[Cite as Elkins v. Manley, 2016-Ohio-8307.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 104393



                                   SHELLY L. ELKINS
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                DOLORES J. MANLEY
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-16-861618


        BEFORE: E.T. Gallagher, J., McCormack, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 22, 2016
FOR APPELLANT

Dolores J. Manley, pro se
3634 E. 47th Street
Cleveland, Ohio 44127


FOR APPELLEE

Shelly L. Elkins, pro se
7208 Deveny Avenue
Cleveland, Ohio 44105
EILEEN T. GALLAGHER, J.:

       {¶1} Appellant, Dolores Manley (“Manley”), pro se, appeals from the trial court’s

judgment granting petitioner, Shelly L. Elkins’s (“Elkins”), petition for a civil stalking

protection order (“CSPO”). Manley raises the following assignments of error for review:

       1. The court acted unprofessional with the defendant.

       2. The court made false statements about what the defendant said.

       3. The court didn’t want to hear the defendant’s side at all.

       4. The court wouldn’t let the defendant see documents, letters, calls,
       professional people, etc.

       {¶2} After careful review of the record and relevant case law, we affirm the trial

court’s order.

                                  I. Procedural History

       {¶3} On April 5, 2016, Elkins filed a petition for a CSPO against Manley pursuant

to R.C. 2903.214. The petition alleged that Manley was harassing her and her daughter,

H.K., by telephone and mail. Elkins further alleged that Manley followed her in public

places, made false accusations, and has closed Elkins’s personal bank accounts without

permission.

       {¶4} On April 11, 2016, the trial court granted a temporary CSPO from April 8,

2016, until May 31, 2016, “or until further order of this court.” A full hearing on the

petition was held on April 21, 2016, where the following testimony was adduced.
       {¶5} At the hearing, Elkins testified that she is the legal guardian of H.K. Manley

is the biological mother of H.K., but has had no contact with her since her birth. Elkins

stated that over the course of 20 years, Manley has continuously harassed her and her

family. Specifically, Elkins testified that Manley has repeatedly made disruptive phone

calls and has made false accusations against her with the Cuyahoga County Children and

Family Services “at least 180 times.” In addition, Elkins stated that Manley has canceled

her bank accounts without permission and has made threatening statements. Elkins

testified that Manley’s pattern of conduct has caused her mental distress and depression.

       {¶6} At the conclusion of the hearing, the trial court found that Elkins carried her

burden of proof and entered a protection order “in favor of [Elkins] and against [Manley]

for a term of five (5) years.”

       {¶7} Manley now appeals from the trial court’s order granting Elkins a CSPO.

                                 II. Law and Analysis

                                    A. Judicial Bias

       {¶8} In her first, second, and fourth assignments of error, Manley collectively

argues the trial court’s judgment was the product of judicial bias.   Specifically, Manley

contends that the trial court (1) treated her unprofessionally throughout the proceedings,

(2) accused her of making derogatory statements that she did not make, and (3) did not

allow her to view letters submitted to the court by Elkins during the CSPO hearing.

       Judicial bias is defined as “a hostile feeling or spirit of ill will or undue
       friendship or favoritism toward one of the litigants or his attorney, with the
       formation of a fixed anticipatory judgment on the part of the judge, as
       contradistinguished from an open state of mind which will be governed by
       the law and facts.”

 State v. Miller, 6th Dist. Lucas No. L-08-1314, 2009-Ohio-3908, ¶ 20, quoting State v.

LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. “A trial judge is

‘presumed not to be biased or prejudiced, and the party alleging bias or prejudice must set

forth evidence to overcome the presumption of integrity.’” Weiner v. Kwiat, 2d Dist.

Montgomery No. 19289, 2003-Ohio-3409, ¶ 90, quoting Eller v. Wendy’s Internatl., Inc.,

142 Ohio App.3d 321, 340, 755 N.E.2d 906 (10th Dist.2000).” Id. at ¶ 21. “[T]he

appearance of bias or prejudice must be compelling to overcome these presumptions.” In

re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶

5.

       {¶9} In this case, we find no evidence to overcome the trial court’s presumption of

integrity. Our review of the transcript in this case indicates that the trial judge provided

Elkins and Manley with the opportunity to explain their respective sides of the alleged

incidents, properly considered all arguments before granting the CSPO, and treated the

parties equally and professionally. We do not perceive a hostile feeling or spirit of ill

will towards Manley. In addition, there is nothing in the record to suggest the trial

judge treated Elkins favorably. While Manley maintains that the trial court incorrectly

believed that she called Elkins a “b****” immediately before the hearing started, there is

nothing in the record to suggest the court misheard Manley or that the statement

influenced the court’s judgment. Moreover, given the circumstances of the allegations

raised against Manley, we find the trial court did not act arbitrarily in exercising caution
by refusing to provide Manley with copies of the letters submitted by members of

Elkins’s family in support of her petition. As the court stated in its journal entry:

       During the hearing, the court accepted into evidence and briefly reviewed
       certain documents submitted by petitioner. Said documents consisted
       principally of letters of support. Respondent demanded copies of the
       documents, but the court rebuffed that request for two reasons: first,
       respondent’s behavior at the hearing strongly suggested she might retaliate
       against the individuals who authored letters.              Second, the court
       unequivocally states that it would have reached precisely the same decision
       on the protection order in the absence of the letters of support.

       {¶10} Accordingly, we find no merit to Manley’s claim of judicial bias.

Manley’s first, second, and fourth assignments of error are overruled.

                               B. Weight of the Evidence

       {¶11} In her third assignment of error, Manley argues the trial court failed to

consider her side of the story. We interpret Manley’s third assignment of error as a

challenge to the weight of the evidence supporting the CSPO.

       {¶12} The decision to grant a CSPO is well within the sound discretion of the trial

court and will not be reversed absent an abuse of discretion. Rufener v. Hutson, 8th Dist.

Cuyahoga No. 97635, 2012-Ohio-5061, ¶ 12. An abuse of discretion occurs when the

trial court’s decision is unreasonable, arbitrary, or unconscionable.          Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶13} For a trial court to grant a CSPO, it must hold a full hearing and proceed as

in a normal civil action.      R.C. 2903.214(D)(3).      The petitioner must show, by a

preponderance of the evidence, that the respondent’s conduct violates the menacing by

stalking statute. Strausser v. White, 8th Dist. Cuyahoga No. 92091, 2009-Ohio-3597,
citing Felton v. Felton, 79 Ohio St.3d 34, 42-43, 679 N.E.2d 672 (1997).              R.C.

2903.211(A)(1) defines the offense of menacing by stalking: “[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.”

On appeal, we consider whether there is some competent, credible evidence to support

each element of menacing by stalking. Id. at ¶ 33.

       {¶14} “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).      “‘Purpose or intent to cause physical harm or

mental distress is not required.      It is enough that the person acted knowingly.’”

McWilliam v. Dickey, 8th Dist. Cuyahoga No. 99277, 2013-Ohio-4036, ¶ 25, quoting

Jenkins v. Jenkins, 10th Dist. Franklin No. 06AP-652, 2007-Ohio-422, ¶ 16.

       {¶15} To be granted a CSPO, therefore, Elkins was required to show that Manley

knowingly engaged in a pattern of conduct that caused her mental distress. Strausser,

8th Dist. Cuyahoga No. 92091, 2009-Ohio-3597, at ¶ 34. R.C. 2903.211(D)(2) defines

“mental distress” as either of the following:

       (a) [a]ny mental illness or condition that involves some temporary
       substantial incapacity; (b) [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.
“Mental distress need not be incapacitating or debilitating.”           Jenkins at ¶ 19.

Furthermore, “[i]t is the duty of the trier of fact to determine whether a victim suffered

mental distress as a result of the offender’s actions.”   Taylor v. Taylor, 2d Dist. Miami

No. 2012-CA-14, 2012-Ohio-6190, ¶ 16. “Expert testimony is not required to establish

mental distress, and the trier of fact ‘may rely on its knowledge and experience in

determining whether mental distress has been caused.’” Strausser at ¶ 32.     Further, the

testimony of the victims themselves as to their fear is sufficient to establish mental

distress.    Id., citing State v. Horsley, 10th Dist. Franklin No. 05AP-350,

2006-Ohio-1208, ¶ 48.

       {¶16} A pattern of conduct is defined as “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. * * *.” R.C. 2903.211(D)(1). “[T]he temporal period within

which the two or more actions or incidents must occur * * * [is a] matter to be determined

by the trier of fact on a case-by-case basis.”       Ellet v. Falk, 6th Dist. Lucas No.

L-09-1313, 2010-Ohio-6219, ¶ 22.

       {¶17} Having reviewed the testimony presented at the CSPO hearing, we find

Elkins presented competent, credible evidence that Manley knowingly engaged in a

pattern of conduct that caused Elkins mental distress. The trial court was presented with

testimony establishing that Manley has repeatedly interfered with Elkins and her family’s

lives by making intrusive phone calls at their home, reporting Elkins to CCDCFS over

180 times, following Elkins in public places, making threatening statements, and closing
Elkins’s bank account without permission.         Further, Elkins testified that Manley’s

pattern of conduct has caused her mental distress, which has led to periods of depression.

 Under these circumstances, the trial court did not abuse its discretion in granting

Elkins’s petition for a CSPO.

       {¶18} Manley’s third assignment of error is overruled.

                                     III. Conclusion

       {¶19} The trial court’s judgment granting Elkins a CSPO was supported by

competent and credible evidence.      Moreover, there is nothing in the record to suggest

that the trial court’s judgment was the product of judicial bias.

       {¶20} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


EILEEN T. GALLAGHER, JUDGE

TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR
