[Cite as Liles v. Keith, 2009-Ohio-6874.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STACEY J. LILES,

        PETITIONER-APPELLEE,                               CASE NO. 2-09-22

        v.

JAMES P. KEITH, II,                                        OPINION

        RESPONDENT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2009 CV 210

                                       Judgment Affirmed

                          Date of Decision:    December 28, 2009




APPEARANCES:

        John C. Huffman for Appellant

        Stacey Liles, Appellee
Case No. 2-09-22


SHAW, J.

       {¶1} The respondent-appellant, James P. Keith, II, appeals the June 26,

2009, judgment of the Common Pleas Court of Auglaize County, Ohio, granting

the request of petitioner-appellee, Stacey Liles, for a stalking civil protection order

(“CPO”).

       {¶2} The facts of this case are as follows. On June 12, 2009, Liles filed a

petition for a stalking civil protection order against Keith, her former boyfriend.

In her petition, Liles alleged that Keith engaged in numerous acts against her that

made her fear for her safety. On June 16, 2009, the trial court held an ex parte

hearing on Liles’ petition but denied her request for an emergency order.

However, the court set the matter for a full hearing on June 26, 2009, to determine

whether to issue a permanent order of protection.

       {¶3} On June 26, 2009, the trial court held the hearing. Liles testified in

support of her petition. During her testimony, Liles testified that on multiple

occasions, spanning from January 8, 2009, until June of 2009, Keith had driven

past her, shouting and raising his middle finger to her. On one such occasion, in

April of 2009, Liles testified that Keith was driving behind her on Breese Road

when he raised his middle finger to her and began moving closer to her vehicle.

She testified that at this time she “was afraid he was going to rear end me. My

boys were in there asking me if he was going to rear end us. They were scared.”



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(Hrg., 6/26/09, p. 11.) On another occasion, in January of 2009, she testified that

she saw Keith at the Taco Bell drive-thru on Shawnee Road in Lima and that she

left the restaurant. She further testified that as she was driving down Ft. Amanda

Road and approached a stop light, she testified that Keith drove into the turn lane,

“looked over at all of us, pointing his finger up like a gun like he was going to

shoot us all. Then he squealed his tires and took off.” (id.) On yet another

occasion, in March of 2009, she testified that Keith was passing her in his vehicle

on State Route 65 when he swerved towards her vehicle. Although he did not

actually enter her lane of travel, Liles stated that she felt threatened. She further

testified that she simply wanted Keith to act like he did not know her if they

happened to encounter one another so that she did not have to feel threatened by

him making hand gestures towards her.

       {¶4} After Liles testimony, Keith testified on his own behalf and denied

making any gestures towards Liles or driving his vehicle in any way as she

described. Keith’s son also testified for his father. His testimony related to one

incident in June where Liles had testified that Keith stopped his vehicle in front of

hers in Cridersville, Ohio, raised his middle finger to her, and appeared to be

shouting at her although she could not hear what he was saying. Keith’s son stated

that he recalled seeing Liles at a stop sign in Cridersville when he was a passenger




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in his father’s vehicle but that the only thing his father did was wave at Liles and

state under his breath, “Hi, Stacey.”

       {¶5} At the conclusion of the hearing, the trial court stated that it chose to

believe Liles’ testimony. Consequently, the court granted her petition for a CPO.

This appeal followed, and Keith now asserts two assignments of error.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO APPLY THE CORRECT LEGAL STANDARD
       FOR WHETHER A CIVIL STALKING PROTECTION
       ORDER SHOULD BE ISSUED.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT’S DECISION TO GRANT A CIVIL
       STALKING PROTECTION ORDER WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶6} As Keith’s assignments of error are related, we elect to address them

together. When reviewing a trial court’s decision to grant a civil protection order,

we will not reverse such a decision absent an abuse of discretion. Kramer v.

Kramer, 3rd Dist. No. 13-02-03, 2002-Ohio-4383. Abuse of discretion “connotes

more than an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5

Ohio St.3d 217, 219, 450 N.E.2d 1140. Further, if there is some competent,

credible evidence to support the trial court’s decision, there is no abuse of




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discretion. Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426; see also, C.E.

Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578.

       {¶7} Revised Code section 2903.214 governs the issuance of a civil

stalking protection order. This section provides that a person may seek civil relief

against an alleged stalker by filing a petition containing “[a]n allegation that the

respondent engaged in a violation of section 2903.211 of the Revised Code against

the person to be protected by the protection order * * *, including a description of

the nature and extent of the violation.” R.C. 2903.214(C)(1). Thus, in order to

obtain a civil stalking protection order, Liles had to establish by a preponderance

of the evidence, that Keith engaged in a violation of R.C. 2903.211, the menacing

by stalking statute, against her. Kramer, supra, at ¶ 14.

       {¶8} Revised Code section 2903.211(A)(1), Ohio’s menacing by stalking

statute, provides 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.” 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). Additionally, one incident is not sufficient to

establish a “pattern of conduct.” Kramer, supra, at ¶ 15, citing State v. Scruggs

(2000), 136 Ohio App.3d 631, 737 N.E.2d 574.



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       {¶9} In this case, Keith correctly contends that the trial court could not

merely rely upon the fact that Liles filed the petition as a basis for granting the

order. However, the court did not rely merely upon the filing of the petition. It

relied upon the statements that she made in court as well, which it was entitled to

do. Specifically, the court stated that it had considered the testimony of the parties

and that it simply came to a question of who to believe. The court then decided to

believe Liles.

       {¶10} Keith contends that instead of properly considering the evidence, the

trial court seemed to improperly base its decision merely by reasoning that Liles

would not have filed the petition if the allegations were not true. Keith points to

the following statement of the trial court from the bench prior to announcing its

decision: “Court just finds it unlikely that someone would go to the extent of

filing such a thing and making the allegations that are made if they aren’t true,

especially when that proceeding has been done in the past.” (Hrg., 6/26/09, p. 55.)

       {¶11} While it is somewhat unclear exactly what the trial court meant by

this remark, we do not believe that it reflects the basis of the trial court’s decision

in light of the ample evidence in the record supporting the decision – and

particularly in view of the trial court’s explicit reference to weighing the testimony

of Liles and Keith and finding Liles’ testimony more credible.




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       {¶12} In sum, given the testimony of Liles, which the court, having been

able to examine all the witnesses and their respective demeanors, was within its

prerogative as the trier of fact to believe, the trial court did not err in granting the

CPO. As noted, Liles testified to numerous incidences wherein Keith raised his

middle finger to her and appeared to be yelling something to her. Further, she

testified as to two different incidences where she actually felt threatened. These

incidences involved Keith driving his vehicle in a manner that caused her to fear

that his moving vehicle would collide with hers. In addition, she testified that she

felt threatened by his hand gestures and described an incident where he used his

fingers to form the shape of a gun, which he pointed at her. Thus, the trial court

had some competent, credible evidence that Keith, while engaging in two or more

actions or incidents closely related in time, knowingly caused Liles to believe that

Keith would cause physical harm to her. Accordingly, Keith’s two assignments of

error are overruled.

       {¶13} For these reasons, the judgment of the Common Pleas Court of

Auglaize County, Ohio, is affirmed.

                                                                  Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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