[Cite as Mullen v. Hobbs, 2012-Ohio-6098.]



                         IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



KELLY MULLEN,                                :        APPEAL NO. C-120362
                                                      TRIAL NO. SK-1101029
          Petitioner-Appellee,               :

        vs.                                  :

MICHELE HOBBS,                               :             O P I N I O N.

          Respondent-Appellant.              :




Civil Appeal From: Hamilton County Common Pleas Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 26, 2012




Cornetet, Meyer, Rush & Kirzner Co., LPA, and Karen P. Meyer, for Petitioner-
Appellee,

Cohen, Todd, Kite & Stanford, LLC, and John L. O’Shea, for Respondent-Appellant.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}    Respondent-appellant Michele Hobbs appeals from the judgment of

the Hamilton County Court of Common Pleas entering a five-year order of protection

against her in favor of petitioner-appellee Kelly Mullen and Mullen’s daughter.

Because we determine that the record contains competent, credible evidence to

support the trial court’s determination that Hobbs, by engaging in a pattern of

conduct, had knowingly caused Mullen and her daughter to believe that they would

suffer mental distress, we affirm the issuance of the protection order.

       {¶2}    Mullen filed a petition for a civil stalking protection order against

Hobbs on behalf of herself and her child on September 8, 2011. In the petition,

Mullen alleged that Hobbs had insisted that she had legal rights to Mullen’s daughter

and that Hobbs had appeared unannounced on her child’s first day of school in mid-

August 2011.    Hobbs had then visited the school, again unannounced, in early

September. The same day that the petition was filed, the trial court entered an ex

parte temporary protection order until the matter could be set for an evidentiary

hearing.

       {¶3}    At the hearing on Mullen’s petition, Mullen filed as an exhibit the Ohio

Supreme Court’s opinion in Hobbs v. Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361,

953 N.E.2d 302.     In that opinion, the Supreme Court detailed the relationship

between Hobbs and Mullen: The couple had begun dating in 2000, and in 2003,

they had decided to ask Hobbs’s friend, Scott Liming, to donate his sperm so that

Mullen could undergo in vitro fertilization. Liming had agreed. Hobbs and Mullen

both had contributed financially to the fertilization process, and, in 2005, Mullen

had given birth to a girl. For two years, Hobbs and Mullen had jointly raised the

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child; however, in 2007, Mullen and the child had moved out of the house that they

had shared with Hobbs, giving rise to a legal dispute between Hobbs and Mullen over

the child. On July 12, 2011, the Ohio Supreme Court had affirmed the juvenile

court’s determination that Hobbs had been a non-parent to the child and that Mullen

had not relinquished any of her custodial rights to Hobbs. Id. at ¶ 23.

       {¶4}   Mullen testified at the hearing that she had had several “heated

conversations” with Hobbs regarding the outcome of their litigation. Hobbs had told

Mullen that Mullen could not control when Hobbs saw the child and that Hobbs

would make sure that the child knows Hobbs as a mother, too, and that the child will

hate Mullen. Mullen testified that she had clearly explained to Hobbs that she did

not want Hobbs to see or speak to her daughter. Nevertheless, Mullen testified that

on the child’s first day of school, August 16, 2011, she and Liming had taken the child

to school and had been standing inside the front doors when Mullen had witnessed

Hobbs “pacing” outside the school. Hobbs then had waved at the child, and, at that

point, Mullen had motioned for Hobbs to come inside. Hobbs had taken a quick

picture of the child, and then she had left. Mullen testified that she had felt Hobbs’s

actions had “wrecked the mood for a minute,” and that she could tell that the

experience had caused her daughter anxiety. Mullen testified that “[i]t was all very

weird.” Hobbs admitted in her testimony that she had shown up at the school that

morning to see the child.

       {¶5}   Mullen testified that she had been bothered by Hobbs’s actions, so she

had met with the child’s principal and teacher to inform them of the prior custody

dispute and had told them that she did not want Hobbs to have contact with her

daughter. Mullen then had sent the following email to Hobbs:

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Michele,

Your unannounced and unplanned visit at [my child’s] school was out

of line this morning.

Unscheduled visits AND contact with [my child] is (sic) not approved

by me.

Please refrain from further contact or I will be forced to seek further

legal recourse.

To be clear, unannounced visits to [my child’s] homes, schools,

activities and the like are not approved by me and are in violation of

my wishes for my daughter.

{¶6}     Hobbs had replied to Mullen’s email as follows:

You’ve got to be kidding. For once you acted in [the child’s] best

interest, now this? There was nothing out of line getting to wish my

daughter good luck on her first day of school. [The child’s school] is a

public school in my neighborhood. I don’t need approval to visit [the

school]. And last I looked, your house * * * isn’t even in the district, so

unless you are paying the $6566.18 for out of district tuition, I have

more of a right to be there than you. Liming’s house on Beechwood is

in the district, but [the child] does not live there and he still has no

legal custodial rights granted by the courts, so his rights and mine are

the same here.      Unless of course you have lied and put Liming’s

address down as [the child’s] residence, then that changes everything.

And to be clear, there is no such thing as a ‘violation’ of your wishes.

You will not allow [the child] to see me. If there is anyone violating

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       someone here it’s you. I really thought you had made an effort and

       turned a corner this morning. Stupid me. Poor [child]…still.

       {¶7}   After this exchange, Mullen testified that the child’s teacher had told

Mullen that Hobbs had visited the school playground on September 6, and that

Hobbs had talked to other children through the fence. A teacher’s assistant at the

child’s school confirmed Mullen’s testimony and stated that, at the beginning of the

school year in September, she had seen Hobbs standing with a dog just outside the

fenced-in school playground, and Hobbs had been talking with two children. As a

result, the assistant testified that she had brought all the children inside from recess,

including Mullen’s child.

       {¶8}   Mullen testified that another incident had occurred on September 7

where her daughter had called her from school, and she had been upset. The child

had stated that a classmate had brought beef jerky to school from the child’s “other

mom,” which had caused the child to be embarrassed. Another teacher at the child’s

school testified that the child had seemed upset in early September and had asked to

call her mother. Hobbs admitted in her testimony that she had given beef jerky to

another child and had told him to give it to Mullen’s daughter. Yet another school

employee testified that she had received an email from Hobbs expressing concern

about the child.

       {¶9}   Mullen also testified that Hobbs had told her that Hobbs had been

arrested for aggravated menacing involving a firearm and had applied for a

concealed carry permit. Because of Hobbs’s demonstrated “hatred,” Mullen testified

that she was afraid that Hobbs would take the child, or that Hobbs would harm

Mullen or the child.

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       {¶10} Based upon the evidence presented, the magistrate found that Mullen

proved, by a preponderance of the evidence, that Mullen and her daughter were

entitled to a five-year civil stalking protection order against Hobbs. The trial court

approved and adopted the magistrate’s findings. Hobbs filed objections to the order,

which were overruled by the trial court. This appeal ensued.

                           Civil Stalking Protection Order

       {¶11} R.C. 2903.214 provides a framework for obtaining a civil stalking

protection order (“CSPO”).     To obtain a CSPO, a petitioner must show, by a

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

by-stalking statute, R.C. 2903.211. Lindsay v. Jackson, 1st Dist. No. C-990786, 2000

Ohio App. LEXIS 4043, *13 (Sept. 8, 2000). R.C. 2903.211(A)(1) provides, “[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.”

       {¶12} The decision to grant or deny a CSPO is left to the sound discretion of

the trial court, and we will not reverse the trial court’s decision absent an abuse of

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

abuse of discretion occurs when the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). Moreover, this court will not reverse a trial court’s decision on manifest-

weight-of-the-evidence grounds unless, after reviewing all evidence and reasonable

inferences and considering the credibility of the witnesses, we determine that the

trier of fact lost its way and created such a manifest miscarriage of justice that we

must reverse its decision. Ensley v. Glover, 6th Dist. No. L-11-1026, 2012-Ohio-

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                   OHIO FIRST DISTRICT COURT OF APPEALS



4487, ¶ 9; see also Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 14-23, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997).

                                 Mental Distress

       {¶13} In Hobbs’s first assignment of error, she argues that the trial court’s

decision issuing a CSPO against her was not supported by competent, credible

evidence because insufficient evidence was offered to support the conclusion that

Hobbs had knowingly caused mental distress to Mullen and her daughter. This court

recently held that mental distress need not actually have been caused in order for a

CSPO to issue, and that a petitioner need only show that an offender, by engaging in

a pattern of conduct, knowingly caused the petitioner to believe that she or he would

suffer mental distress or physical harm. See Griga v. DiBenedetto, 1st Dist. No. C-

120300, 2012-Ohio-____, ¶ __. Thus, in addressing Hobbs’s assignment of error,

we must determine whether Mullen showed, by a preponderance of the evidence,

that Hobbs, by engaging in a pattern of conduct, had knowingly caused Mullen and

Mullen’s daughter to believe that they would suffer mental distress.

       {¶14} R.C. 2903.211(D)(2) defines “mental distress” as:

       (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.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} A petitioner is not required to present expert testimony regarding

mental distress, and the trier of fact may invoke its own experience in determining

this element. See, e.g., State v. Horsley, 10th Dist. No. 05AP-350, 2006-Ohio-1208,

¶ 46. “[M]ere mental stress or annoyance” is insufficient to establish mental distress.

Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 28. A petitioner’s

statement that respondent caused mental distress, without more, is also insufficient.

Lindsay, 1st Dist. No. C-990786, 2000 Ohio App. LEXIS 4043, at *3.

       {¶16} As to prong (a) of R.C. 2903.211(D)(2)—temporary substantial

incapacity—“[i]ncapacity is substantial if it has a significant impact upon the

[petitioner’s] daily life.” State v. Willett, 9th Dist. No. 25521, 2012-Ohio-1027, ¶ 10,

quoting State v. Payne, 178 Ohio App.3d 617, 2008-Ohio-5447, 899 N.E.2d 1011, ¶ 9.

Substantial incapacity does not mean that the petitioner must have been

incapacitated to the point of hospitalization or to the point of becoming incapable of

caring for himself or herself. Payne at ¶ 9. In Payne, the court determined that

mental distress had been proven beyond a reasonable doubt by the state in a

menacing-by-stalking prosecution where the victim had been so afraid that she had

been unable to leave her house for approximately six hours, and that qualified as

substantial incapacity. Id.

       {¶17} Evidence of a petitioner’s fear is also relevant to a determination of

mental distress under prong (b) of R.C. 2903.211(D)(2)—any mental illness or

condition that would normally require treatment. See Smith v. Wunsch, 162 Ohio

App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 19. In Wunsch, the petitioner sought

a CSPO against the respondent, a former co-worker, after the respondent: had shown

up at the petitioner’s new place of employment, hiding in the bushes on one

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                     OHIO FIRST DISTRICT COURT OF APPEALS



occasion; had driven past the petitioner while the petitioner had been going to and

from work in the same day, even though the petitioner had lived a considerable

distance from the respondent; had sent the petitioner emails; and had called the

petitioner. Id. at ¶ 4.

        {¶18} The petitioner in Wunsch testified that she had feared for her safety

because of the respondent’s actions. The petitioner’s friend testified that she had

been on the phone with the petitioner during one of the incidents with the

respondent, and that the petitioner had been “hysterical.” The police officer who had

made a police report following one of these incidents testified that the petitioner had

been “pretty shook up” and “upset.” The Fourth Appellate District affirmed the trial

court’s determination that this evidence established mental distress under prong (b).

Id. at ¶ 19.

        {¶19} Hobbs argues that, at most, Mullen’s testimony showed that Hobbs’s

actions had bothered Mullen, had embarrassed her, and had made her

uncomfortable. Contrary to Hobbs’s assertion, we determine that the testimony at

the hearing provided competent, credible evidence from which the trial court could

have determined that Hobbs had caused Mullen and her daughter to believe that

they would suffer mental distress.

        {¶20} Mullen testified that she had had several “heated conversations” with

Hobbs regarding custody of the child, and that even after the Supreme Court had

determined that Mullen was the sole legal custodian and residential parent of the

child in July 2011, Hobbs had maintained that she was the child’s mother and that

Mullen could not control when Hobbs saw the child. Mullen also testified that

Hobbs had stated that Hobbs would make sure that the child hates Mullen.

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                   OHIO FIRST DISTRICT COURT OF APPEALS



Moreover, Mullen testified that Hobbs had demonstrated hatred toward her, and

that Mullen had been afraid that Hobbs would take her daughter, or that Hobbs

would harm Mullen or her daughter.

       {¶21} After the incident where Hobbs had appeared uninvited on the first

day of school, Mullen testified that she had met with her daughter’s principal and

teacher, informing them of the background between her and Hobbs and letting them

know that she did not want Hobbs to have contact with her daughter. Mullen also

had made her feelings clear to Hobbs in an email. Mullen’s daughter also had

become anxious in the presence of Hobbs. Mullen’s and her daughter’s reactions to

Hobbs’s conduct evidences that they had been upset by Hobbs’s behavior.

       {¶22} Even after Hobbs had been warned by Mullen, Hobbs had contacted

Mullen’s daughter twice more within the next couple of weeks. A teacher’s assistant

testified that she had seen Hobbs standing with a dog just outside the playground,

talking with two children, and that this had caused the assistant to bring all the

children, including Mullen’s child, inside the school from recess prematurely.

Moreover, according to Mullen, the “beef jerky” incident where Hobbs had sent beef

jerky to school with another young child to give to Mullen’s daughter had caused

Mullen’s daughter to be upset.

       {¶23} We determine that the escalation of Hobbs’s conduct toward Mullen

and her daughter caused them to believe that they would suffer mental distress,

especially in light of the years of litigation between Mullen and Hobbs. Therefore,

the totality of the evidence presented to the trial court provides competent, credible

evidence for the conclusion that Hobbs had caused Mullen and her daughter to

believe that they would suffer mental distress.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



                            Hobbs Acted Knowingly

       {¶24} We also determine that the evidence presented at the hearing provided

competent, credible evidence from which the trial court could have determined that

Hobbs had acted knowingly. R.C. 2901.22(B) provides that

       [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.

       {¶25} Mullen testified that she had made it clear to Hobbs that she did not

want Hobbs to see or speak to her daughter; nevertheless, Hobbs had waited outside

of the child’s school, unannounced. After that incident, Mullen had sent Hobbs an

email stating that she did not want Hobbs to have any contact with her child. Hobbs

had indicated in her reply email to Mullen that Hobbs had no intention of abiding by

Mullen’s wishes stating, “I don’t need approval to visit [the school],” and referring to

the child as Hobbs’s daughter. Hobbs then had defied Mullen’s wishes by contacting

the child at school, once directly at the playground, and another time indirectly

through another child at the school.

       {¶26} Competent, credible evidence exists in the record from which the trial

court could have determined that Hobbs had acted knowingly for purposes of R.C.

2903.211. Therefore, we overrule Hobbs’s first assignment of error.

                                       Physical Harm

       {¶27} In her second assignment of error, Hobbs argues that the trial court’s

judgment issuing a CSPO against her was not supported by competent, credible

evidence that Hobbs had knowingly caused Mullen and her daughter to believe that

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                   OHIO FIRST DISTRICT COURT OF APPEALS



they would suffer physical harm. A petitioner seeking a CSPO under the menacing-

by-stalking statute, however, need only satisfy the mental-distress prong or the

physical-harm prong, not both. R.C. 2903.211(A)(1); see also Lindsay, 1st Dist. No.

C-990786, 2000 Ohio App. LEXIS 4043, at *14 (stating that the physical harm and

mental distress prongs in the menacing-by-stalking statute are independent).

       {¶28} Because we determine that the trial court’s decision was supported by

competent, credible evidence as to Mullen’s and her daughter’s belief of mental

distress, the trial court’s decision can be upheld on this basis alone. We need not

reach whether Mullen proved, by a preponderance of the evidence, that she had

believed that Hobbs would cause physical harm to her or her daughter. As a result,

we decline to address Hobbs’s second assignment of error.

       {¶29} In conclusion, we determine that competent, credible evidence exists

to support the trial court’s finding that Hobbs, by engaging in a pattern of conduct,

had knowingly caused Mullen and her daughter to believe that they would suffer

mental distress.   Further, we determine that the trial court did not abuse its

discretion in ordering a five-year CSPO against Hobbs in favor of Mullen and her

daughter. Therefore, the judgment of the trial court is affirmed.

                                                                    Judgment affirmed.

SUNDERMANN, P.J., concurs.
CUNNINGHAM, J., concurs in judgment only.

CUNNINGHAM, J., concurring in judgment only.

       {¶30} I agree with the majority in holding that the decision of the trial court

must be affirmed; however, I believe that the standard set forth in Griga v.




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DiBenedetto, 1st Dist. No. C-120300, 2012-Ohio-____, and applied by the majority

in this case, is incorrect.

       {¶31} This court in Griga followed the majority of other appellate districts in

holding that mental distress need not actually have been suffered under R.C.

2903.211. See Fortney v. Willhoite, 11th Dist. No. 2011-L-120, 2012-Ohio-3024, ¶ 41;

State v. Hart, 12th Dist. No. CA2008-06-079, 2009-Ohio-997, ¶ 31; Bloom v.

Macbeth, 5th Dist. No. 2007-COA-050, 2008-Ohio-4564, ¶ 11; Horsley, 10th Dist.

No. 05AP-350, 2006-Ohio-1208, at ¶ 47; City of Dayton v. Davis, 136 Ohio App.3d

26, 32, 735 N.E.2d 939 (2d Dist.1999); Ensley v. Glover, 6th Dist. No. L-11-1026,

2012-Ohio-4487, ¶ 13; Retterer v. Little, 3d Dist. No. 9-11-23, 2012-Ohio-131, ¶ 39.

       {¶32} Of the other appellate districts that have held that actual mental

distress is not required under the menacing-by-stalking statute, at least one district

has explained that the plain language of the statute dictates such an outcome,

without any further analysis. See Retterer at ¶ 39; see also Warnecke v. Whitaker,

3d Dist No. 12-11-03, 2011-Ohio-5442, ¶ 14.

       {¶33} The Griga court did not reach its conclusion under a plain-language

analysis, but instead, the court examined the legislative intent of the statute.

According to the court, the intent of the statute is to allow a court to intervene before

harm occurs—both physical and mental harm; therefore, a petitioner or victim need

only show that he or she believes that mental distress will occur. Griga, 1st Dist. No.

C-120300, 2012-Ohio-____, at ¶ __.

       {¶34} I agree that CSPOs serve as a critical tool for preventing harm, I

believe, however, that the court need not resort to legislative intent in interpreting

the mental-distress prong of the menacing-by-stalking statute because the statute is

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                     OHIO FIRST DISTRICT COURT OF APPEALS



not ambiguous, especially when read in context with the definition of mental distress

under the statute.

       {¶35} Using a plain-language analysis, the Seventh Appellate District held

that the menacing-by-stalking statute requires proof of actual mental distress.

Caban, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, at ¶ 23.               In reaching this

conclusion, the Caban court determined that, “by repeating ‘to the other person’

after both physical harm and mental distress, rather than merely placing it at the end

of the sentence, the legislature expressed that ‘to believe’ does not modify ‘mental

distress’.” Id. at ¶ 24.

       {¶36} I agree with the determination of the court in Caban for the reason set

forth by that court, but also because of the legislature’s definition of mental distress

under the statute.     R.C. 2903.211(D)(2) defines mental distress for purposes of

menacing by stalking, in part, as “[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)(b).

       {¶37} By using the phrase “normally require * * * treatment” in defining

mental distress, the legislature created an objective inquiry. This objective test for

mental distress is incompatible with an interpretation of the menacing-by-stalking

statute requiring only that the victim or petitioner believe that mental distress will be

caused—a subjective inquiry. But see Lane v. Brewster, 12th Dist. No. CA2011-08-

060, 2012-Ohio-1290, ¶ 21 (determining that the mental-distress inquiry must focus

on the petitioner, and not that of a reasonable person).

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       {¶38} Moreover, a subjective belief inquiry for mental distress, requiring

only that a petitioner or victim believe that he or she will suffer mental distress,

would render as superfluous the phrase “whether or not any person requested or

received * * * treatment, or other mental health services[]” in the legislature’s

definition of mental distress under R.C. 2903.211(D)(2)(b). See State ex rel. Carna

v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484,

967 N.E.2d 193, ¶ 18-19 (when interpreting statutes, courts must give significance to

every word in the statute and should not treat any part of a statute as superfluous

unless “manifestly required”).

       {¶39} I would conclude that the menacing-by-stalking statute requires proof

of mental distress or belief of physical harm. Applying an actual-mental-distress

standard, I would hold that Mullen proved by a preponderance of the evidence that

Hobbs, by engaging in a pattern of conduct, had knowingly caused Mullen and her

daughter mental distress. Therefore, I join in the majority’s judgment affirming the

trial court’s issuance of a CSPO.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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