[Cite as Johnson v. Miller, 2018-Ohio-2113.]




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

 MABEL L. JOHNSON                                    :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2017-CA-18
                                                     :
 v.                                                  :   Trial Court Case No. 2017-DV-192
                                                     :
 LARRY W. MILLER, JR.                                :   (Civil Appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                              Rendered on the 1st day of June, 2018.

                                                ...........

JAY M. LOPEZ, Atty. Reg. No. 0080819, 18 East Water Street, Troy, Ohio 45373
     Attorney for Plaintiff-Appellee

JOHN R. FOLKERTH, JR., Atty. Reg. No. 0016366, 109 North Main Street, 500
Performance Place, Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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




TUCKER, J.
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       {¶ 1} Defendant-appellant Larry Miller appeals from a civil stalking protection order

entered against him. Miller contends that the evidence submitted to the trial court was

insufficient to establish the necessary elements of R.C. 2903.211 by a preponderance of

the evidence.

       {¶ 2} We conclude that the trial court's order in all respects but one is supported

by sufficient evidence and does not constitute an abuse of discretion. The exception,

constituting an abuse of discretion, is the provision that Miller, even if Johnson is not

present, may not visit the homes of Johnson’s relatives.



                             I. Facts and Procedural History

       {¶ 3} Miller and Mabel Johnson lived together, in a romantic relationship, for 23

years. They have no children as a result of their relationship which ended in 2016.

       {¶ 4} On July 5, 2017, Johnson filed a petition for an ex parte civil stalking

protection order (hereinafter “CSPO”) against Miller. The court granted the ex parte

CSPO and referred the matter to a magistrate for a full hearing, which was held on July

12, 2017. Both parties attended the hearing without counsel. Miller, Johnson, and

Johnson’s daughter, Angela Johnson, testified.

       {¶ 5} According to Angela, she and her children consider Miller to be a member of

their family.   Angela testified that she wanted to keep Miller involved in the lives of her

children as they consider him to be their grandfather. However, she testified that his

behavior with Johnson has caused her to avoid him. Angela testified that Miller began

his harassing behavior after her mother recently decided to begin dating other men. She
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testified that both she and her mother told Miller that Johnson did not want any contact

with him and that he should stay away from Johnson. She testified that Miller was hurt

and sad, and that when he feels this way he tends to become angry and violent. Angela

testified that in the past four months, Miller refused to stay away and showed up at

Johnson’s house at least twice. On one of those occasions, Angela was present when

he appeared as Johnson was leaving for a trip. On the other occasion, Miller called

Angela while he was outside Johnson’s home and stated that Johnson “need[ed] to come

out and talk to [him].” Tr. p. 12. She testified that Miller threatened that there would be

“problems” if Johnson was with another man. Angela further testified that she and her

mother had to change plans for a fireworks display because Miller showed up where they

planned to be. Angela testified that since Miller started harassing Johnson, Johnson has

become shaky and cries often. She testified that her mother appears stressed and

scared. Angela testified that Johnson is afraid to be outside of her home and now keeps

a firearm with her.

       {¶ 6} Johnson testified that that since she told Miller to stay away from her, he has

repeatedly called and texted her. She testified that he has threatened to come to her

place of work, and to post items on Facebook in an attempt to negatively influence her

employer. She testified that he has appeared at her home at least four times. On one

occasion he came into her back yard, and on another occasion he sat outside of her home

for 15 to 20 minutes. On two other occasions he left letters taped to her door. Johnson

testified that she has observed Miller be physically aggressive with others and that she is

scared of him and scared to leave her home.

       {¶ 7} Miller also testified. He did not deny the fact that he had been told to stay
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away from Johnson or that he continued to attempt to contact her. He also informed the

court that he did not have any guns. He then stated that even if he had firearms, he

would not obey any court order regarding their surrender. Miller also testified that he has

sold the home Johnson and he previously resided in because of an incident that occurred

when he aimed a gun at a neighbor’s child.

       {¶ 8} Following the hearing, the court issued a CSPO against Miller. It required

him to stay 500 feet away from Johnson and to surrender any deadly weapons. The

order also required that he not go to the homes of Johnson’s family members. The

CSPO is effective for five years. Miller appeals.



                                       II. Analysis

       {¶ 9} Miller’s sole assignment of error states as follows:

       THE MIAMI COUNTY COMMON PLEAS COURT COMMITTED ERROR

       WITH RESPECT TO THE ORDER OF PROTECTION ISSUED AGAINST

       LARRY W. MILLER, JR.

       {¶ 10} Miller contends that the evidence presented was not sufficient for the

issuance of a civil stalking protection order. He argues that the evidence does not

establish that he acted knowingly.      He further contends that the record does not

demonstrate that Johnson suffered mental distress. Finally, he contends the trial court

abused its discretion with regard to the scope of the protection order.

       {¶ 11} R.C. 2903.214(C)(1) allows a person to file a petition seeking relief against

another person who has engaged in conduct constituting menacing by stalking in violation

of R.C. 2903.211(A)(1). When assessing whether a civil stalking protection order should
                                                                                          -5-


issue, the trial court must determine whether the petitioner proved by a preponderance of

the evidence that the respondent engaged in menacing by stalking. Lane v. Brewster,

12th Dist. Clermont No. CA2011–08–060, 2012–Ohio–1290, ¶ 50.

       {¶ 12} Menacing by stalking is defined as “engaging in a pattern of conduct” that

“knowingly cause[s] another person 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). In order to establish a pattern of conduct, only two or more actions

closely related in time are required. R.C. 2903.211(D)(1). “A person acts knowingly,

regardless of 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.” R.C. 2901.22(B). “Thus,

in order to merit a civil protection order, the petitioner need not prove that the respondent

intended to cause actual harm to the other person; instead, the evidence must show that

the respondent knowingly engaged in a pattern of conduct that caused the other person

to believe that the respondent will cause physical harm or that caused mental distress to

the other person.” (Citations omitted.) Walker v. Edgington, 2d Dist. Clark No. 07–CA–

75, 2008-Ohio-3478, ¶ 23.

       {¶ 13} “Mental distress” is defined in R.C. 2903.211(D)(2) as any of the following:

       (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,
                                                                                        -6-


      psychological treatment, or other mental health services. * * *

      {¶ 14} “Mental distress need not be incapacitating or debilitating.” Jenkins v.

Jenkins, 10th Dist. Franklin No. 06AP–652, 2007–Ohio–422, ¶ 19.            In determining

whether a petitioner has presented appropriate evidence, the trial court does not need

expert testimony, but “may rely on its knowledge and experience in determining whether

mental distress has been caused.” Id., quoting Smith v. Wunsch, 162 Ohio App.3d 21,

2005–Ohio–3498, 832 N.E.2d 757, ¶ 18 (4th Dist.)

      {¶ 15} We review the trial court's decision to grant a CSPO under an abuse of

discretion standard of review. Hangen v. McCaleb, 2d Dist. Greene No. 2005-CA-54,

2006-Ohio-776, ¶ 7. A trial court abuses its discretion when its “attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). When applying the abuse of discretion standard, an appellate court

may not merely substitute its judgment for that of the trial court. Randall v. Randall, 2d

Dist. Darke No. 1739, 2009-Ohio-2070, ¶ 10.

      {¶ 16} The testimony establishes facts upon which the trial court could reasonably

rely in finding that Miller, after being told by both Johnson and Angela to stay away from

Johnson, engaged in a pattern of conduct consisting of repeatedly texting, calling and

threatening Johnson during the four months preceding the hearing on the protection

order. The evidence further demonstrates that he appeared at her residence, without

her permission, on at least four occasions. On one occasion, he came into her back

yard. On another occasion, he sat outside her house for approximately 15 to 20 minutes.

On two other occasions he taped letters to her door. Miller also appeared at a location

where he knew Johnson and her family would be watching fireworks. Miller told Johnson
                                                                                           -7-


that he would come to her workplace and make posts on Facebook in an attempt to

influence her employer’s opinion of her.

       {¶ 17} Miller does not contest the court’s finding that he engaged in a pattern of

conduct. However, he claims that he did not knowingly act to cause Johnson mental

distress. Instead, he contends that the evidence only demonstrates that he continued to

contact Johnson in a non-threatening manner to let her know that he did not wish to

terminate the relationship. However, the evidence in the record establishes that his

conduct went beyond benign contact. Johnson and her daughter made it clear to Miller

that Johnson did not want any further contact with him. Miller does not deny that he was

told to stay away from Johnson, but despite this, he continued his pattern of behavior.

Based upon this record, we cannot say that the court abused its discretion in finding that

Miller acted knowingly.

       {¶ 18} Miller next challenges the finding that Johnson suffered mental distress. In

support, he claims this finding is belied by the fact that Johnson came to his home, two

or three weeks prior to the hearing, to visit him. However, the record does not support

the claim that Johnson came to visit him. Instead, the record establishes that Johnson

merely drove her granddaughter to Miller’s home. The record supports a finding that

Johnson immediately drove away from the home after her granddaughter exited the car.

Further, there is evidence in the record that Johnson is afraid to leave her home and feels

the need to carry a gun with her for protection.

       {¶ 19} The magistrate gave more credence to the testimony of Johnson and her

daughter, Angela, than that of Miller. The credibility of witnesses and the weight to be

given to their testimony are primarily matters for the trier of the facts to resolve. State v.
                                                                                           -8-

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. We

note that both Johnson and her daughter appear, from the record, quite sincere and

credible, while Miller appears inherently incredible. We conclude that the trial court did

not abuse its discretion in finding that Miller’s conduct constitutes menacing by stalking.

       {¶ 20} We next address whether the trial court abused its discretion with regard to

the scope of the protection order. Miller objects to the restriction that he surrender any

deadly weapons and that he not go to the homes of Johnson’s relatives. Given Miller’s

testimony regarding pointing a gun at a child, along with Angela’s testimony that Miller

acts angry and violent, we cannot say that this restriction with respect to weapons

constitutes an abuse of discretion. In any event, according to Miller’s own testimony, the

issue is moot as he denied owning any guns. We, however, find that the trial court

abused its discretion by ordering that Miller, even in Johnson’s absence, cannot visit the

homes of Johnson’s relatives. The CSPO prevents Miller from being within 500 feet of

Johnson, with this provision obviously preventing Miller from visiting Johnson’s relatives,

at their homes or otherwise, when Johnson is in the company of her relatives. Thus, the

purpose of the CSPO – to protect Johnson – is not advanced by preventing Miller, even

when Johnson is not present, from visiting the homes of Johnson’s relatives.

       {¶ 21} We conclude that the civil stalking protection order issued by the trial court

is supported by the evidence, and does not, with one exception, constitute an abuse of

discretion. The sole assignment of error is overruled in part and sustained in part.



                                      III. Conclusion

       {¶ 22} Miller's sole assignment of error is sustained, in part, and overruled, in part.
                                                                                          -9-


The provisions of the Civil Stalking Protection Order are affirmed with the exception of the

order’s absolute prohibition regarding Miller’s ability to visit the homes of Johnson’s

relatives, even when Johnson is not present. This matter is remanded to the trial court

for the modification of this provision to reflect that Miller is prohibited from visiting the

homes of Johnson’s relatives only when Johnson is present at the relatives’ homes.

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



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Jay M. Lopez
John R. Folkerth, Jr.
Hon. Christopher Gee
