st
Dist. 1995). In determining whether the actions or incidents described during the
CSPO hearing constituted a pattern of conduct the trier of fact should consider the
“evidence in the context of all the circumstances of the case.” Middletown v.
Jones, 167 Ohio App.3d 679, 2006-Ohio-3465, ¶ 10 (12th Dist.), quoting State v.
Honeycutt, 2d Dist. No. 19004, 2002-Ohio-3490, ¶ 26. Therefore, depending upon
the particular circumstances, a pattern of conduct can arise out of two or more
actions or incidents occurring on the same day, Shockey v. Shockey, 5th Dist. No.
08CAE070043, 2008-Ohio-6797, ¶ 19, citing State v. Scruggs, 136 Ohio App.3d
631, 634, 737 N.E.2d 574 (2d Dist. 2000), or it may consist of two or more
intermittent actions or incidents occurring over a period of years. Ellet at ¶ 25; see
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also Middletown at ¶ 11, and Berry v. Patrick, 8th Dist. No. 85255, 2005-Ohio-
3708, ¶ 14-15.
{¶30} Though we presume the trial court found that Michael engaged in a
pattern of conduct against Rory and Lorinda, we note that the trial court, in
granting the CSPO, did not enter findings of fact as to which actions or incidents
constituted a pattern of conduct. Nevertheless, review of the record reveals that
the trial court was presented with four specific incidents between Michael and the
Retterers, to wit: the tree-trimming incident; the truck incident; the wedding
reception incident; and, the dog barking incident. In addition to those four
incidents, the trial court also heard testimony concerning Michael’s routine verbal
abuse towards Rory and Lorinda. Based on the four incidents and Michael’s
verbal abuse, Rory maintains that Michael engaged in a pattern of conduct
prohibited by R.C. 2903.211(A)(1).
{¶31} Of the four incidents testified to during the hearing, we find that the
wedding reception incident does not support a finding that Michael engaged in a
pattern of conduct that would cause Rory or Lorinda to believe that he was going
to cause either of them physical harm or mental distress. Pelphrey, a guest at the
wedding reception, testified that he witnessed Michael yelling profanities at guests
who parked their vehicles along the portion of the road that abutted the Littles’
property. Rory and Lorinda each testified that they did not witness Michael’s
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actions towards their guests, but were nonetheless aware of Michael’s actions.
Michael conceded that he yelled at guests who attempted to park their vehicles
along the portion of the road that abutted his property, explaining that their
vehicles were parked on what he perceived to be his yard. Viewing this incident
in its entirety, Michael’s actions that day appear to be that of a landowner
attempting to prohibit what he perceived to be an unauthorized trespass on his
property, and were not directed at the Retterers. Accordingly, we do not find that
Michael’s actions that day could be construed as causing Rory or Lorinda to
believe that Michael was going to cause either of them physical harm or mental
distress.
{¶32} Aside from the wedding reception incident, the Retterers testified
that in 2006, during a dispute over tree limbs hanging over the Littles’ property,
Michael came onto the Retterers’ property and got “in [Rory’s] face” and yelled at
him while clinching his fists and making quick movements with his hands
(Hearing Tr. Pp. 8, 61); that in 2007 Michael drove his truck towards Lorinda’s
vehicle as she drove up her driveway; that on April 23, 2011, Michael threatened
to kill Rory; and, that Michael has verbally abused them on a routine basis since
2006. In response to each of the foregoing incidents, Michael provided either an
innocent explanation for his conduct, a different version of events, or highlighted
inconsistencies in the Retterers’ testimony in an attempt to discredit the same. As
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the trier of fact, the trial court was “free to believe all, part, or none of the
testimony of any witness who appear[ed] before it.” Smith v. Wunsch, 162 Ohio
App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 22 (4th Dist.). Moreover, while
Michael “either refuted or explained each incident alleged by [the Retterers], the
trial court determines ‘what weight and credibility to afford the appellant’s version
of the events and the appellee’s version of the events.’” Gruber v. Hart, 6th Dist.
No. OT-06-011, 2007-Ohio-873, ¶ 19, quoting Wunsch at ¶ 22. Here, the trial
court clearly gave more weight and credibility to the Retterers’ version of events.
Upon independent review of the record, we cannot say that the trial court erred in
giving more weight and credibility to the Retterers’ version of events as the record
contained competent, credible evidence to support the same.
{¶33} Viewing Michael’s conduct towards the Retterers together, we are
not persuaded by Michael’s contention that the evidence offered at trial was
insufficient to establish that he engaged in a pattern of conduct that would cause
Rory and Lorinda to believe that he would cause them physical harm or mental
distress. First, the record contains evidence of at least two or more “actions or
incidents” which caused Rory and Lorinda to believe that Michael was going to
cause them physical harm or mental distress. Secondly, though each of the
specific incidents occurred over a period of five years, that fact alone does not
prohibit a finding that the Michael engaged in a pattern of conduct for purposes of
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R.C. 2903.211(A)(1). See Rosen v. Chesler, 9th Dist. No. 08CA009419, 2009-
Ohio-3163, ¶ 14 (pattern of conduct occurred over two-year period); Lias v.
Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 22 (pattern of conduct
occurred over sixteen-year period); Middletown at ¶ 11 (pattern of conduct
occurred over a four-year period). In determining whether the respondent engaged
in a pattern of conduct the court must consider the “evidence in the context of all
the circumstances of the case.” Middletown at ¶ 10. The record reveals that
Michael’s conduct towards the Retterers was neither random nor remote. Indeed,
the specific incidents testified to during the hearing were separated by a year or
more. However, Rory and Lorinda testified that during the periods of time
between each incident Michael verbally abused them whenever he heard or saw
them on their property outside their residence. Considering the evidence in the
context of all the circumstances of the case, we find that the trial court did not err
when it concluded that Michael engaged in a pattern of conduct for purposes of
R.C. 2903.211(A)(1).
Knowingly
{¶34} Next, Michael contends that he could not have known that his actions
towards the Retterers caused them to believe that he would cause them physical
harm or mental distress. Upon review of the record, we find that the record
contains competent, credible evidence that sufficiently demonstrates that Michael
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knew that his actions would cause Rory and Lorinda to believe that he would
cause them physical harm or mental distress.
{¶35} Knowingly is defined as follows:
A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances
probably exist. R.C. 2901.22(B)
Consequently, a petitioner seeking a CSPO under R.C. 2903.214 is not required to
prove purpose or intent to cause physical harm or mental distress. Ellet, 6th Dist.
No. L-09-1313, 2010-Ohio-6219, at ¶ 30.
{¶36} During the hearing, the trial court heard testimony regarding
Michael’s routine verbal abuse of Rory and Lorinda, as well as three specific
incidents, to wit: the tree-trimming incident; the truck incident; and, the dog
barking incident. The trial court also heard testimony that the Retterers contacted
law enforcement after each incident and that Michael was aware of the same.
Though Michael maintains that the he could not have known that the foregoing
conduct caused the Retterers to believe that he would cause them physical harm or
mental distress, the trial court, based on the nature of the foregoing incidents and
the Retterers’ response thereto, could reasonably conclude that Michael engaged
in a pattern of conduct with knowledge that his conduct caused Rory and Lorinda
to believe that he would cause them physical harm or mental distress.
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{¶37} Accordingly, we find that the trial court did not err when it
concluded that Michael engaged in a pattern of conduct with knowledge that his
conduct would cause Rory and Lorinda to believe that he would cause them
physical harm or mental distress.
Belief of Physical Harm or Mental Distress
{¶38} Last, Michael contends that he neither caused Rory nor Lorinda to
believe that he was going to cause them physical harm or mental distress. Upon
review of the record, we find that the record contains competent, credible evidence
that sufficiently demonstrates that Michael’s actions did cause Rory and Lorinda
to believe that he would cause them physical harm or mental distress.
{¶39} By its very language, R.C. 2903.211(A)(1) does not require the
petitioner to demonstrate that the person(s) to be protected under the CSPO
actually suffered physical harm or mental distress. Dayton v. Davis, 136 Ohio
App.3d 26, 32, 735 N.E.2d 939 (2d Dist. 1999). Rather, the petitioner merely has
to demonstrate that the respondent knowingly caused the person(s) to be protected
under the CSPO to believe that the respondent would cause him or her physical
harm or mental distress. Warnecke, 3d Dist. No. 12-11-03, 2011-Ohio-5442, at ¶
14.
{¶40} R.C. 2903.211(D)(2) defines mental distress as either of the
following:
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(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.
{¶41} “[M]ental distress for purposes of menacing by stalking is not mere
mental stress or annoyance.” Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-
Ohio-1034, ¶ 29. R.C. 2903.211 requires evidence that the person(s) to be
protected under the CSPO developed a mental condition that involved some
temporary substantial incapacity or that would normally require mental health
services. R.C. 2903.211(D)(2). The statute does not, however, require proof that
the victim sought or received treatment for mental distress. State v. Szloh, 189
Ohio App.3d 13, 2010-Ohio-3777, 937 N.E.2d 168, ¶ 27 (2d Dist.). Nor does the
statute require that the mental distress be totally or permanently incapacitating or
debilitating. See Lias, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, at ¶ 16.
“Incapacity is substantial if it has a significant impact upon the victim’s daily life.”
State v. Horsley, 10th Dist. No. 05AP-350, 2006-Ohio-1208, ¶ 48. Thus,
testimony that the respondent’s conduct caused the person(s) to be protected under
the CSPO considerable fear and anxiety can support a finding of mental distress
under R.C. 2903.211. See Horsley at ¶ 47-48; Middletown, 167 Ohio App.3d 679,
2006-Ohio-3465, 856 N.E.2d 1003, at ¶ 8. Additionally, evidence of changed
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routine can corroborate a finding of mental distress. Wunsch, 162 Ohio App.3d
21, 2005-Ohio-3498, 832 N.E.2d 757, at ¶ 20, citing Noah v. Brillhart, 9th Dist.
No. 02CA0050, 2003-Ohio-2421, ¶ 16, and State v. Scott, 9th Dist. No. 20834,
2002-Ohio-3199, ¶ 14.
{¶42} Though we presume the trial court found that Michael’s pattern of
conduct caused Rory and Lorinda to believe that he would cause them physical
harm or mental distress, we note that the trial court, in granting the CSPO, did not
enter findings of fact as to whether Michael’s pattern of conduct caused Rory and
Lorinda to believe that he would cause them physical harm, mental distress, or
both. Nevertheless, review of the record reveals that there was competent,
credible evidence that sufficiently demonstrates that Michael’s pattern of conduct
caused Rory and Lorinda to believe that he would cause them physical harm or
mental distress.
{¶43} During the hearing, the trial court heard testimony from Rory and
Lorinda concerning their respective beliefs that Michael would cause them
physical harm. Rory testified that he believed Michael was going to cause him
physical harm as a result of his actions during the tree-trimming incident and the
dog barking incident. Considering the nature of the tree-trimming incident and the
dog barking incident, it is reasonable to conclude that Rory believed that Michael
would cause him physical harm. As for Lorinda, she testified that she believed
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Michael attempted to kill her during the truck incident, consequently causing her
to believe that Michael was going to cause her physical harm. Although Michael
maintains that he did not intend to cause Lorinda to believe that he was going to
cause her physical harm, the trial court was free to disbelieve Michael’s testimony.
Considering the nature of the incident, especially in light of the surveillance video
which recorded the incident, it is reasonable to conclude that Lorinda believed that
Michael would cause her physical harm.
{¶44} The trial court also heard testimony from Rory and Lorinda
concerning their respective beliefs that Michael would cause them mental distress.
Instead of believing that Michael was going to cause him mental distress, Rory
testified that he has suffered mental distress as a result Michael’s pattern of
conduct. In 2009, Rory took two months off of work and sought counseling as a
result of Michael’s pattern of conduct, his father’s recent death, and Lorinda’s
illness. Rory also testified that during this period of time he suffered from various
maladies, including stress, migraines, and symptoms of IBS. Though Rory’s
maladies and decision to take time off of work and seek counseling may have, in
part, resulted from his father’s recent death and Lorinda’s illness, as Michael
contends, Rory also testified that his maladies and decision to take time off of
work to seek counseling was, in part, due to Michael’s pattern of conduct. There
is no requirement that one’s mental distress must solely be attributable to the
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respondent’s pattern of conduct in order to satisfy the final element of R.C.
2903.211(A)(1). Consequently, we find that a trial court may reasonably conclude
that in situations where a person seeking protection under a CSPO testifies that
their mental distress was caused, in part, by the respondent’s pattern of conduct
such evidence is sufficient to establish the final element of R.C. 2903.211(A)(1).
As for Lorinda, she testified that Michael’s pattern of conduct caused her to live in
fear.
{¶45} Furthermore, the record contains evidence that Michael’s conduct
caused Rory and Lorinda to alter their lifestyle. Rory and Lorinda each testified
that they only utilize the portion of their yard furthest away from the Littles’
property to avoid contact with Michael. Rory testified that he planted trees near
the Littles’ property line in an effort to minimize contact with Michael. Lorinda
testified that she and Rory attempted to sell their residence in 2009 as a result of
Michael’s conduct, but abandoned the endeavor due to the market value of their
residence.
{¶46} Considering the foregoing testimony, we find that there is competent,
credible evidence that sufficiently demonstrates that Michael’s pattern of conduct
caused Rory and Lorinda to believe that he would cause them physical harm or
mental distress.
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{¶47} In light of the foregoing, we find that the trial court did not abuse its
discretion when it granted Rory and Lorinda the CSPO. Accordingly, we overrule
Michael’s first, second, third, and fourth assignments of error.
{¶48} Having found no error prejudicial to Appellant herein, in the
particulars assigned and argued, we affirm the issuance of the CSPO, but remand
the judgment of the trial court for further proceedings, but only to clarify the
mandatory distance of separation between Appellant and Appellee and his wife in
the protection order.
Judgment Affirmed and
Cause Remanded
SHAW, P.J. and WILLAMOWSKI, J., concur.
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