[Cite as Spahr v. Martin, 2019-Ohio-962.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



JORDAN SPAHR                                :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
        Petitioner-Appellee                 :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
JAMES MARTIN                                :       Case No. 18-CA-42
                                            :
        Respondent-Appellant                :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2017CV00775




JUDGMENT:                                           Reversed




DATE OF JUDGMENT:                                   March 18, 2019




APPEARANCES:

For Petitioner-Appellee                             For Respondent-Appellant

JORDAN SPAHR                                        JACK L. MOSER
187 South Kasson Street                             109 West Johnstown Road
Johnstown, OH 43031                                 Gahana, OH 43230
Licking County, Case No. 18-CA-42                                                       2

Wise, Earle, J.

         {¶ 1} Respondent-Appellant, James Martin, appeals the April 25, 2018 judgment

entry of the Court of Common Pleas of Licking County, Ohio, denying his objections and

issuing a civil sexually oriented offense protection order to Petitioner-Appellee, Jordan

Spahr.

                          FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellee worked in the meat department of Kroger. Appellant was one of

her supervisors. On July 20, 2017, appellee filed a petition for a civil sexually oriented

offense protection order against appellant. Appellee alleged appellant was sexually

harassing her and acted inappropriately. Appellee is 20 years old and appellant is

approximately 45.

         {¶ 3} A hearing before a magistrate was held on September 20, 2017. By order

filed September 27, 2017, the magistrate found by a preponderance of the evidence that

appellee is in danger of or has been the victim of a sexually oriented offense as defined

in R.C. 2950.01, committed by appellant. The magistrate issued a civil sexually oriented

offense protection order to appellee, in effect for two years. The trial court adopted the

magistrate's decision on same date.

         {¶ 4} On October 10, 2017, and February 20, 2018, appellant filed objections and

supplemental objections, respectively. Appellant claimed R.C. 2903.214, the protection

order statute, was vague and ambiguous and open to arbitrary enforcement, the statute

refers to R.C. 2950.01 which provides a fourteen count definition of a "sexually oriented

offense," there was insufficient evidence that appellant committed any offense that could
Licking County, Case No. 18-CA-42                                                         3


be construed as a sexually oriented offense, and the record did not support the findings

of fact. By judgment entry filed April 25, 2018, the trial court denied the objections.

       {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶ 6} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION IN FINDING THAT APPELLANT COMMITTED AN ACT OF SEXUAL

IMPOSITION      BASED      SOLELY      AND    ONLY     ON    THE     UNCORROBORATED

TESTIMONY OF APPELLEE."

                                             II

       {¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING THAT APPELLANT COMMITTED AN ACT OF SEXUAL IMPOSITION

PURSUANT TO RC 2907.06(A)(1), AND THE COURT'S ISSUANCE OF A CPO IS

AGAINST THE MANIFEST WEIGHT OF EVIDENCE."

                                             III

       {¶ 8} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING THAT APPELLANT COMMITTED AN ACT OF SEXUAL IMPOSITION

PURSUANT TO RC 2907.06(A)(2), AND THE COURT'S ISSUANCE OF A CPO IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                             IV

       {¶ 9} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING THAT APPELLANT HAD ENGAGED IN CONDUCT THAT INCLUDED

SEXUAL HARASSMENT."
Licking County, Case No. 18-CA-42                                                             4


                                               V

       {¶ 10} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING THAT A CIVIL PROTECTION ORDER WAS NECESSARY IN THIS CASE."

                                               VI

       {¶ 11} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

OVERRULING APPELLANT'S OBJECTIONS AND IMPROPERLY MODIFYING THE

MAGISTRATE'S DECISION."

                                             II, III,

       {¶ 12} In his second and third assignments of error, appellant claims the trial court

abused its discretion in finding he committed an act of sexual imposition as the evidence

was insufficient to support such a finding, and the issuance of the order is against the

manifest weight of the evidence. We agree.

       {¶ 13} The decision whether to grant a civil protection order lies within a trial court's

sound discretion. Bucksbaum v. Mitchell, 5th Dist. Richland No. 2003-CA-0070, 2004-

Ohio-2233. In order to find an abuse of discretion, we must determine 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, 450 N.E.2d 1140 (1983).

       {¶ 14} Sufficiency of the evidence "is a test of adequacy. Whether the evidence is

legally sufficient to sustain a verdict [decision] is a question of law." State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶ 15} "While the test for sufficiency requires a determination of whether the

prosecution has met its burden of production at trial, a manifest weight challenge

questions whether the prosecution has met its burden of persuasion." State v. Bowden,
Licking County, Case No. 18-CA-42                                                            5


8th Dist. Cuyahoga No. 92266, 2009-Ohio-3595, ¶ 13. On review for manifest weight,

the standard in a civil case is identical to the standard in a criminal case: a reviewing court

is to examine the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses and determine "whether in resolving conflicts in the

evidence, the jury [or finder of fact] clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered." State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997); Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. In weighing the evidence, however, we are

always mindful of the presumption in favor of the trial court's factual findings. Eastley at

¶ 21.

        {¶ 16} R.C. 2903.214 governs protection orders. Subsection (C)(1) states the

following in part:



               (C) 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. The petition shall contain or state all of the following:

               (1) An allegation that the respondent is eighteen years of age or older

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

        the person to be protected by the protection order or committed a sexually

        oriented offense against the person to be protected by the protection order,

        including a description of the nature and extent of the violation.
Licking County, Case No. 18-CA-42                                                         6




       {¶ 17} In order to be granted a civil sexually oriented offense protection order,

petitioner must show, by a preponderance of the evidence, that the respondent committed

a sexually oriented offense. Lloyd v. Thornsbery, 11th Dist. Portage No. 2017-P-0029,

2018-Ohio-2893, ¶ 9; Weismuller v. Polston, 12th Dist. Brown No. CA 2011-06-014, 2012-

Ohio-1476, ¶ 18. "Preponderance of the evidence" is "evidence which is of greater weight

or more convincing than the evidence which is offered in opposition to it; that is, evidence

which as a whole shows that the fact sought to be proved is more probable than not."

Black's Law Dictionary 1182 (6th Ed.1990).

       {¶ 18} Under R.C. 2903.214(A)(5), a " '[s]exually oriented offense' has the same

meaning as in section 2950.01 of the Revised Code." R.C. 2950.01(A) lists fourteen

different types of conduct that constitute a sexually oriented offense. Pertinent to this

case is subsection (A)(1) which states a sexually oriented offense "means any of the

following violations or offenses committed by a person, regardless of the person's age:

(1) A violation of section 2907.02, 2907.03, 2907.05, 2907.06, 2907.07, 2907.08,

2907.21, 2907.22, 2907.32, 2907.321, 2907.322, or 2907.323 of the Revised Code." The

trial court found appellant violated R.C. 2907.06, sexual imposition, which states the

following in pertinent part:



              (A) No person shall have sexual contact with another, not the spouse

       of the offender; cause another, not the spouse of the offender, to have

       sexual contact with the offender; or cause two or more other persons to

       have sexual contact when any of the following applies:
Licking County, Case No. 18-CA-42                                                            7


              (1) The offender knows that the sexual contact is offensive to the

       other person, or one of the other persons, or is reckless in that regard.

              (2) The offender knows that the other person's, or one of the other

       person's, ability to appraise the nature of or control the offender's or

       touching person's conduct is substantially impaired.



       {¶ 19} " 'Sexual contact' means any touching of an erogenous zone of another,

including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a

female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.

2907.01(B).

       {¶ 20} Consequently, we must determine whether, viewing the evidence in a light

most favorable to appellee, a reasonable trier of fact could find that she demonstrated by

a preponderance of the evidence that a civil protection order should issue.

       {¶ 21} Nine people testified during the hearing before the magistrate. Appellee

presented the testimony of four witnesses, plus her own testimony. She represented

herself.

       {¶ 22} Appellee first called Sunday Mourn, a Kroger employee. Ms. Mourn testified

appellant was appellee's supervisor in the meat department at Kroger. T. at 9. Appellant

would often ask Ms. Mourn what to do about appellee because she was not doing her job

properly. Id. Ms. Mourn testified appellant would discuss his personal life and his wife

with her "which made me uncomfortable but I'm fifty some years old so, you know what I

mean, but yeah that's what he would do to me." T. at 9-10.
Licking County, Case No. 18-CA-42                                                        8


       {¶ 23} Next, appellee called Debra MacDonald, a Kroger employee.                Ms.

MacDonald testified to seeing appellee "upset on a particular day," but was not a witness

to what caused her to be upset. T. at 17. Apparently appellant was "harassing" appellee

because he tried to give her gift cards she did not want. T. at 17, 20.

       {¶ 24} Appellee then called Craig Neil, store manager of Kroger. Mr. Neil testified

on July 5th, he was notified of an incident between appellant and appellee. T. at 22. He

immediately spoke to appellee and she accused appellant of saying inappropriate things

to her "such as he mentioned, hey have you ever taken a roofie, items along that line and

then he had offered her gift cards which she declined." Id. Appellee complained of things

that only happened at work. T. at 23. During the conversation, she was "very upset." Id.

Mr. Neil asked appellee if she ever told appellant that he was making her uncomfortable

and she said, "[n]o." T. at 24. Mr. Neil testified he has had "no incidents or no issues

between the both of them since then." Id.

       {¶ 25} Next, appellee called Lisa Johnson, a Kroger employee. Appellee asked

her if appellant "ever try to be more with you than just friends" to which Ms. Johnson

stated, "[y]es, but I'm a grown older person. So I guess I knew how to draw lines that if I

would have been 18, 19, 20 years old I couldn't have done for myself. There's no doubt

in my mind that you've been put in a position that you shouldn't have been put in in your

work place." T. at 37.

       {¶ 26} Appellee then took the stand. She testified after she started working in the

meat department, appellant "opened up to me about his marriage problems" and she

would listen "because you know that's what I do for people." T. at 45. On at least five

occasions he asked her to have an affair with him, and he told her he would think of her
Licking County, Case No. 18-CA-42                                                           9


while he was having sex with his wife.         T. at 46.    She never told him she was

uncomfortable; she "tried to brush it off" and "thought like I can just handle this myself

and like it's not going to happen and I can protect myself." Id. Appellee stated on one

occasion, appellant came over to her home and brought her some whiskey. T. at 49.

She drank it and then "we went upstairs and um, the only thing happened is he pulled my

pants down and then I started throwing up everywhere. And then there was just that and

that incident." Id. Appellant gave appellee gift cards, but she gave them back to him,

telling him she did not want them. Id. Appellee stated appellant would text her all the

time, but he made her delete the messages. T. at 52. She could not remember what the

texts said, but "he was like controlling and I remember reading it and I was really upset it

was nothing to do about work it was about how I lead guys on and mess with guys

something like - - it was like so inappropriate and I was upset cause it was not true at all."

Id. She also testified one time, she and appellant were in the conference room at work

and appellant was showing her something on the computer. T. at 53. Appellant "put his

hand on my lap and was like see you need to release that tension." Id. Appellee

interpreted that as needing to have sex with him, an older, more experienced man. Id.

Appellee then changed "lap" to "leg," "I remember that he put his hand on my leg." Id.

Appellee stated appellant told her "we can just make this a sex thing and nobody ever

has to know." T. at 54.

       {¶ 27} On cross-examination, when appellant's counsel questioned appellee about

the incident where appellant "came upstairs and put his hands in your lap - -," appellee

corrected him and stated, "[h]is hand on my leg." T. at 57-58. She did not tell anyone

about the incident. T. at 58. Nor did she tell anyone about the whiskey incident. Id.
Licking County, Case No. 18-CA-42                                                       10


       {¶ 28} At the conclusion of appellee's case, appellant moved the magistrate to

deny the protection order because "there's not sufficient evidence for any kind of a

restraining order any way shape or form. She doesn't show that she's in harm, or fear of

harm, she hasn't testified to any of that." T. at 67-68. The magistrate denied the motion,

stating, "she filed the Sexual Oriented Protection Order so there's enough at this point to

go forward." T. at 68.

       {¶ 29} In granting the civil sexually oriented offense protection order to appellee,

the magistrate found by a preponderance of the evidence that appellee is in danger of or

has been the victim of a sexually oriented offense as defined in R.C. 2950.01, committed

by appellant, after making the following findings of fact:



              Petitioner and respondent have worked together at Kroger and

       respondent supervised her work in the meat department. They became

       friendly and respondent took it farther and asked her to have an affair. He

       made comments regarding sex, sent her texts and visited her outside of

       work, and made her uncomfortable. She wants no further contact by him or

       his family.



       {¶ 30} The magistrate's findings clearly did not include any findings of sexual

contact of appellee by appellant.

       {¶ 31} Appellant filed objections, arguing in part there was insufficient evidence

that he committed a sexually oriented offense by a preponderance of the evidence. In
Licking County, Case No. 18-CA-42                                                      11


denying appellant's objections, the trial court stated the following in its judgment entry

filed April 25, 2018:



               However, petitioner testified about two incidents in which respondent

       could be found to have committed a sexually oriented offense. She testified

       about an incident in which respondent brought a bottle of whiskey to her

       home.    (Transcript at 49.)   She stated she was drinking whiskey and

       respondent pulled her pants down. Id. She stated she then began vomiting.

       Id. She further testified that on another occasion respondent had attempted

       to convince her to have sex with him where he put his hand on her lap. Id.

       at 53-54.



       {¶ 32} The trial court then set forth the language defining sexual imposition and

sexual contact, and stated the following:



               The Court disagrees that there was no evidence offered that

       respondent had committed a sexually oriented offense.           Rather, the

       Magistrate assessed petitioner's allegations to be credible in determining

       there was a preponderance of evidence that respondent had committed an

       offense. This determination was supported by petitioner's testimony that

       respondent had attempted to get her to have an extra-marital affair with him

       and had engaged in other conduct that included sexual harassment.

       Respondent is married, twenty-six years older than petitioner, and was in a
Licking County, Case No. 18-CA-42                                                         12


       supervisory position over her at the parties' workplace when the conduct

       occurred. Petitioner testified that she told petitioner she would not have an

       affair with him. The Magistrate is in a better position to determine the

       credibility of the witnesses, and the Court will not overrule the Magistrate's

       finding petitioner had met her burden by a preponderance of the evidence.



       {¶ 33} In reviewing the evidence presented, we disagree with the trial court's

conclusions. Accepting all of appellee's testimony as true, it does not rise to the level of

a sexual imposition offense by a preponderance of the evidence committed by appellant.

Sexual imposition requires sexual contact. Appellee testified to two incidents of unwanted

contact: 1) appellant pulling down her pants, and 2) placing his hand on her leg. There

is no testimony as to where on her leg. There is no testimony of appellant touching an

erogenous zone for the purpose of sexually arousing or gratifying either of them as

defined in R.C. 2907.01(B); therefore, there is no testimony of sexual contact. Appellee

did not meet her burden to show, by a preponderance of the evidence, that appellant

committed a sexually oriented offense under R.C. 2950.01(A).

       {¶ 34} Upon review, we find insufficient evidence to issue the civil sexually oriented

offense protection order sub judice.

       {¶ 35} Assignments of Error II and III are granted.

                                         I, IV, V, VI

       {¶ 36} Based upon our decision in Assignments of Error II and III, these

assignments are rendered moot.
Licking County, Case No. 18-CA-42                                                13


      {¶ 37} The order of protection by the Court of Common Pleas of Licking County,

Ohio is hereby reversed.

By Wise, Earle. J.,

Gwin, P.J. and

Baldwin, J. concur.




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