[Cite as Hudnell v. Blackshear, 2017-Ohio-2680.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 WILLIE HUDNELL                                    :
                                                   :
         Plaintiff-Appellant                       :   Appellate Case No. 27221
                                                   :
 v.                                                :   Trial Court Case No. 2016-CV-2945
                                                   :
 DENNIS BLACKSHEAR                                 :   (Civil Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellee                        :
                                                   :

                                              ...........

                                              OPINION

                              Rendered on the 5th day of May, 2017.

                                              ...........

WILLIE HUDNELL, 1616 Superior Avenue, Dayton, Ohio 45402
      Plaintiff-Appellant-Pro Se

DENNIS BLACKSHEAR, 1607 Superior Avenue, Dayton, Ohio 45402
     Defendant-Appellee-Pro Se

                                            .............




TUCKER, J.
                                                                                         -2-




      {¶ 1} Petitioner-appellant Willie Hudnell appeals pro se from a decision of the

Montgomery County Court of Common Pleas denying his petition for a civil stalking

protection order. For the reasons set forth below, we affirm.



                               I. Procedural History

      {¶ 2} On June 13, 2016, Hudnell filed a petition for a civil stalking protection order

against his neighbor Dennis Blackshear. Hudnell set forth the following as the basis for

the petition: “My neighbor Dennis Blackshear has a device on top of his house according

to Birch Communication. When he talk [sic] on his CB it cut off [sic] my phone where as

I can’t hear any one but him.” Hudnell caused a subpoena to be served upon Birch

Communication seeking a “phone recording that was recorded on 5-23-16 at 11:30 a.m.”

      {¶ 3} According to the record, an ex parte hearing was conducted, following which

the request for an emergency order was denied. The matter was set for a full hearing.

Prior to the hearing, Hudnell caused a subpoena to be served upon Dayton Police

Department Officer William Davis.

      {¶ 4} It appears that a hearing was conducted before a magistrate on August 2,

2016. The magistrate made findings of fact; however, the transcript of the hearing before

the magistrate was not filed, and is not a part of the record before us. Thus, we accept

the following findings made by the magistrate as accurate. Hudnell and Blackshear are

neighbors.   Hudnell believes that Blackshear is using his CB radio to interfere with

Hudnell’s phone line.      Hudnell has heard Blackshear’s voice over his phone.

Blackshear did not know whether his radio interfered with Hudnell’s phone, but he offered
                                                                                        -3-


Hudnell an interference blocker. Hudnell refused to take the blocker. Officer Davis had

been called to the residences on multiple occasions over the course of three months. He

noted that Blackshear has a CB tower. Davis was able to hear the claimed interference,

but was not able to conclude that it was caused by the CB. He found that Hudnell’s

telephone was outdated, and that even a police radio could cause the interference.

Davis stated that Hudnell either needed a newer phone system or an interference blocker.

      {¶ 5} Following the hearing, the magistrate denied the petition. The trial court

affirmed and adopted the magistrate’s decision. Hudnell appeals.



                II. The Trial Court Did Not Err By Denying The Petition.

      {¶ 6} We begin by noting that Hudnell’s appellate filings do not set forth an

assignment of error nor, in fact, any argument regarding the decision of the trial court as

required by App.R. 16(A).     Thus, we will review the trial court’s judgment with the

presumption that Hudnell believes it was erroneously rendered.

      {¶ 7} Hudnell's request for a civil protection order was sought pursuant to R.C.

2903.214(C)(1) which allows individuals to seek civil protection orders based on

allegations that a respondent has engaged in a violation of R.C. 2903.211, Ohio’s

menacing by stalking statute. Thus, when determining whether a civil stalking protection

order should have been issued pursuant to R.C. 2903.214, the reviewing court must

determine whether the petitioner proved by a preponderance of the evidence that the

respondent engaged in conduct constituting menacing by stalking. L.L.L. v. Junies, 2d

Dist. Greene No. 2013 CA 31, 2014-Ohio-141, ¶ 14.

      {¶ 8} Menacing by stalking is defined as engaging in a pattern of conduct that
                                                                                        -4-


knowingly causes 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(A)(1). To

establish a pattern of conduct, there only needs to be “two or more actions or incidents

closely related in time.” R.C. 2903.211(D)(1). “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).

       {¶ 9} “Physical harm” includes “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). “Mental distress”

is defined in R.C. 2903.211(D)(2) as either “(a) [a]ny mental illness or condition that

involves some temporary substantial incapacity; [or] (b) [a]ny mental illness or condition

that would normally require psychiatric treatment, psychological treatment, or other

mental health services, * * *.”

       {¶ 10} There is no evidence in this record that Hudnell believed that Blackshear

would cause him physical harm. Further, we find insufficient evidence on this record to

establish that Blackshear engaged in a pattern of conduct. Indeed, it is not clear from

this record whether Hudnell heard Blackshear’s voice over his phone line on more than

one occasion. Nor is there any evidence to establish that Blackshear took any action

whatsoever to cause the interference with Hudnell’s telephone. At most, the record

indicates that Blackshear’s use of his CB radio may have resulted, inadvertently, in some

interference with Hudnell’s phone. But even so, there is no evidence that Blackshear

was aware of when Hudnell used his phone, or that Blackshear used his radio at those

times in order to cause the interference. In other words, there is no evidence of intent.
                                                                                            -5-


       {¶ 11} Instead, the evidence establishes that Hudnell’s telephone was outdated

and susceptible to interference from sources other than Blackshear’s CB radio. There

was no competent evidence that actually established that it was Blackshear’s CB radio,

as opposed to some other device, that was the cause of the interference. There was

competent evidence to establish that Blackshear offered Hudnell a device that would

block any such interference, which negates the claim that Blackshear knowingly caused

mental distress. We also find insufficient evidence to establish that Hudnell suffered any

mental distress.

       {¶ 12} We review a trial court's decision on a petition for a civil protection order for

an abuse of discretion. Ngqakayi v. Ngqakayi, 2d Dist. Greene No. 2007 CA 85, 2008–

Ohio–4745, ¶ 4. The term “abuse of discretion” implies that the trial court's decision was

unreasonable, arbitrary or unconscionable. Raska v. Raska, 2d Dist. Clark No. 2014 CA

29 and 2014 CA 35, 2014–Ohio–5449, ¶ 6. “In weighing the evidence, the court of

appeals must always be mindful of the presumption in favor of the finder of fact.” Eastley

v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 21. “Because the

trier of fact sees and hears the witnesses at trial, we must defer to the factfinder's

decisions whether, and to what extent, to credit the testimony of particular witnesses.”

Seitz v. Harvey, 2d Dist. Montgomery No. 25867, 2015–Ohio–122, ¶ 41, citing State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). Given the

lack of a transcript, we cannot say that the findings of fact are erroneous.

       {¶ 13} As a final note, Hudnell has attached documents to his appellate filings.

The first document consists of a letter from Birch Communications to Hudnell stating that

the company was not in possession of a recorded call as set forth on the subpoena issued
                                                                                           -6-


by Hudnell. The second document is a letter from Birch Communications to the FCC

noting that the company had tested Hudnell’s telephone line and had not discovered any

irregularities. Neither of these documents is a part of the record before us. Thus, we

may not consider them.        Even if we did, they do not establish Hudnell’s right to a

protection order.

         {¶ 14} From the record before us, we conclude that there is insufficient evidence

to establish that Blackshear is guilty of menacing by stalking. Therefore, we conclude

that the trial court did not err in denying Hudnell’s petition for a civil stalking protection

order.

                                    III. Conclusion

         {¶ 15} The judgment of the trial court is affirmed.




                                       .............



FROELICH, J. and WELBAUM, J., concur.



Copies mailed to:

Willie Hudnell
Dennis Blackshear
Hon. Barbara P. Gorman
