[Cite as Wilson v. Rowe, 2016-Ohio-523.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 BALEIGH WILSON                                :   JUDGES:
                                               :
        Petitioner-Appellee                    :   Hon. John W. Wise, P.J.
                                               :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
 -vs-                                          :
                                               :   Case No. 15-CA-14
                                               :
 MICHAEL D. ROWE                               :
                                               :
                                               :
        Respondent-Appellant                   :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Knox County Court of
                                                   Common Pleas, Case No. 15ST04-0130



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            February 11, 2016




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 BALEIGH WILSON, PRO SE                            ANDREW T. SANDERSON
 10 Kenyon St.                                     BURKETT & SANDERSON, INC.
 Mount Vernon, OH 43050                            73 North Sixth St.
                                                   Newark, OH 43055
Knox County, Case No. 15-CA-14                                                         2



Delaney, J.

       {¶1} Respondent-appellant Michael D. Rowe appeals from the Full Hearing Civil

Stalking Protection Order issued by the Knox County Court of Common Pleas on July 30,

2015. Petitioner-appellee Baleigh Wilson did not file a brief.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from the hearings of June 22 and July 30,

2015, upon appellee’s petition for a civil protection order.

       {¶3} In early 2015, a Facebook post appeared in reference to allegedly abused

dogs in Knox County. The post contained information about dogs left out in the cold and

advised readers to contact police, mayors, and dog wardens to rescue the dogs. The

post also listed residence addresses where the dogs could be found. One address listed

was that of Shawn Brown, the former stepfather of Doug Wilson (“Doug”). Doug is

married to Baleigh Wilson (“Baleigh”) and they have three children under the age of five.

Doug and Baleigh live two doors down from Brown.

       {¶4} The Facebook posting created a buzz in the community and Baleigh

testified the neighborhood was inundated with people driving around Brown’s house to

check on the dog. Appellant was admittedly one of those people. After reading the

Facebook post, appellant called the dog warden to check Brown’s dog’s status and was

told the dog was now kept inside the house. Appellant drove past Brown’s house to check

for himself. On February 3, 2015, around 12:00 or 1:00 p.m., appellant drove past

Brown’s address. He didn’t see the dog on the front porch and so drove through an alley

behind Brown’s house to check the status of a second dog. He didn’t see any dogs
Knox County, Case No. 15-CA-14                                                          3


outside. Appellant acknowledged he looked through a gap in Brown’s privacy fence to

see into the backyard.

       {¶5} Baleigh and Doug were admittedly frustrated by people driving around the

block and making threats. On February 3rd, they observed appellant circle the block

twice. Baleigh and Doug were in their vehicle and saw appellant leave the alley and turn

onto Miami. Doug and Baleigh were also on Miami. They pulled over to the right side of

the road and flagged appellant down. Doug went to appellant’s passenger-side window

and told him he didn’t have to worry about Brown’s dog because it was taken care of and

to stop circling the neighborhood. Doug then returned to his own car.

       {¶6} Appellant testified that during this exchange, Doug threatened to “throw a

brick through his window” and when Doug returned to his car appellant thought he was

retrieving a brick or other weapon. Doug denied making the threat.

       {¶7} As Doug returned to the car, Baleigh got out of the passenger side and told

appellant to keep moving. Appellant pulled a gun that he had concealed at his waist and

pointed it at Baleigh. Appellant said he felt threatened and that the Wilsons were “in his

space.”

       {¶8} Baleigh started screaming when she saw the gun and Doug yelled for

appellant to put the gun down. Shawn Brown came out of his house and got in between

appellant and Baleigh; Brown purportedly told appellant he was an Iraqi war vet and

“could take him down if [he] wanted to do so.” Brown yelled for appellant to put the gun

down. Doug called 911 and police arrived within 5 or 10 minutes. Police instructed

appellant to place the gun on the hood of his vehicle and he complied.
Knox County, Case No. 15-CA-14                                                              4


       {¶9} Appellant testified he did not pull his weapon until Brown also appeared on

the scene and he felt threatened by three against one. He acknowledged he could have

gone around the Wilsons’ car and avoided them altogether but he stopped because he

wanted to “see what was going to happen.” (T. 38). The trial court questioned why, once

the confrontation started, appellant didn’t get in his car and leave instead of pulling a gun,

but appellant said he just “reacted;” also, Doug’s car door was open and the road was icy

and appellant didn’t want to hit him.

       {¶10} Appellant was criminally charged with two counts of aggravated menacing

for the gun incident and reportedly entered a no-contest plea to a single count of minor

misdemeanor disorderly conduct.

       {¶11} On March 6, 2015, appellant reportedly drove past the Wilson house

repeatedly, honking his horn. The Wilsons made a police report. Appellant denied this

incident and said the browsing history on his home computer supports his contention that

he and his wife were watching a movie during the time period Doug alleged they drove

by.

       {¶12} On March 31, 2015, Doug was driving on Miami when appellant and his wife

walked by. Appellant waved at Doug. Appellant admitted this occurred; he testified he

had a pretrial in his criminal case that day but he and his wife frequently walk in that

neighborhood. Appellant acknowledged he did wave at Doug but said it was a friendly

gesture because Doug allowed them to cross the street in front of his car.

       {¶13} On April 4, 2015, Doug saw appellant while he was driving and appellant

yelled at him that Doug should get an attorney. Appellant denied this incident.
Knox County, Case No. 15-CA-14                                                             5


       {¶14} On April 17, 2015, Baleigh was driving on Beech Street when appellant

pulled out behind her on a motorcycle. Appellant’s wife was his passenger on the

motorcycle and they followed Baleigh down the road until they stopped at a traffic light.

Appellant started repeatedly yelling at Baleigh, “I’m a liar and I’m a Christian.” Baleigh

testified appellant’s wife told him to stop. Baleigh pulled into a Kroger’s parking lot and

called the police to document the incident. Appellant was still yelling while Baleigh was

on the phone with police.

       {¶15} Appellant acknowledged this incident but claimed he was in the midst of a

disagreement with his wife when he was yelling that he was “a Christian and a liar.” He

saw Baleigh pull into the Kroger parking lot and he and his wife proceeded on their way

to dinner.

       {¶16} Appellant denied that he saw either of the Wilsons at any other time. He

testified, though, that he was in the neighborhood frequently over a period of weeks

gathering evidence because his attorney told him to get photos and videos of the scene

of the February 3 incident.

       {¶17} Baleigh filed a pro se motion for a civil stalking protection order on behalf of

herself, Doug, and their three children. An ex parte order was granted on April 23, 2015

and expired on May 25, 2015. The parties appeared before the trial court for a full hearing

on June 22, 2015 and appellant’s attorney presented the trial court with a signed

agreement that purported to resolve the matter without a hearing. Appellant’s attorney

drafted the settlement agreement. The written document, signed by all of the parties,

stated in part appellant would not walk, drive, or otherwise pass in front of the Wilsons’

house. The trial court pointed out that the order was unenforceable and appellant’s
Knox County, Case No. 15-CA-14                                                              6


attorney responded the parties could file again for protection orders if the agreement was

breached.

       {¶18} Baleigh stated she agreed to the settlement agreement because she knew

appellant intended to file his own petition for a civil stalking protection order against the

Wilsons and she feared the trial court would not take the matter seriously, thus this was

possibly the best resolution she could hope for.

       {¶19} The trial court stated it was concerned about the February 3 incident

because appellant pulled a gun. The trial court said it would not accept the settlement

agreement because it purported to resolve the matter with an unenforceable order. When

the trial court indicated its intent to proceed with the hearing upon the civil stalking

protection order, appellant requested a continuance.           The trial court permitted a

continuance of two weeks and extended the ex parte civil protection order in the

meantime.

       {¶20} The full hearing took place on July 30, 2015. At the conclusion of the

hearing, the trial court granted the civil stalking protection order on behalf of the Wilsons.

       {¶21} Appellant now appeals from the civil stalking protection order issued July

30, 2015.

       {¶22} Appellant raises two assignments of error:

                               ASSIGNMENTS OF ERROR

       {¶23} “I.    THE GRANTING OF THE MENACING BY STALKING CIVIL

PROTECTION ORDER WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO

SUSTAIN THE SAME.”
Knox County, Case No. 15-CA-14                                                             7


       {¶24} “II. THE TRIAL COURT COMMITTED HARMFUL ERROR IN REJECTING

THE SETTLEMENT OF THE PARTIES REGARDING THE DISMISSAL OF THE

REQUEST FOR A CIVIL STALKING PROTECTION ORDER.”

                                        ANALYSIS

                                             I.

       {¶25} In his first assignment of error, appellant argues the civil stalking protection

order is not supported by sufficient evidence. We disagree.

       {¶26} Appellant argues the record falls short of demonstrating a pattern of conduct

that created any fear of physical harm or mental distress to the Wilsons. We find sufficient

evidence in the record to support the Wilsons’ fear of physical harm.

       {¶27} R.C. 2903.214 governs the filing of a petition for a civil stalking protection

order. R.C. 2903.214(C) provides: “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.” To be

entitled to a civil stalking protection order, the petitioner must show by a preponderance

of the evidence that the respondent engaged in menacing by stalking, a violation of R.C.

2903.211, against the person seeking the order. See Tumblin v. Jackson, 5th Dist.

Coshocton No. 06CA002, 2006–Ohio–3270, ¶ 17.             R.C. 2903.211(A), menacing by

stalking, states that “[n]o person by engaging in a pattern of conduct shall knowingly

cause another to believe that the offender will cause physical harm to the other person or

cause mental distress to the other person.” R.C. 2903.211(D)(1) defines “pattern of

conduct” 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.
Knox County, Case No. 15-CA-14                                                             8


       {¶28} “R.C. 2903.211(D)(1) does not require that a pattern of conduct be proved

by events from at least two different days. Arguably, a pattern of conduct could arise out

of two or more events occurring on the same date, provided that there are sufficient

intervals between them.” State v. Scruggs, 136 Ohio App.3d 631, 634, 737 N.E.2d 574

(2nd Dist.2000). One incident is insufficient to establish a “pattern of conduct.” Id. The

statute does not define the term “closely related in time,” but case law suggests the trier

of fact should consider the evidence in the context of all circumstances of the case.

Middletown v. Jones, 167 Ohio App.3d 679, 856 N.E.2d 1003, 2006–Ohio–3465, ¶ 10

(12th Dist.). Trial courts may take every action into consideration, even if some actions in

isolation would not seem particularly threatening. Guthrie v. Long, 10th Dist. No. 04AP–

913, 2005–Ohio–1541, ¶ 12.

       {¶29} The decision whether to grant a civil protection order lies within the sound

discretion of the trial court. Olenik v. Huff, 5th Dist. No. 02–COA–058, 2003–Ohio–4621,

¶ 21. Therefore, an appellate court should not reverse the decision of the trial court absent

an abuse of discretion. In order to find an abuse of discretion, this court must determine

that the trial court's decision was unreasonable, arbitrary or unconscionable and not

merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶30} We further note that a judgment supported by some competent, credible

evidence will not be reversed by a reviewing court as against the manifest weight of the

evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d

578 (1978). A reviewing court must not substitute its judgment for that of the trial court

where there exists some competent and credible evidence supporting the judgment
Knox County, Case No. 15-CA-14                                                              9

rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d 742 (1993).

The underlying rationale for giving deference to the findings of the trial court rests with

the knowledge that the trial judge is best able to view the witnesses and observe their

demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony. Seasons Coal Co. v. City of Cleveland, 10 Ohio

St.3d 77, 80, 461 N.E.2d 1273 (1984).

       {¶31} In this case, the Wilsons were placed in fear of physical harm when

appellant pointed a gun at them on February 3. We held in Coleridge v. Tomsho, 5th

Dist. No.2002CA00280, 2003–Ohio–650, that R.C. 2903.211 was written in the

disjunctive. Madison v. Wilborn, 5th Dist. Stark No. 2011CA00247, 2012-Ohio-2742, ¶

33. A petitioner can establish a fear of physical harm or mental distress. “Physical harm”

includes “any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3).

       {¶32} The trial court was alarmed by the circumstances of this case, especially by

appellant’s willingness to pull a gun when he could have avoided any confrontation

whatsoever. As we have frequently observed, “civil stalking protection order cases most

often turn on the credibility of the witnesses.” Madison v. Wilborn, 5th Dist. Stark No.2011

CA00247, 2012–Ohio–2742, ¶ 34; Kruszynski v. Kruszynski, 5th Dist. Fairfield No. 12–

CA–133, 2013–Ohio–3355, ¶ 21. We note in this case, however, beyond issues of

credibility, appellant’s admissions of his conduct toward the Wilsons support the findings

of the court below. Elkins v. Reed, 5th Dist. Stark No. 2013CA0091, 2014-Ohio-1217, ¶

36, appeal not allowed, 139 Ohio St.3d 1484, 2014-Ohio-3195, 12 N.E.3d 1230.
Knox County, Case No. 15-CA-14                                                             10


       {¶33} Based upon the record of the instant case and the remedial goal of R.C.

2903.214, we find the trial court could reasonably have inferred Baleigh and her husband

were afraid appellant would cause physical harm to one or both of them after the February

3 incident. This threat of physical harm, coupled with appellant’s continued apparent

inability or unwillingness to leave the Wilsons alone, permitted the trial court to reasonably

find appellant knowingly caused the Wilsons to fear he would physically harm one or both

of them. Short v. Walker, 12th Dist. Preble No. CA2000-08-009, 2001 WL 32808, *4 (Jan.

16, 2001), citing Lindsay v. Jackson, 1st Dist. Hamilton Nos. C-990786 and A-9905306,

unreported, 2000 WL 1268810 (Sept. 8, 2000) and Lain v. Ververis, 12th Dist. Preble

App. No. CA99-02-003, unreported, 1999 WL 893611 (Oct. 18, 1999); see also,

Kruszynski, supra, 2013-Ohio-3355 at ¶ 22.

       {¶34} Appellant’s first assignment of error is overruled.

                                                 II.

       {¶35} In his second assignment of error, appellant argues the trial court lacked

authority to reject the settlement agreement. We disagree.

       {¶36} We first note the proposed settlement agreement has not been proffered

into the record. In reviewing assigned error on appeal we are confined to the record that

was before the trial court as defined in App.R. 9(A). This rule provides that the record on

appeal consists of “[t]he original papers and exhibits thereto filed in the trial court, the

transcript of proceedings, if any, including exhibits, and a certified copy of the docket and

journal entries prepared by the clerk of the trial court.” App.R. 9(B) also provides in part

“ * * *[w]hen portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus, as to
Knox County, Case No. 15-CA-14                                                            11


those assigned errors, the court has no choice but to presume the validity of the lower

court’s proceedings, and affirm.” The appellant bears the burden of showing error by

reference to matters in the record. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197,

199, 400 N.E.2d 384 (1980).

       {¶37} In this case, therefore, we do not have the terms of the settlement

agreement as it appeared before the trial court. However, the trial court referred to terms

of the agreement on the record in open court, including a provision appellant would not

walk, drive, or otherwise pass in front of the Wilsons’ house.

       {¶38} Nevertheless, substantively we find the trial court did not err in refusing to

enforce the agreement. An oral settlement agreement entered into in the presence of the

court constitutes a binding contract. Spercel v. Sterling Industries, Inc., 31 Ohio St.2d 36,

285 N.E.2d 324 (1972), paragraph one of the syllabus; Mack v. Polson Rubber Co., 14

Ohio St.3d 34, 36, 470 N.E.2d 902 (1984). “[W]hen the parties agree to a settlement offer,

this agreement cannot be repudiated by either party, and the court has the authority to

sign a journal entry reflecting the agreement and to enforce the settlement.” Klever v.

Stow, 13 Ohio App.3d 1, 4, 468 N.E.2d 58 (9th Dist.1983). In this case, Baleigh’s

equivocation about her consent to the agreement, coupled with the trial court’s

disinclination to approve an unenforceable order, meant the court had no authority to sign

the agreement or to enforce that agreement as a contract binding upon both of the parties.

       {¶39} The Ohio Supreme Court concluded that “it is not within the province of the

trial judge to enforce a purported settlement agreement when the substance or the

existence of that agreement is legitimately disputed.” Rulli v. Fan Co., 79 Ohio St.3d 374,

376, 1997-Ohio-380, 683 N.E.2d 337 (1997). Where possible, it is generally within the
Knox County, Case No. 15-CA-14                                                           12


discretion of the trial judge to promote and encourage settlements to prevent litigation.

Id., citing In re NLO, Inc. (C.A.6, 1993), 5 F.3d 154. A trial judge cannot, however, force

parties into settlement. See id. The result of a valid settlement agreement is a contract

between parties, requiring a meeting of the minds as well as an offer and an acceptance

thereof. Id., citing Noroski v. Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 1302 (1982). To

constitute a valid settlement agreement, the terms of the agreement must be reasonably

certain and clear. Id. These factors are absent from the proposed settlement agreement

in the instant case.

       {¶40} Here, the trial court noted its uneasiness with the terms of the settlement

agreement because the proposed agreement was unenforceable. Appellant’s counsel,

the drafter of the agreement, acknowledged enforcement would require the Wilsons to

file a new petition for civil protection order. Baleigh Wilson, in court, stated she did not

agree with counsel’s statement that the agreement resulted from the parties’ agreement

“the matter had gone too far and both parties wanted it resolved;” instead, she feared the

settlement agreement might be the best outcome she could hope for if the trial court did

not take the matter seriously.

       {¶41} The trial court questioned the underlying facts of the February 3 incident

and noted its concern about use of a firearm. Baleigh’s stated reluctance, combined with

the trial court’s discomfort with the unenforceability of the purported agreement, means

the trial court was well within its discretion to refuse to accept it. We note appellant has

not presented any case law supporting its argument that the trial court abused its

discretion in rejecting the terms of the settlement agreement under these circumstances.

       {¶42} Appellant’s second assignment of error is overruled.
Knox County, Case No. 15-CA-14                                                      13


                                    CONCLUSION

       {¶43} Appellant’s two assignments of error are overruled and the judgment of the

Knox County Court of Common Pleas is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
