[Cite as A.D. v. B.D., 2017-Ohio-229.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

A.D.                                                C.A. No.      15CA0095-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
B.D.                                                COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   15DV0197

                                 DECISION AND JOURNAL ENTRY

Dated: January 23, 2017



MOORE, Judge.

        {¶1}     Respondent-Appellant B.D. (“Brother”) appeals from the judgment of the Medina

County Court of Common Pleas, Domestic Relations Division, granting Petitioner-Appellee

A.D. (“Sister”) a domestic violence civil protection order (“CPO”). We reverse.

                                               I.

        {¶2}     After a heated argument at the home of Brother and Sister’s mother (“Mother”)

on Labor Day, September 7, 2015, which resulted in Brother’s wife calling the police, Sister

filed a petition for a CPO pursuant to R.C. 3113.31. An ex parte CPO was subsequently issued,

which included a provision that Brother was to turn over all deadly weapons and that Brother

could not use or possess alcohol or illegal drugs. Following a hearing before a magistrate, at

which both parties proceeded pro se, a full-hearing CPO was granted. Sister and Sister’s three

children were listed as protected parties under the CPO. The full-hearing CPO maintained the

requirements concerning weapons, alcohol, and drugs.
                                                  2


          {¶3}   Brother has appealed, raising three assignments of error for our review. Sister has

not filed a brief in this matter. As such, we “may accept [Brother’s] statement of the facts and

issues as correct and reverse the judgment if [Brother’s] brief reasonably appears to sustain such

action.” App.R. 18(C).

                                                 II.

                                  ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS
          DISCRETION IN FINDING BY A PREPONDERANCE OF THE EVIDENCE
          THAT [SISTER] OR [SISTER’S] FAMILY OR HOUSEHOLD MEMBERS
          ARE IN DANGER OR HAVE BEEN A VICTIM OF DOMESTIC VIOLENCE
          OR SEXUALLY ORIENTED OFFENSES AS DEFINED IN R.C. 3113.31(A)
          COMMITTED BY [BROTHER].

          {¶4}   Brother asserts in his first assignment of error that the trial court’s decision to

grant the CPO was based upon insufficient evidence.

          {¶5}   First, we note that this matter is governed by former Civ.R. 65.1.      Under the

former rule, a CPO “is a final appealable order that may be fully reviewed on appeal with or

without objections being filed in the trial court.” J.B. v. Harford, 9th Dist. Summit No. 27231,

2015-Ohio-13, ¶ 4, quoting A.S. v. P.F., 9th Dist. Lorain No. 13CA010379, 2013-Ohio-4857, ¶

4. Thus, we review the evidence underlying the CPO to determine whether sufficient evidence

was presented or whether the issuance of the CPO was against the weight of the evidence. J.B.

at ¶ 4.

          {¶6}   In evaluating the sufficiency of the evidence, “we must determine whether,

viewing the evidence in the light most favorable to [the petitioner], a reasonable trier of fact

could find that the petitioner demonstrated by a preponderance of the evidence that a civil

protection order should issue.” R.C. v. J.G., 9th Dist. Medina No. 12CA0081-M, 2013-Ohio-

4265, ¶ 7. “In order for a domestic violence CPO to issue, ‘the trial court must find that
                                                3


petitioner has shown by a preponderance of the evidence that petitioner or petitioner’s family or

household members are in danger of domestic violence.’” C.Q. v. P.S., 9th Dist. Medina No.

15CA0065-M, 2016-Ohio-4988, ¶ 9, quoting R.C. at ¶ 8, quoting Felton v. Felton, 79 Ohio St.3d

34 (1997), paragraph two of the syllabus.

       {¶7}   R.C. 3113.31(A) provides that:

       (1) “Domestic violence” means the occurrence of one or more of the following
       acts against a family or household member:

       (a) Attempting to cause or recklessly causing bodily injury;

       (b) 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
       stalking)] or 2911.211 [(aggravated trespass)] of the Revised Code;

       (c) Committing any act with respect to a child that would result in the child being
       an abused child, as defined in section 2151.031 of the Revised Code;

       (d) Committing a sexually oriented offense.

       {¶8}   The offense of aggravated trespass provides that “[n]o person shall enter or

remain on the land or premises of another with purpose to commit on that land or those premises

a misdemeanor, the elements of which involve causing physical harm to another person or

causing another person to believe that the offender will cause physical harm to him.” R.C.

2911.211(A). The offense of menacing by stalking provides, in relevant part, that “[n]o 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.” Former R.C. 2903.211(A)(1). Thus, “R.C. 2903.211(A)(1) permits proof that the

petitioner feared physical harm or suffered mental distress.” R.C. at ¶ 9; see also State v.

Barnhardt, 9th Dist. Lorain No. 05CA008706, 2006-Ohio-4531, ¶ 11 (“[I]n order to show that a

defendant violated R.C. 2903.211, the State must show that the defendant engaged in conduct

that he knew would probably cause the complainant to believe that defendant would harm her or
                                                4


that he knew would ‘probably cause’ the complainant to suffer from mental distress.”); but see

Holloway v. Parker, 3d Dist. Marion No. 9-12-50, 2013-Ohio-1940, ¶ 23, fn.5.

       {¶9}    “‘Pattern of conduct’ means two 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,

or two 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.” Former R.C.

2903.211(D)(1). “Because R.C. 2903.211(D)(1) does not elaborate on the requirement that

incidents must be closely related in time, that question must be considered with reference to all

of the surrounding circumstances.” (Internal quotations and citations omitted.) R.C. at ¶ 12. “A

court must take everything into consideration when determining if a respondent’s conduct

constitutes a pattern of conduct, even if some of the person’s actions may not, in isolation, seem

particularly threatening.” (Internal quotations and citations omitted.) Id. “A series of incidents

may constitute a ‘pattern of conduct’ under the facts of a given case even if spread over the

course of several years or across an intervening gap in time.” Id.

       “Mental distress” means any of the following:

       (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.

Former R.C. 2903.211(D)(2).

       {¶10} Brother and Sister are siblings and thus are family or household members

pursuant to R.C. 3113.31(A)(3)(ii). Neither the magistrate nor the trial court made a specific

finding with respect to which prong of the definition of domestic violence that Sister
                                                5


demonstrated was satisfied. Accordingly, we examine the testimony of the full hearing and

determine whether any prong was satisfied.

       {¶11} The testimony at the full hearing revealed that the incident that precipitated

Sister’s request for a CPO was an altercation that occurred between Sister and Brother at

Mother’s home on Labor Day, September 7, 2015. However, even prior to that date, Sister and

Brother had a history of verbal altercations. On September 7, 2015, Sister and her three children

lived at Mother’s house. Brother and Brother’s wife had gone to the air show with some of their

children but left their son, who was just over a year old, at Mother’s house for her to babysit.

Mother testified that, as the afternoon wore on, she became a little irritated that Brother had not

yet returned to pick up his son. Sister sent Brother a text asking Brother whether he had

forgotten his son. Mother was not happy that Sister had done that as she was afraid it would

cause an argument.

       {¶12} Late in the afternoon, Brother and Brother’s wife returned to Mother’s house to

pick up their son. According to Mother, Brother began asking Sister about the text about his son.

Sister began yelling and screaming and Brother followed suit. Sister asked Brother to leave and

Brother left. After Brother got in the car he received another text message from Sister stating

that he was no longer welcome at Mother’s house anymore. Brother’s wife and the children

stayed in the car but Brother went back in the house to ask Mother if what Sister wrote was true.

Mother indicated that it was not.

       {¶13} At this point, another sibling, Lauren, indicated that Sister began yelling and

screaming. Lauren testified that she saw Sister hit Brother in the face and saw her leg fly up and

her shoe fly off, although she did not know whether Sister kicked Brother as well. Brother
                                                 6


testified that Sister punched him. However, Sister adamantly denied that she actually struck

Brother, although she admitted that she attempted to hit him, but missed.

       {¶14} Sister indicated that Brother berated her for 45 minutes and that Sister kept asking

him to leave but he refused. Sister acknowledged that Brother did initially leave but that he

came back and continued yelling at her. Sister testified that Brother “[got] in [her] face[,]”

yelled at her, and called her names in front of her children. She did later acknowledge that only

her son was around her at the time of the altercation. Sister stated that Brother told her she “was

good as nothing, good as dead. [She’s] worthless. [She] mean[s] nothing.” Sister testified that

she attempted to hit Brother only after he told her she was “good as dead[.]” Sister perceived

these statements as a threat. Sister acknowledged that she did previously tell Brother via a text

message that his family was “dead to [her].” However, she testified that in saying that she was

not threatening Brother or his family; instead, she was saying that she wanted nothing to do with

him.

       {¶15} Once the altercation got physical, Lauren grabbed Sister’s son and took all of the

children and went outside.      When Brother did not return, Brother’s wife called Brother.

Brother’s wife heard screaming on the other end of the line, and Brother saying that he had been

punched and to call the police. Brother’s wife thereafter called the police.

       {¶16}     Brother denied telling Sister that she was “good as dead[,]” but admitted to

calling her names. Lauren and Mother indicated that they never heard Brother tell Sister she was

“good as dead.” Mother confirmed, however, that she had heard Sister tell Brother that he, his

wife, and children were dead to Sister.

       {¶17} When the police arrived a police report was completed which was admitted into

evidence. The report indicated that Brother and Sister had been in a verbal altercation, that
                                                 7


Brother claimed Sister hit him, but Sister denied hitting him.        Instead, Sister admitted to

attempting to hit Brother. The report indicates that no primary aggressor could be determined.

Brother initially did not wish to press charges, but later contacted police stating that he had

reconsidered. Police directed Brother to the Brunswick City Prosecutor.

        {¶18} Brother initially testified that Sister was charged with domestic violence, but later

stated that he thought she may have been charged with disorderly conduct. Sister admitted that

she was charged with disorderly conduct in relation to the September 7, 2015 incident and stated

that she only had to pay a fine. She also admitted that Brother was not charged with anything in

relation to the altercation.

        {¶19} Sister also testified about past issues between herself and Brother. She indicated

that Brother would come over to Mother’s house and yell at her, and call her names in front of

Sister’s children. She claimed that Brother “just constantly gets in [her] face, and it’s to the

point where [she] honestly can’t take it anymore * * *.” Sister claimed that Brother would act

like that when he did not smoke marijuana. Brother admitted to occasionally smoking marijuana

but Brother’s wife denied that his use or non-use of marijuana affected his mood.

        {¶20} Sister also testified that she used to live in one of Brother’s rental properties and

he threatened to lock her out and eventually evicted her because Brother claimed that Sister was

harassing him. Sister claimed that she kept asking Brother to do repairs that he needed to

complete. Additionally, Sister relayed problems between Brother and Brother’s wife. Sister

averred that Brother’s wife would usually call her to go over to Brother’s wife house after

Brother and Brother’s wife had an argument. Sister alleged that three months prior to Labor

Day, Brother’s wife called Sister over after Brother urinated on Brother’s wife, broke Brother’s

wife’s phone, and kicked her out of the house. Sister sat with Brother’s wife waiting for the
                                                 8


police to come. Sister testified that she has gone over to support Brother’s wife after other

arguments.

        {¶21} Brother’s wife agreed that she and Brother have gotten into arguments, but denied

that he ever hit her. Brother’s wife acknowledged that she had had Sister come over and talk

with her after Brother’s wife and Brother had been in arguments. Brother’s wife indicated that

their arguments have only been verbal arguments and that the police have only been called three

times in their entire relationship.

        {¶22} Sister claimed that two years prior, Brother and Sister had an argument and that

she was trying to leave and Brother hit the back of her car with his car so that she could not

leave. Sister testified that she believed he got disorderly conduct for that incident. Brother

denied hitting Sister’s car and instead testified that Sister was drunk and backed into his car.

Sister maintained that on September 7, 2015, when she told Brother she was going to leave, he

told her “good luck[,]” because he was parked behind her. Brother admitted that he told Sister

“good luck” in getting out because he parked behind her. However, he said that he did not

actually park behind her and only said that because Sister had just punched him.

        {¶23} When asked whether she believed Brother was a threat to her and whether she

was in danger of domestic violence, Sister answered affirmatively.

        {¶24} Here, we cannot say that there is sufficient evidence to support the conclusion that

Sister and Sister’s children were in danger of domestic violence as that term is defined in R.C.

3113.31(A)(1)(a), (c), or (d). There is nothing to suggest that Brother attempted to cause Sister

or Sister’s children bodily injury, committed an act that resulted in Sister’s children being abused

children, or committed a sexually oriented offense against Sister or Sister’s children. See R.C.

3113.31(A)(1)(a), (c), (d). Accordingly, our focus is on R.C. 3113.31(A)(1)(b).
                                                 9


       {¶25} R.C. 3113.31(A)(1)(b) provides that domestic violence includes “[p]lacing

another person by the threat of force in fear of imminent serious physical harm or committing a

violation of section 2903.211 [(menacing by stalking)] or 2911.211 [(aggravated trespass)] of the

Revised Code[.]” As noted above, aggravated trespass involves trespass along with an element

of physical harm; that element of physical harm was not substantiated by the record. See R.C.

2911.211.

       {¶26} With respect to whether Brother placed Sister in fear of imminent serious physical

harm by threat of force, from the record it appears the only comment that Sister viewed as a

threat was Brother’s alleged statement that Sister was “good as dead.” “Under Ohio law, in

order for threats of violence to constitute domestic violence, the fear resulting from th[e] threats

[must be] reasonable.” (Internal quotations and citations omitted.) M.K. v. J.K., 9th Dist.

Medina No. 13CA0085-M, 2015-Ohio-434, ¶11. “Reasonableness is determined by referencing

the petitioner’s history with the respondent.” (Internal quotations and citations omitted.) Id.

“Yet, past incidents of domestic violence, standing alone, cannot form the basis of a petitioner’s

fear of imminent serious physical harm.” Id. “Imminent has been defined as ready to take place,

near at hand, impending, hanging threateningly over one’s head, or menacingly near.” (Internal

quotations and citations omitted.) Id. “This Court has recognized that both the totality of the

circumstances, as well as the victim’s state of mind, are relevant to the determination that the

threat of harm was imminent.” (Internal quotations and citations omitted.) Id.

       {¶27} While we do not dispute there are circumstances that could lead one to view such

a statement as a threat of force that could place someone in fear of imminent serious physical

harm, here, when the statement is read in context, it is difficult to conclude that such a statement

amounted to a threat of force that would have placed Sister in fear of imminent serious physical
                                                  10


harm, even when viewing it in a light most favorable to Sister. According to Sister, Brother told

her that she “was good as nothing, good as dead. [She’s] worthless. [She] mean[s] nothing.”

Sister testified that she viewed Brother’s comment that she was “good as dead” as a threat.

Sister admitted during her testimony, however, that she had made similar statements to Brother

in the past, texting him that his family was “dead to [her].” However, she testified that in saying

that she was not threatening Brother or his family; instead, she was saying that she wanted

nothing to do with him. The statement that Sister was “good as dead[,]” when considered along

with the other comments made by Brother would also seem to only reasonably indicate that

Brother did not think much of Sister’s value, not that Brother was threatening to harm Sister.

Further, Sister never claimed that Brother attempted to strike Sister at all during the altercation.

In fact, it was Sister that, by her own testimony, attempted to hit Brother. Moreover, ultimately,

it was Sister that had charges filed against her in relation to the altercation.

        {¶28} Sister did testify that, two years before the Labor Day altercation, following

another argument, Sister was trying to leave and Brother hit her car with his car; however, only

limited details about that event were provided.         It is unclear whether Sister’s vehicle was

damaged or whether Sister was injured. According to Sister, Brother was only charged with

disorderly conduct in relation to that incident. While Sister did present testimony indicating that

Brother and Brother’s wife had their fair share of heated verbal arguments, Sister did not present

evidence that Brother ever struck his wife. The record is clear that Sister and Brother had a

tumultuous relationship that included many verbal arguments. Nonetheless, the record is devoid

of evidence of Brother hitting Sister, attempting to hit her, or even threatening to do so. Thus,

even if Brother’s comment amounted to a veiled threat of force, we cannot conclude that such a

comment would reasonably put Sister in fear of imminent serious physical harm. See id.
                                                11


       {¶29}    Considering the entirety of the circumstances, we cannot say that sufficient

evidence was presented that she and her children were in danger of being placed in fear of

imminent serious physical harm via a threat of force from Brother.

       {¶30} Finally, we likewise cannot say that Sister demonstrated that Brother committed

menacing by stalking. As stated above, the statute prohibiting menacing by stalking provides

that “[n]o 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.” Former R.C. 2903.211. “As to whether the offender engaged in the conduct

at issue in order to cause another person to believe that the offender will cause physical harm to

the other person or cause mental distress to the other person, the State need not prove that the

offender explicitly threatened the victim. Instead, the offender’s knowledge that the conduct will

result in the victim fearing physical harm or suffering mental distress can be inferred by the

circumstances.” (Internal quotations and citations omitted.) J.B., 2015-Ohio-13, at ¶ 8. For the

reasons discussed above, we cannot conclude that sufficient evidence was presented that Brother

engaged in a pattern of activity that would cause Sister to believe Brother would cause her or her

children physical harm.

       {¶31} Additionally, we cannot conclude that sufficient evidence was presented with

respect to the mental distress prong of the statute. Mental distress is defined to mean “[a]ny

mental illness or condition that involves some temporary substantial incapacity[]” or that

normally requires professional treatment. Former R.C. 2903.211(D)(2). “Substantial incapacity

does not mean that the victim must be hospitalized, or totally unable to care for herself.

Incapacity is substantial if it has a significant impact upon the victim’s daily life.” J.B. at ¶ 9,

quoting State v. Payne, 178 Ohio App.3d 617, 2008-Ohio-5447, ¶ 9 (9th Dist.). While Sister
                                                12


testified that her Brother’s actions have brought her “to the point where [she] honestly can’t take

it anymore[,]” she did not further elaborate on how her Brother’s actions have affected her daily

life, or whether they have in fact affected her daily life. Additionally, there was no testimony

that Sister suffered from a mental illness or condition that would normally require professional

treatment. See R.C., 2013-Ohio-4265, at ¶ 9 (“R.C. 2903.211(A)(1) permits proof that the

petitioner feared physical harm or suffered mental distress.”).

       {¶32} We cannot conclude that sufficient evidence was presented that Sister and her

children were in danger of domestic violence by Brother committing menacing by stalking.

       {¶33} As a review of the record reveals that there was insufficient evidence presented to

establish by a preponderance of the evidence that Sister and her children were in danger of

domestic violence, we sustain Brother’s first assignment of error.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT’S DECISION TO GRANT [SISTER’S] PETITION FOR A
       [CPO] WHICH NAMED AS PROTECTED PERSONS [SISTER] AND HER
       THREE CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       EXPANDING THE SCOPE OF THE [CPO] TO PRECLUDE [BROTHER]
       FROM POSSESSING, USING, CARRYING OR OBTAINING ANY DEADLY
       WEAPON AND FROM USING OR POSSESSING ALCOHOL OR ILLEGAL
       DRUGS.

       {¶34} In light of our resolution of Brother’s first assignment of error, we conclude the

remaining two assignments of error are moot and we decline to address them. See App.R.

12(A)(1)(c).
                                                13


                                                III.

       {¶35} The judgment of the Medina County Court of Common Pleas, Domestic Relations

Division, is reversed, and the matter is remanded for proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       CARLA MOORE
                                                       FOR THE COURT



SCHAFER, J.
CONCURS.

CARR, P. J.
DISSENTS.
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APPEARANCES:

GERALD D. PISZCZEK, Attorney at Law, for Appellant.

A.D., pro se, Appellee.
