[Cite as Wagner v. Holland, 2016-Ohio-5028.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


KRISTA WAGNER                                  :   JUDGES:
                                               :   Hon. Sheila G. Farmer, P.J.
        Petitioner - Appellant                 :   Hon. John W. Wise, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
KYLE HOLLAND                                   :   Case No. 15-CA-56
                                               :
        Respondent- Appellee                   :   OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Fairfield County
                                                   Court of Common Pleas, Case No.
                                                   15 CP 22




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  July 18, 2016




APPEARANCES:

For Petitioner-Appellant                           For Respondent-Appellee

ANGELA J. SEIMER                                   JOSEPH M. HEGEDUS
124 West Main Street, Suite 201                    Ohio Patrolmen's Benevolent Association
Lancaster, Ohio 43130                              92 Northwoods Blvd., Ste. B-2
                                                   Columbus, Ohio 43235
Fairfield County, Case No. 15-CA-56                                                         2

Baldwin, J.

       {¶1}    Petitioner-appellant Krista Wagner appeals from the October 8, 2015

Judgment Entry of the Fairfield County Court of Common Pleas granting respondent-

appellee Kyle Holland’s Motion to Dismiss and denying petitioner-appellant’s Petition for

Civil Stalking Protection Order.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}    On September 2, 2015 appellant Krista Wagner filed a Petition for Civil

Stalking Protection Order pursuant to R.C. 2903.214 against appellee Kyle Holland. An

ex parte hearing was held the same day and an Ex Parte Civil Stalking Protection Order

was granted.

       {¶3}    An oral hearing on the Petition was held on October 6, 2015. At the hearing,

appellant testified that she was married to Eric Wagner, a peace officer, and that in the

past, she had a friendship with appellee, also a peace officer that turned into a romantic

relationship in approximately May of 2015. The two met because appellant and appellee’s

wife were in the same police wives’ group and became friendly with one another.

Appellant met appellee in March/April of 2015 when she stopped at appellee’s home so

that her children could use the restroom.

       {¶4}    Appellant testified that shortly after she met appellee, he sent her “innocent”

messages on Facebook. Transcript at 13. After appellant’s relationship with appellee

changed into a physical relationship, appellee started texting appellant all of the time and

if she did not respond fast enough, “he would text me over and over and over and over

again, and he would call sometimes 15, 16, 17 times.” Transcript at 14. Appellant further

testified that she told appellant to stop and that he threatened to ruin her life. Appellant
Fairfield County, Case No. 15-CA-56                                                      3


also testified that appellee threatened to ruin her marriage, told her that he was going to

try to get her friends in trouble and told her that he was going to ruin her husband’s job.

Appellee also threatened to harm himself. The following testimony was adduced when

appellant was asked if she believed appellee’s threats to harm himself:

       {¶5}   A:   Yes, because these happened often. And there was a night in this

timeframe as well where he called me from the side of the road and told me that he had

a - - and texted me and told me that he had a gun to his neck and was one centimeter

away from pulling the trigger.

       {¶6}   Q: How did that make you feel?

       {¶7}   A: I was petrified. And he told me it would be my fault.

       {¶8}   Transcript at 27.

       {¶9}   According to appellant, appellee threated to kill her in person sometime

between June 22 and July of 2015. At the time, the two were in appellee’s car. According

to appellant, when she asked appellee, who had locked the car doors, where they were

going, he told her “that he was taking me to a warehouse to meet someone where he was

going to kill me and bury my body and nobody would find me.” Transcript at 30. Appellant

believed appellee and testified that she believed that he was capable of following through

with his threats of physically harming her, of attempting to destroy her marriage, and of

affecting her husband’s job. Appellant testified as follows when asked how appellee’s

actions affected her:

              A: Well, I can’t go take my trash out without being afraid to go to my

       garage. I’m afraid of the corn field that’s across the street from my house

       because I don’t ever know if there’s somebody there. I won’t even go get
Fairfield County, Case No. 15-CA-56                                                       4


      my mail. I can’t sleep. I stay up all night ‘till 2:00, 3:00, 4:00 in the morning

      until I’m so tired that I pass out. I sleep with every single light in my house

      on.

             My kids, I make them have lights in their rooms, so that if I have to

      go in their room, I won’t struggle to find them. I moved the gun from the TV

      stand in the left corner of my room to the closet next to my bed. That way,

      if he comes into my house, I can get the gun without having to cross the

      doorway. Every time someone’s behind me, I’m afraid it’s him following me.

             When I’m at work - - I was at work the other day and there was

      somebody in the parking lot, and I didn’t know who it was, and I was petrified

      to go inside. And I went inside and another lady followed right after me.

      And I asked her if there was still a man in the parking lot, and she said there

      were two. And the guys came up and rang the doorbell and I had to go hide

      in the other area of the building because I was so scared.

      {¶10} Transcript at 37-38.

      {¶11} On cross-examination, appellant testified that in June of 2015, she told

appellee that she had missed her period. She testified that that she had scheduled an

appointment with her OB/GYN and that if she was pregnant, the child was appellee’s.

Appellant admitted that she never changed her cell phone number and still had the same

Facebook page.     At the hearing, appellant testified that appellee never physically

assaulted her and that the last time she had contact with appellee electronically by text,

by phone, by e-mail or in person was the beginning of August of 2015. Appellant also

testified that during the period from May of 2015 through the beginning of June of 2015,
Fairfield County, Case No. 15-CA-56                                                        5


she stopped by appellee’s house when his wife was not there a couple of times a week.

She testified that the last time she was intimate with appellee was in or about mid-July of

2015 and that her last contact with appellee was in early August of 2015. After

approximately July 10 and sometime in August, “[t]here was probably several weeks, if

not a month, where we didn’t talk.” Transcript at 64. During such timeframe, appellant did

not see appellee.

         {¶12} After the incident in appellee’s car the end of June of 2015, appellant

reported the incident to her husband’s former supervisor. Appellant decided not to file a

formal complaint because she was “too scared”’ because of the threats. Transcript at 69.

Appellant testified that while, on her application for an ex parte order, she had indicated

that she had been in counseling, she had been in counseling since she was 19 years old

for anxiety. Appellant testified that her anxiety got really bad the last year because of the

stress she was under.        Appellant also testified that she e-mailed appellee on

approximately August 18th to meet with her so that she could record their conversation in

order to support her allegations against appellee, appellee ignored her request. Around

the same time, appellant began sending Facebook messages to appellee’s wife

disclosing her intimate relationship with appellee. Appellee’s wife went to the Lancaster

Police Department on September 1, 2015 and filed an incident report against appellant

alleging harassment. The next day, appellant filed her ex parte request for the protection

order.

         {¶13} Subsequently, on recross-examination, appellant agreed that she had

notified Sergeant Castle, her husband’s former supervisor, at some point in June of 2015

that she was having problems with appellee, but that she continued having intimate
Fairfield County, Case No. 15-CA-56                                                       6


sexual relations with appellee in July. On redirect, she testified that she did so because

appellee threated to ruin her life and she was trying to make him happy.

       {¶14} Copies of the text messages were admitted as exhibits.

       {¶15} At the hearing, Eric Wagner, appellant’s husband, testified that he was a

police officer with the City of Pickerington. Wagner testified that appellee sent him a text

on August 17, 2015 stating that appellant had texted him and asked him to meet her at a

hotel. According to Wagner, at the time, appellant was in bed with him. Wagner did not

respond to such test. Wagner further testified that shortly after, appellee sent him a text

stating that “him and his wife and my wife were arguing and that it needed to stop before

we both lost our jobs.” Transcript at 102. Wagner did not respond.

       {¶16} Wagner also testified that appellee made accusations against appellant in

an attempt to cause the appellant and Wagner to fight and that appellee had made threats

regarding Wagner’s job. According to Wagner, appellee started a rumor at work that

Wagner was having an affair with another employee and threatened to go to Pickerington

and start rumors against Wagner. When asked by the court, Wagner testified that he had

not had any contact with appellee at all since approximately August 17, 2015.

       {¶17} On cross-examination, Wagner testified that on August 18, 2015, he texted

appellee to leave him and his family alone and that appellee had left him alone since.

       {¶18} The final witness to testify at the hearing was Shawn Meloy, a deputy sheriff

canine handler with Fairfield County who is friends with appellant and knows appellee.

Meloy testified that appellant made him aware of her relationship with appellee and that

she felt threated and uncomfortable by her relationship with appellee. He further testified

that appellant was “very, very fearful” of appellee. Transcript at 112. On cross-
Fairfield County, Case No. 15-CA-56                                                         7


examination, Meloy testified that he did not personally witness appellee physically

harming appellant or threatening her in any way other than the text messages.

      {¶19} At the conclusion of the testimony, appellee made an oral motion to dismiss

because there had been no pattern of conduct proven proximate in time to the filing of

the Civil Stalking Protection Order and because there was no evidence of physical harm.

The trial court granted the motion, finding that there was not “an immediate and present

danger.” Transcript at 118. The trial court found that appellant had been “equally culpable

in sending text messages going the other way, encouraging the dust storm to continue

just as much as the other way.” Transcript at 119.         The trial court’s decision was

memorialized in a Judgment Entry filed on October 8, 2015.

      {¶20} Appellant now raises the following assignments of error on appeal:

      {¶21} THE TRIAL COURT ERRED IN FAILING TO ORDER A CIVIL

PROTECTION ORDER PURSUANT TO O.R.C. 2903.214.

      {¶22} THE TRIAL COURT ERRED IN DISMISSING THE PETITION FOR CIVIL

STALKING PROTECTION ORDER BASED UPON A FINDING OF LACK OF

IMMEDIATE AND PRESENT DANGER AND THAT THE ORDER WAS NOT

NECESSARY TO PROTECT THE PETITION (SIC).

       {¶23} THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE

PETITION FOR CIVIL STALKING PROTECTION ORDER AND THE DECISION OF THE

TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                              I, II, III

       {¶24} Appellant, in her three assignments of error, argues that the trial court erred

in dismissing her Petition for Civil Stalking Protection Order pursuant to R.C. 2903.214.
Fairfield County, Case No. 15-CA-56                                                      8


       {¶25} 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. section 2903.211 defines

“menacing by stalking” as follows:

       {¶26} “(A) No 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)(2) states as follows:

       {¶27} (2) “Mental distress” means any of the following:

       {¶28} (a) Any mental illness or condition that involves some temporary

substantial incapacity;

       {¶29} (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.

       {¶30} 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. “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
Fairfield County, Case No. 15-CA-56                                                        9


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. 04AP913, 2005–Ohio–1541, ¶ 12.

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

discretion of the trial court. Olenik v. Huff, 5th Dist. Ashland 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).

       {¶32} 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

rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993-Ohio-9, 614 N.E.2d

742. The underlying rationale for giving deference to the findings of the trial court rests
Fairfield County, Case No. 15-CA-56                                                      10


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).

       {¶33} The trial court, in the case sub judice, found that the pattern of conduct was

not proximate in time to the filing of the petition and that there was not “an immediate and

present danger.” Transcript at 118. There was testimony at the hearing that, from August

18, 2015 until appellant filed her petition on September 2, 2015, there was no contact

between the parties. Appellant did not file her petition until after appellee’s wife filed a

harassment complaint against her on September 1, 2015. As of the date of the October

6, 2015 hearing, there had been no contact.

       {¶34} Moreover, appellant, at the hearing, testified that she had been intimate with

appellee for the last time on approximately July 10, 2015 and that the last time she had

contact with appellee electronically or in person was the beginning of August of 2015.

Appellant made an attempt to initiate contact with appellee on either August 18, 2015 or

August 19, 2015 in an attempt to record their conversations. Around the same time,

appellant sent appellee’s wife a Facebook message telling her that the two had had a

relationship. Appellant testified that she never changed her cell phone number and still

had the same Facebook page. Moreover, as noted by the trial court, appellant “has been

equally culpable in sending text messages going the other way,…” Transcript at 119.

       {¶35} Based on the foregoing, we find that the trial court did not abuse its

discretion in dismissing appellant’s petition because the trial court’s decision was not

arbitrary, unconscionable or unreasonable. We further find that the trial court’s decision
Fairfield County, Case No. 15-CA-56                                                       11


is not against the manifest weight of the evidence. The trial court, as trier of fact, was in

the best position to assess appellant’s credibility.

       {¶36} Appellant’s three assignments of error are, therefore, overruled.

       {¶37} Accordingly, the judgment of the Fairfield County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.
