[Cite as P.S. v. High, 2019-Ohio-437.]


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

P. S.                                                C.A. No.       18CA0008-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
JASON HIGH                                           COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   17CIV0874

                                 DECISION AND JOURNAL ENTRY

Dated: February 11, 2019



        HENSAL, Judge.

        {¶1}     Jason High appeals a judgment of the Medina County Court of Common Pleas

that granted a civil stalking protection order to P.S. against him. For the following reasons, this

Court reverses.

                                                I.

        {¶2}     According to P.S., she travelled to her granddaughter’s sixth birthday party,

which was at a restaurant, with her daughter A.S. and her grandson. Her grandson drove because

he had just received his temporary permit and wanted to drive. When they arrived, everybody

else was already there, including Mr. High, who is married to P.S.’s daughter N.H. The adults

were all drinking alcohol. P.S. did not order any food because she had already eaten, but Mr.

High and his wife shared a dish. According to P.S., while they were eating, Mr. High got upset

with N.H. because she was taking too much of the food. P.S. tried to calm the situation by

offering to help with their children, but Mr. High slammed his hands on the table and made a
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weird face at her. When P.S. asked him what was wrong, Mr. High began accusing P.S. of

allowing relatives to abuse N.H. when N.H. was young, which had caused him and N.H. years of

marital problems. He then got up, walked to the bar, and began doing shots of whiskey with

others.

          {¶3}   P.S. testified that, when it was time to go, she stopped in the restroom, which is

adjacent to the bar. As she was leaving the restroom, she told Mr. High that they needed to talk.

He turned around and began swearing at her and blaming her again for his and N.H.’s situation.

P.S. responded by accusing N.H. of being a pathological liar and telling Mr. High that they just

needed to talk. Mr. High stormed out of the restaurant and continued calling P.S. names in the

parking lot while accusing her of ruining his marriage. He also threatened to tell lies to P.S.’s

ex-husband about A.S.

          {¶4}   As Mr. High and N.H. drove off, P.S. began exchanging text messages with N.H.

According to P.S., her grandson drove back to his house, where they sat in the driveway for a

while waiting for someone to come home to unlock it. When P.S. learned that the backdoor had

been left unlocked, she said goodbye to her grandson and drove home. Mr. High’s truck was

near the end of her driveway, however, so she could not pull into it without going into the grass.

After squeezing her car onto the end of the driveway, she parked and started walking toward her

house to notify the people in the house about the parking situation. As she passed by Mr. High’s

truck, she smacked the back of it. Suddenly, Mr. High emerged from the driver’s side of the

truck and punched her in the face. As she held her face, he began kicking her between her legs.

P.S. testified that she ran to her house, where others helped keep Mr. High outside while she

called the police.
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       {¶5}    Following the incident, P.S. petitioned for a civil stalking protection order for her

and A.S. P.S. testified that, about a week before the hearing on her petition, she happened to be

in the parking lot of the same store as Mr. High. When he saw her, he slammed on his truck’s

brakes, causing them to screech. Mr. High then peeled out backwards onto the roadway and

sped away, upsetting her and A.S., who was with her. In addition to the conduct directed at her,

P.S. testified that she has also seen Mr. High grab his son by the throat and has observed marks

on his daughter’s leg that she said were caused by Mr. High beating her with a belt. A.S.

testified that she has also seen Mr. High go after his children with a belt.

       {¶6}    Based on the testimony of P.S. and A.S., a magistrate recommended granting

P.S.’s petition, concluding that Mr. High had knowingly engaged in a pattern of conduct that

caused P.S. to believe that he would cause physical harm or mental distress to her. The trial

court adopted the magistrate’s decision. Mr. High objected, but the trial court overruled his

objections. Mr. High has appealed, assigning two errors, which we have rearranged for ease of

disposition.

                                                 II.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED BECAUSE, EVEN IF APPELLEE’S
       TESTIMONY IS TAKEN AT FACE VALUE AND ASSUMED TO BE TRUE
       THROUGHOUT, AS A MATTER OF LAW, APPELLANT CANNOT BE
       FOUND TO HAVE ENGAGED IN A PATTERN OF CONDUCT NECESSARY
       FOR THE ISSUANCE OF A CIVIL STALKING PROTECTION ORDER.

       {¶7}    In his second assignment of error, Mr. High argues that the trial court incorrectly

granted P.S. a civil stalking protection order because the conduct she accused him of did not

meet the requirements for such orders. We note that P.S. petitioned for a protection order under

Revised Code Section 2903.214. This Court has explained that, in order for a civil stalking
                                                 4


protection order to issue under Section 2903.214, “the trial court must find that the petitioner has

shown by a preponderance of the evidence the respondent committed an act against the petitioner

that would constitute menacing by stalking.” A.S. v. P.F., 9th Dist. Lorain No. 13CA010379,

2013-Ohio-4857, ¶ 6; R.C. 2903.214(C)(1).         Section 2903.211(A) addresses the offense of

menacing by stalking. It 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 * * *.” Because Mr. High challenges

the sufficiency of the evidence, “we must determine whether, viewing the evidence in the light

most favorable to [P.S.], a reasonable trier of fact could find that [she] 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; A.D. v. B.D., 9th Dist. Medina No. 15CA0095-

M, 2017-Ohio-229, ¶ 6.

       {¶8}    Regarding the terms used in Section 2903.211(A), we note that “[a] person acts

knowingly, regardless of purpose, when the person is aware that the person’s conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when the person is aware that such circumstances probably exist.” R.C.

2901.22(B). A “[p]attern of conduct” is “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).      “A court must take everything into consideration when

determining if [a person’s] conduct constitutes a pattern of conduct, even if some of the person’s

actions may not, in isolation, seem particularly threatening.” R.C. at ¶ 12, quoting Guthrie v.

Long, 10th Dist. Franklin No. 04AP-913, 2005-Ohio-1541, ¶ 12. “Physical harm” includes “any

injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C.
                                                  5


2901.01(A)(3). “Mental distress” means either “[a]ny mental illness or condition that involves

some temporary substantial incapacity” or (2) “[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).

       {¶9}    Mr. High argues that P.S. failed to establish that he engaged in a pattern of

conduct. The trial court found that his abusive verbal conduct with P.S. at the restaurant

followed by his assault of her later that day constituted a pattern of conduct. Mr. High argues

that the fact that he allegedly slammed his hands on the table, gave P.S. a weird look, and called

her a “bitch” at the restaurant was insufficient to constitute an incident under Section

2903.211(D)(1). He argues that there is no indication that his interaction with P.S. at the

restaurant caused her any fear. In particular, he notes that, after leaving the restaurant, she sent a

text message to his wife telling him to “bring it.” In another text message directed at him, P.S.

asked “[w]here are you, little bitch[?]” According to Mr. High, the allegation that he physically

assaulted P.S. once, standing alone, is insufficient to support the issuance of a civil stalking

protection order.

       {¶10} Upon review of the record, we conclude that there was insufficient evidence to

establish that Mr. High engaged in a pattern of conduct. Although the incident at the restaurant

culminated in Mr. High striking P.S. later that evening, there is no indication that Mr. High ever

threatened physical harm to P.S. or caused any harm to her outside of that one instance. While

he may have changed course and drove away quickly after seeing P.S. in a store parking lot some

weeks later, there is no indication that his truck was close to P.S. and her daughter or that he

drove in their direction after seeing them. In addition, because P.S. and A.S. do not live in the
                                               6


same household as Mr. High, the fact that he may have disciplined his children by hitting them

with a belt at some unknown time does not bear on whether they have reason to believe that he

will cause them physical harm. Accordingly, because there is no evidence that Mr. High

engaged in a pattern of conduct under Section 2903.211(D)(1), we conclude that the trial court

incorrectly granted P.S.’s petition for a civil stalking protection order. Mr. High’s second

assignment of error is sustained.

                                    ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN UPHOLDING THE CIVIL STALKING
       PROTECTION ORDER BECAUSE THE EVIDENCE, WHEN VIEWED
       OBJECTIVELY, CANNOT SUPPORT A FINDING THAT APPELLEE MET
       HER BURDEN OF PROOF AND THE DECISION IS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶11} In his first assignment of error, Mr. High argues that the trial court’s factual

findings were based on insufficient evidence and are against the weight of the evidence. In light

of our resolution of his second assignment of error, we conclude that these arguments are moot.

We, therefore, decline to consider them. App.R. 12(A)(1)(c).

                                              III.

       {¶12} Mr. High’s second assignment of error is sustained. His first assignment of error

is moot. The judgment of the Medina County Court of Common Pleas is reversed.

                                                                             Judgment reversed.




       There were reasonable grounds for this appeal.
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       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.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

STEVE C. BAILEY, Attorney at Law, for Appellant.

P.S., pro se, Appellee.
