[Cite as Bey v. Rasawehr, 2019-Ohio-57.]




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


JONI BEY,

        PETITIONER-APPELLEE,                             CASE NO. 10-18-02

        v.

JEFFREY RASAWEHR,                                        OPINION

        RESPONDENT-APPELLANT.


REBECCA RASAWEHR,

        PETITIONER-APPELLEE,                             CASE NO. 10-18-03

        v.

JEFFREY RASAWEHR,                                        OPINION

        RESPONDENT-APPELLANT.


                Appeals from Mercer County Common Pleas Court
                   Trial Court Nos. 17-CV-013 and 17-CV-014

                                    Judgments Affirmed

                           Date of Decision: January 14, 2019


APPEARANCES:

        Dennis E. Sawan for Appellant

        Ryan K. Miltner for Appellee

        Eugene Volokh, Pro Hac Vice, First Amendment Clinic,
             UCLA School of Law
Case Nos. 10-18-02, 10-18-03


SHAW, J.

       {¶1} Respondent-appellant, Jeffrey Rasawehr (“Rasawehr”), appeals the

January 18, 2018 Orders of Protection issued against him by the Mercer County

Common Pleas Court. On appeal, Rasawehr claims: that the condition set forth in

the trial court’s Orders of Protection amounts to an unconstitutional prior restraint

and restriction on the exercise of his First Amendment Right to Free Speech; that

the trial court’s Orders of Protection are void for vagueness; that the trial court

exceeded its discretion in fashioning the Orders of Protection because the relief

ordered was not rationally related to the facts of the case; and that the trial court

abused its discretion in issuing the Orders of Protection because the Petitioners

failed to meet the statutory requirements for acquiring the Orders of Protection.

                           Facts and Procedural History

       {¶2} This consolidated appeal arises from two cases at the trial court level

involving petitions seeking civil stalking protection orders (“CSPO”) filed by Joni

Bey (“Joni”), Rasawehr’s sister, in appellate case number 10-18-02, and Rebecca

Rasawehr (“Rebecca”), Rasawehr’s mother, in appellate case number 10-18-03.

       {¶3} On November 16, 2017, Joni and Rebecca each filed a petition for a

CSPO pursuant to R.C. 2903.214 naming Rasawehr as the Respondent. In a

supplement to her petition, Joni identified nine separate incidents between June

2016 and November 2017 during which Rasawehr had allegedly made claims on


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various internet websites and social media outlets that Joni killed her husband,

Raymond Bey, and/or participated in a conspiracy with Mercer County officials to

“cover-up” the circumstances of her husband’s death. Joni also alleged that in

November 2017 Rasawehr made a false complaint to Mercer County Children

Services stating that Joni’s son was endangered from “extreme malnourishment.”

(Bey Petition, Doc. No. 1).

       {¶4} Similarly, in a supplement to her petition, Rebecca identified fourteen

separate incidents between June 2016 and November 2017 during which Rasawehr

had allegedly made claims on various internet websites and social media outlets that

Rebecca killed her husband, Rasawehr’s father, Kenneth Rasawehr, and that she

was involved in other acts of conspiracy and corruption with Mercer County

officials related to the death of her husband. In addition, both Joni and Rebecca

also claimed that Rasawehr hired a private investigator, who attempted to interview

them under false pretenses by claiming he was an out-of-state attorney investigating

Rasawehr.

                        Evidence Presented at the Hearing

       {¶5} On December 4, 2017, the trial court held a hearing on both petitions,

where Joni and Rebecca testified.

       {¶6} Joni testified that her husband, Raymond, died on November 4, 2015,

and that Rasawehr publically accused her of contributing to his death. She identified


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comments Rasawehr had made in editorials/articles on the Lima News website and

postings he had composed on Craigslist in the summer of 2016 reiterating these

accusations. (Dec. 4, 2017 Hrg., Ex. 6 Lima News Comments dated July 30, 2016;

Ex. 7 craigslist posting dated June 15, 2016; Ex. 8 craigslist posting dated June 6,

2016).

         {¶7} She also identified a photograph of a billboard located near her home.

(Dec. 4, 2018 Hrg., Ex. 3). Joni described the billboard as an advertisement for the

website “countycoverup.com.” Specifically, the billboard depicted a portrait style

picture of Rasawehr, comprising nearly a third of the ad space, and stated “Jeff

Rasawehr says, ‘LEARN ABOUT COUNTY CORRUPTION & COVER-UPS AT…’

CountyCoverUp.com.” (Id.)(emphasis in original).

         {¶8} At the hearing, Joni also identified several postings from the website

countycoverup.com that accused her of killing and/or “let[ting] her husband die,”

and further alleged that Joni participated in a conspiracy with Mercer County

officials to suppress the details of Raymond’s death from the public. These website

postings also claimed that Joni is a felon and on a Florida’s “Most Wanted” list.

(Dec. 4, 2017 Hrg., Ex. 1 website posting dated Nov. 14, 2017; Ex. 4 website posting

dated Nov. 8, 2017; Ex. 5 website posting dated Oct. 5, 2017).

         {¶9} In addition to the website postings on countycoverup.com, which

purported to be authored by Rasawehr and identified Joni as “my sister,” and both


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Rebecca and Joni, as “my white trash relatives” and “my corrupt family,1” the

website also included a report written by Private Investigator, Jack Bastian, who

Rasawehr hired to complete a document entitled “Death Investigation of Raymond

Bey.” (Ex. 4 website posting dated Nov. 8, 2017; Ex 9 craigslist posting dated June

4, 2016; Ex. 13 website posting dated Sept. 13, 2017 ). This “death investigation”

reiterated Rasawehr’s claim that Raymond died under “suspicion of foul play” and

suggested Joni’s nefarious involvement in his death. (Id.)

         {¶10} Joni recalled that Jack Bastian had come to her home in late October

or early November 2017, claiming that he was a private investigator with a law firm

in North Carolina.2 According to Joni, Bastian indicated that Rasawehr was part of

a lawsuit and testimony of a character witness for Rasawehr was needed for the

case. Bastian initially asked Joni questions about Rasawehr, however, Joni recalled

that approximately fifteen minutes into the conversation Bastian “changed his tune”

and began questioning her about Raymond’s death. (Dec. 4, 2017 Hrg. at 22). Joni

at first politely asked Bastian to leave, but when Bastian refused Joni began to yell

at Bastian to leave, which he eventually did.

        {¶11} Joni also testified that a representative from Children Services had

come to her home regarding a complaint made by an unidentified person claiming



1
  Joni further testified that there was “no doubt in [her] mind” that Rasawehr was the creator of
countycoverup.com and the postings. (Dec. 4, 2017 Hrg. at 36).
2
  The record indicates that Bastian is an Ohio licensed Private Investigator whose office is in Piqua, Ohio.

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Case Nos. 10-18-02, 10-18-03


that her thirteen-year-old son was “severely malnourished” and that she had drugs

in the home. Joni testified that she believed that Rasawehr was the person who

made the complaint.

        {¶12} With regard to how Rasawehr’s actions have affected her, Joni

explained that the billboard was placed in such a location that she and her son could

not avoid driving by it on a daily basis. She expressed fear that her son would see

the website postings or be bullied at school. Joni further testified that the postings

affected her mental health. Specifically, she testified that the website postings made

her feel “sick” and a “nervous wreck,” and that she has trouble leaving the house

due to the humiliation she felt living in a small community and knowing others

living there had viewed the website postings. (Dec. 4, 2017 Hrg. at 37-38). She

further revealed that she attended weekly counseling sessions to cope with the

situation, took an anti-depressant, and expressed that life had become a “daily

struggle.” (Id. at 42).

        {¶13} Rebecca’s testimony also revealed that Rasawehr began making

similar accusations about her contributing to the death of her husband, Kenneth

Rasawehr, who died on January 9, 2008, in craigslist postings in the summer of

2016.    In one craigslist posting, under that “rants & raves” category in the

“personals” section entitled “why I post by jeff rasawehr,” Rasawehr calls his family

“white trash” and outlined his accusations that “my mother sat my father in a chair


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and left him to die instead of calling for help—but the county as usual did nothing

and now her daughter Joni Bey has done the same thing with her husband.” (Ex. 9

craigslist posting dated June 4, 2016). In the same posting, Rasawehr further stated

that “BECKY RASAWEHR—is evil she will never get it—but if this evil can end—

what a great revenge.” (Id.)

       {¶14} Rebecca explained that she first learned of the billboard advertising

countycoverup.com from her grandchildren, Rasawehr’s children. Rebecca also

identified postings on countycoverup.com that she believed Rasawehr created.

These postings implicated her in contributing to her husband’s death and conspiring

with Mercer County officials to hide “suspicious circumstances.” (Dec. 4, 2017

Hrg., Ex. 10 website posting dated Nov. 3, 2017; Ex. 11 website posting dated Nov.

2, 2017; Ex. 12 website posting dated Oct. 1, 2017; Ex. 12 website posting dated

September 13, 2017 ). The postings also alleged that in regards to Raymond Bey’s

death, “Joni learned well from her mother Becky!” (Dec. 4, 2017 Hrg., Ex. 10

website posting dated Nov. 3, 2017). At the conclusion of these postings, a “Call to

Action” appears encouraging citizens of Mercer County to get involved in the

investigation of Rasawehr’s claims regarding Joni and Rebecca and the alleged

“corruption” of Mercer County officials.

       {¶15} Rebecca testified that Rasawehr’s internet posts affected her on a

daily basis, characterizing Rasawehr’s conduct as bullying and harassment that


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never stops. Rebecca explained that Rasawehr’s actions have caused her to “go on

blood pressure medicine” and required her to “take antianxiety medicine.” (Dec. 4,

2017 Hrg. at 84). She also stated that in the past Rasawehr had made her fear for

her physical safety, which prompted her to install an alarm system and security

lights.

          {¶16} Both Joni and Rebecca sought relief in the form of the trial court

ordering Rasawehr to refrain from posting about them on any social media service,

website, discussion board, or similar outlet, and from sending them text messages

and emails.

          {¶17} For his part, Rasawehr elected to invoke his Fifth Amendment right

and did not testify.

          {¶18} On December 8, 2017, Joni and Rebecca each filed a Notice of

Subsequent Events, alleging telephone misconduct by Rasawehr following the

December 4, 2017 hearing. The specific incident was alleged to have occurred the

day after the hearing on the petitions where Joni had revealed during her testimony

that she had quit a job due to the stress and humiliation she felt from Rasawehr’s

internet postings and had disclosed her prior place of employment. The next day,

Joni’s former employer received a telephone call. The unidentified male caller

requested information regarding Joni’s employment.




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       {¶19} In an affidavit attached to the Notice, the employee of the company

who answered the telephone call averred that she “googled” the number that

appeared on the caller identification and the search results “suggested that the

number is associated with Jeff Rasawehr.” (10-18-02, Doc. No. 14; 10-18-03, Doc.

No. 11).

       {¶20} On January 18, 2018, the trial court granted Joni and Rebecca’s

Petitions for CSPOs. Specifically, the trial court found that:

       Based upon the evidence presented, the court finds that the
       respondent Jeffrey Rasawehr authored the internet postings as
       contained in petitioners’ exhibits consistent with the testimony
       offered by each of the petitioners and the respondent’s failure to
       present any evidence to the contrary. By doing so, the respondent
       engaged in a pattern of conduct which proximately caused each
       of the petitioners fear and mental distress, and respondent did so
       with the knowledge, if not the intent, that his posting of the
       information would cause each of the petitioners fear and mental
       distress. The mental distress suffered by each of the petitioners
       has included losing sleep, unwanted communication, and in
       response to questions by others who have viewed the information
       on the various websites, their resulting reluctance to be seen in
       public due to embarrassment, worry, anxiety, and humiliation as
       evidenced by petitioner Bey seeking and receiving psychological
       counseling and petitioner Rebecca Rasawehr taking anxiety
       medication. The anxiety of each petitioner has risen to the extent
       that each fears physical harm may be inflicted upon them by the
       respondent. In arriving at such findings of fact, the court has
       concluded that the petitioners have sustained their burdens of
       proof, and nothing that the respondent presented by way of
       evidence or argument outweighs what petitioners presented.

(Jan. 18, 2018 Orders of Protection).



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       In addition to the standard orders requiring Rasawehr to have no contact with

either Joni or Rebecca for a period of five years, the trial court also issued the

following as a specific condition to the Orders of Protection:

       RESPONDENT SHALL REFRAIN from posting about
       Petitioners on any social media service, website, discussion board,
       or similar outlet or service and shall remove all such postings
       from CountyCoverUp.com that relate to Petitioners. Respondent
       shall refrain from posting about the deaths of Petitioners’
       husbands in any manner that expresses, implies, or suggests that
       the Petitioners are culpable in those deaths.


       {¶21} It is from these Orders of Protection that Rasawehr appeals, presenting

the following assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT’S ORDER EXCEEDS THE COURT’S
       DISCRETION BECAUSE IT IS AN UNCONSTITUTIONAL
       PRIOR RESTRAINT AND RESTRICTION ON THE
       EXERCISE OF THE APPELLANT’S FIRST AMENDMENT
       RIGHT TO FREE SPEECH.

                       ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT’S ORDER IS VOID FOR VAGUENESS
       UNDER THE FIFTH AND FOURTEENTH AMENDMENTS
       OF THE U.S. CONSTITUTION BECAUSE IT DOES NOT
       SUFFICIENTLY APPRISE THE APPELLANT OF WHAT
       CONDUCT WOULD SUBJECT HIM TO CRIMINAL
       CONTEMPT SANCTIONS.

                       ASSIGNMENT OF ERROR NO. 3

       THE COURT ABUSED ITS’ DISCRETION BY ORDERING
       RELIEF THAT WAS NOT RATIONALLY RELATED TO THE

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Case Nos. 10-18-02, 10-18-03


       FACTS OF THE CASE AND THE COURT EXCEEDED ITS
       DISCRETION TO ORDER RELIEF BECAUSE THE OHIO
       CSPO STATUTE ONLY PERMITS RELIEF THAT IS
       ABSOLUTELY NECESSARY FOR THE SAFETY AND THE
       PROTECTION OF THE PETITIONERS.

                        ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ABUSED ITS’ DISCRETION IN
       ORDERING A CSPO BECAUSE THE APPELLEES FAILED
       TO MEET THE REQUIREMENTS UNDER OHIO LAW FOR
       THE GRANTING OF A CSPO.


       {¶22} For ease of discussion, we elect to address the assignments of error

together.

               First, Second, Third and Fourth Assignments of Error

       {¶23} Before we address the arguments raised on appeal pertaining to the

specific condition of the Orders of Protection, which Rasawehr claims violates his

right to Free Speech, we will first address whether the evidence in the record

supports the trial court’s determination that the Petitioners satisfied their burdens in

establishing that the CSPOs against Rasawehr were warranted.

                                 Standard of Review

       {¶24} Generally, when reviewing a trial court’s decision to grant a CSPO,

we will not reverse the decision absent an abuse of discretion. Prater v. Mullins, 3d

Dist. Auglaize No. 2-13-04, 2013-Ohio-3981, ¶ 5. An abuse of discretion implies




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Case Nos. 10-18-02, 10-18-03


that the court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St .3d 217, 219 (1983).

      {¶25} A civil stalking protection order can be sought under R.C. 2903.214

where the respondent engaged in a violation of R.C. 2903.211, which defines

menacing by stalking. See R.C. 2903.214(C). The petitioner has the burden to

prove the elements of menacing by stalking by a preponderance of the evidence.

See Felton v. Felton, 79 Ohio St.3d 34, 41-42 (1997) (General Assembly intended

to apply the usual preponderance of the evidence standard to civil domestic violence

protection order where it failed to specify another standard). Compare R.C.

2903.214(E)(1)(a) (no standard set forth for civil stalking protection order) to (b)

(where clear and convincing evidence is required for the court to order electronic

monitoring of respondent due to continuing danger).

                                   Relevant Law

      {¶26} The menacing by stalking statute provides:

      No person by engaging in a pattern of conduct shall knowingly
      cause another person to believe that the offender will cause
      physical harm to the other person or a family or household
      member of the other person or cause mental distress to the other
      person or a family or household member of the other person.

R.C. 2903.211(A)(1).

      Therefore, to be entitled to a CSPO, the petitioner must establish by a

preponderance of the evidence that the respondent (1) engaged in a pattern of


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Case Nos. 10-18-02, 10-18-03


conduct (2) that the respondent knew (3) would cause the person to be protected

under the CSPO to believe that the respondent would cause the person physical harm

or mental distress. Wilson v. Lyon, 3d Dist. Marion No. 9-16-17, 2016-Ohio-7734,

¶ 13.

        {¶27} The term “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). Even though the

phrase “closely related in time” is not defined, appellate districts have concluded

that “[i]n failing to delimit the temporal period within which the two or more actions

or incidents must occur, the statute leaves that matter to be determined by the trier

of fact on a case-by-case basis.” Wilson, supra, citing Ellet v. Falk, 6th Dist. Lucas

No. L-09-1313, 2010-Ohio-6219, ¶ 22, citing State v. Dario, 106 Ohio App.3d 232,

238 (1st Dist.1995).

        {¶28} Knowingly is defined in R.C. 2901.22(B), which provides that “[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.” “Consequently, a petitioner seeking a CSPO

under [Ohio’s menacing by stalking statute] is not required to prove purpose or




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intent to cause physical harm or mental distress.” Wilson, supra, quoting Echemann

v. Echemann, 3d Dist. Shelby No. 1-15-19, 2016-Ohio- 3212, ¶ 36.

      {¶29} With regard to the last element to be proven in order for a person to be

entitled to a CSPO, R.C. 2903.211(A)(1) does not require the petitioner to

demonstrate that he or she actually suffered physical harm. The petitioner merely

has to demonstrate that the respondent knowingly caused the petitioner to believe

that the respondent would cause him or her physical harm. R.C. 2903.211(A)(1).

Further, the statute defines “mental distress” as any of the following (a) “[a]ny

mental illness or condition that involves some temporary substantial incapacity;”

and (b) “[a]ny 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.” R.C. 2903.211(D)(2).

      {¶30} Notably, “mental distress for purposes of menacing by stalking is not

mere mental stress or annoyance.” Caban v. Ransome, 7th Dist. No. 08 MA 36,

2009-Ohio-1034, ¶ 29. While R.C. 2903.211(D)(2) requires evidence that the

person to be protected under the CSPO developed a mental condition that involved

some temporary substantial incapacity or that would normally require mental health

services, the statute does not, however, require proof that the victim sought or

received treatment for mental distress. State v. Szloh, 189 Ohio App.3d 13, 2010-


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Ohio-3777, ¶ 27 (2d Dist.). Nor does the statute require that the mental distress be

totally or permanently incapacitating or debilitating. See Retterer, 2012–Ohio–131,

¶ 41.

        {¶31} Rather, “[i]ncapacity is substantial if it has a significant impact upon

the victim’s daily life.” State v. Horsley, 10th Dist. Franklin No. 05AP-350, 2006-

Ohio-1208, ¶ 48. Thus, testimony that the respondent’s conduct caused the person

to be protected under the CSPO considerable fear and anxiety can support a finding

of mental distress under R.C. 2903.211. See Horsley at ¶ 47–48; Middletown v.

Jones, 167 Ohio App.3d 679, 2006-Ohio-3465, at ¶ 8. Additionally, evidence of

changed routine can corroborate a finding of mental distress. Smith v. Wunsch, 162

Ohio App.3d 21, 2005-Ohio-3498, ¶ 20 (4th Dist.) ¶ 20, citing Noah v. Brillhart,

9th Dist. Wayne No. 02CA0050, 2003-Ohio-2421, ¶ 16.

                  Evidence Supporting the Issuance of the CSPOs

        {¶32} Based upon the evidence previously set forth in this opinion, we find

that the trial court did not err in finding that both Joni and Rebecca proved by a

preponderance of the evidence that they were each entitled to have a CSPO issued

against Rasawehr. The trial court specifically found that Rasawehr’s conduct

violated each of the statutory elements set forth in R.C. 2903.211(A)(1), the

menacing by stalking statute, with respect to both Joni and Rebecca, and we further

note that the evidence in the record supports the trial court’s findings in this regard.


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       {¶33} On appeal, Rasawehr claims that Joni and Rebecca failed to present

sufficient evidence that he authored and/or created the internet postings and website

at issue. However, the evidence in the record established that not only did both Joni

and Rebecca testified that they believed Rasawehr was the creator and curator of the

postings on www.countycoverup.com and the author of the Craig’s List postings

and the comments on the Lima News, but Rasawehr’s first and last name also

appeared on all the postings. Moreover, some of the postings specifically identified

Joni and Rebecca as Rasawehr’s family members and the billboard sign displayed

near Joni’s home included an oversized portrait of a man, whom Joni and Rebecca

identified as Rasawehr, and included the phrase “Jeff Rasawehr says, ‘LEARN

ABOUT COUNTY CORRUPTION & COVER-UPS AT…’                     CountyCoverUp.com.”

(Dec. 4, 2018 Hrg., Ex. 3) (Emphasis in original). Based on these exhibits, and in

light of the fact that Rasawehr presented no evidence to refute Joni’s and Rebecca’s

identity of him as the author and/or creator of the internet postings, we cannot find

that the trial court abused its discretion in determining that the record supported a

finding, by the requisite burden of proof, that Rasawehr was the person who engaged

in this pattern of conduct knowing that this conduct would cause Joni and Rebecca

mental distress.

       {¶34} Rasawehr also argues that assuming he was creator/owner of

CountyCoverUp.com, the content of the website consists of several topics besides


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those related to the accusations that Joni and Rebecca caused their husbands’ death

and conspired with county officials to suppress the details of the deaths. Therefore,

Rasawehr claims that the website was maintained for a legitimate purpose other than

to simply harass the petitioners. However, none of these postings on purported other

topics were presented as evidence at the hearing on the petitions. Again, the only

evidence presented at the hearing support the trial court’s finding that these posts

were created solely with the intent to cause Joni and Rebecca mental distress.

Accordingly, we find that the trial court did not abuse its discretion in issuing the

CSPOs against Rasawehr.

                      Rasawehr’s Constitutional Challenges

       {¶35} On appeal, Rasawehr takes issue with the condition of the Orders of

Protection which states as follows:

       RESPONDENT SHALL REFRAIN from posting about
       Petitioners on any social media service, website, discussion board,
       or similar outlet or service and shall remove all such postings
       from CountyCoverUp.com that relate to Petitioners. Respondent
       shall refrain from posting about the deaths of Petitioners’
       husbands in any manner that expresses, implies, or suggests that
       the Petitioners are culpable in those deaths.

       {¶36} Rasawehr argues that the trial court exceeded its authority in

fashioning a condition in the court order, which he claims: categorically prohibits

a broad, sweeping class of future speech; provides for criminal penalties yet is




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vague, ambiguous and overly broad; and provides for relief that is not rationally

related to the evidence in the record.

       {¶37} The relevant portions of the First Amendment to the United States and

the Ohio Constitutions are as follows:

       Congress shall make no law respecting an establishment of
       religion, or prohibiting the free exercise thereof; or abridging the
       freedom of speech, or of the press; or the right of the people
       peaceably to assemble, and to petition the Government for a
       redress of grievances.

First Amendment to the U.S. Constitution

       Every citizen may freely speak, write, and publish his sentiments
       on all subjects, being responsible for the abuse of the right; and
       no law shall be passed to restrain or abridge the liberty of speech,
       or of the press. In all criminal prosecutions for libel, the truth
       may be given in evidence to the jury, and if it shall appear to the
       jury, that the matter charged as libelous is true, and was
       published with good motives, and for justifiable ends, the party
       shall be acquitted.

Article I, Section 11, Ohio Constitution

       {¶38} At the outset we note that several Ohio appellate districts have

addressed constitutional challenges to R.C. 2903.11, Ohio’s menacing by stalking

statute, on the grounds that its proscription of conduct is vague, arbitrary, or violates

the First Amendment, and have been found such arguments to be meritless. See e.g.,

State v. Plants, 5th Dist. Tuscarawas No. 2009 AP 10 0054, 2010-Ohio-2930; State

v. Barnhardt, 9th Dist. Lorain No. 05CA008706, 2006-Ohio-4531; State v. Werfel,

11th Dist. Lake Nos. 2002-L-101, 2002-L-102, 2003-Ohio-6958.

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       {¶39} As aptly stated by the Fifth Appellate District, underpinning the

rationale stated in these cases is the acknowledgement that “although we all hold

dear the First Amendment protections, we are all aware that freedom of speech is

not absolute. As such, there are classes of unprotected speech i.e., threatening

words, obscene speech, fighting words, speech that interferes with the rights of

others, speech that creates a clear and present danger, and defamatory speech.”

State v. Wieger, 5th Dist. Stark No. 2008CA00132, 2009-Ohio-1391, ¶ 19.

       {¶40} Likewise, the United States Supreme Court has long held that

“otherwise proscribable criminal conduct does not become protected by the First

Amendment simply because the conduct happens to involve the written or spoken

word. See e.g., United States v. Alvarez, 567 U.S. 709, 721 (2012) (plurality

opinion) (noting that “speech integral to criminal conduct” remains a category of

historically unprotected speech; accord Giboney v. Empire Storage & Ice Co., 336

U.S. 490, 502 (1949) (“[I]t has never been deemed an abridgment of freedom of

speech or press to make a course of conduct illegal merely because the conduct was

in part initiated, evidenced, or carried out by means of language, either spoken,

written, or printed.” (citations omitted) ) ); see also R.A.V. v. City of St. Paul, 505

U.S. 377, 389 (1992) (“[W]ords can in some circumstances violate laws directed

not against speech but against conduct (a law against treason, for example, is

violated by telling the enemy the Nation’s defense secrets) ....”).


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       {¶41} Further, the United States Supreme Court recognized that not all

speech is of equal First Amendment importance. It is speech on “ ‘matters of public

concern’ ” that is “at the heart of the First Amendment’s protection.” Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985), quoting

First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978), citing Thornhill

v. Alabama, 310 U.S. 88, 101 (1940). Rather, the First Amendment “was fashioned

to assure unfettered interchange of ideas for the bringing about of political and social

changes desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957);

New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). “[S]peech concerning

public affairs is more than self-expression; it is the essence of self-government.”

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). In contrast, speech on matters

of purely private concern is of less First Amendment concern. Connick v. Myers,

461 U.S. 138, 146-47.

       {¶42} Here, R.C. 2903.211 clearly criminalizes specific conduct directed

toward another person when done for an illegitimate purpose. As explained above,

the unrefuted evidence presented by the petitioners supported the trial court’s

finding that the specific conduct, for which Rasawehr now asserts is expressive of

a public concern and protected by the First Amendment, was not engaged in for a

legitimate reason, but instead for an illegitimate reason born out of a vendetta




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Case Nos. 10-18-02, 10-18-03


seeking to cause mental distress to his mother and sister and to exact personal

revenge.

       {¶43} Rasawehr also claims that the condition stated in the trial court’s

Orders of Protection is unconstitutionally void because it fails to define the

proscribed conduct with sufficient definiteness to constitute adequate apprisal to

preserve his due process rights. In other words, Rasawehr maintains that the

condition fails to sufficiently convey information in order to understand what type

of conduct he will be criminally prosecuted for engaging in.            An order is

unconstitutionally vague if persons “of common intelligence must necessarily guess

at its meaning and differ as to its application * * *.” Connally v. Gen. Constr. Co.,

269 U.S. 385, 391 (1926).

       {¶44} In reviewing the specific language chosen by the trial court in the

condition at issue we find Rasawehr’s arguments unconvincing. It is clear from the

language chosen that the trial court narrowly tailored the condition to redress the

specific pattern of conduct that it found Rasawehr engaged in to knowingly cause

Joni and Rebecca mental distress. And as previously stated, we conclude that the

trial court’s findings with regard to Rasawehr’s conduct meeting the elements set

forth in R.C. 2903.211 were supported by the uncontroverted evidence in the record.

       {¶45} In the alternative, Rasawehr asserts that even if the foregoing

constitutional challenges are rejected as to the section of the trial court’s order to


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Case Nos. 10-18-02, 10-18-03


“refrain from posting about the deaths of Petitioners’ husbands in any manner that

expresses, implies or suggests that the Petitioners are culpable in those deaths,” that

those same challenges should prevail against the section of the trial court’s order

stating that Rasawehr “shall refrain from posting about Petitioner on any social

media service, website, discussion board, or similar outlet or service and shall

remove all such postings from CountyCoverUp.com that relate to Petitioners.” We

disagree.

       {¶46} Rasawehr’s primary argument is that the trial court’s order is

overbroad and thereby impossible to constitutionally enforce. On the contrary, it is

our conclusion that a total ban as to all social postings, (related only to the

Petitioners for a limited time), constitutes a far clearer notice as to the proscribed

conduct and is consequently more effectively and fairly enforced than the previous

section of the trial court’s order, which will inevitably require an extremely nuanced

interpretation and determination by both Rasawehr and potentially the trial court, as

to whether any given posting referencing Petitioners “expresses, implies or

suggests” that Petitioners are culpable. This is particularly true where Rasawehr’s

extensive history of targeting the Petitioners with such serious accusations on these

social media sites would necessarily color any future references to Petitioners by

Rasawehr as implicitly sarcastic, derogatory or intimidating no matter how

superficially benign the references may appear to be at first glance.


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Case Nos. 10-18-02, 10-18-03


       {¶47} In this same context and given Rasawehr’s history of social media

abuse toward Petitioners, which history we note contains no references to

Petitioners that were not deemed to be harmful, we also find the entirety of the trial

court’s order to be appropriately limited, by reference to the Petitioners only and for

a limited time period. Moreover, we also find the trial court’s entire order to be

expressly consistent with the provisions of Article I, Section 11 of the Ohio

Constitution set forth earlier, which in the same sentence affirming the right of every

citizen to “freely speak, write, and publish his sentiments on all subjects,” also

expressly holds each citizen to be “responsible for the abuse of the right.”

(Emphasis added.) This provision clearly contemplates that at some point a citizen’s

pattern of targeted, abusive and harmful exercise of the right, which we believe to

be evident in the circumstances of this case, can constitutionally warrant an

appropriate, limited and temporary forfeiture of the right such as the trial court has

imposed in this instance.

       {¶48} Finally, we also find the trial court’s order regarding the social media

postings to be entirely consistent with, and in fact, less restrictive than the generally

Constitutionally accepted terms of the remaining portions of this and many other

similar protection orders, which purport to broadly restrict the Respondent’s

movements, not only to within any proximity of the Petitioners, but also to within

any proximity of numerous public venues and locations where the Petitioners may


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Case Nos. 10-18-02, 10-18-03


happen to be, or even might be, whether or not Petitioners are actually present at

those locations.

       {¶49} For all of the foregoing reasons, the assignments of error are overruled

and the judgments and orders of the trial court are affirmed.

                                                                Judgments Affirmed

PRESTON, J., concurs.

/jlr


ZIMMERMAN, P.J., dissents in part and concurs in part.

       {¶50} In its Orders of Protection, the trial court issued the following orders

in addition to the standard orders that required Rasawehr to stay away from and not

initiate contact with either Joni or Rebecca:

       “RESPONDENT SHALL REFRAIN from posting about
       Petitioners on any social media service, website, discussion board,
       or similar outlet or service and shall remove all such postings
       from CountyCoverUp.com that relate to Petitioners. Respondent
       shall refrain from posting about the deaths of Petitioners’
       husbands in any manner that expresses, implies, or suggests that
       the Petitioners are culpable in those deaths.”

       {¶51} The principle in the enforcement of a CSPO is narrowly tailored to the

“interest of protecting the safety of the person protected by the order.” State ex rel.

Livingston v. Lanzinger, 6th Dist. Lucas No. L-16-1281, 2017 Ohio App.LEXIS

669 (Feb. 14, 2017). Thus, it is axiomatic that the overriding purpose of a CSPO is

to protect the future safety of the protected person.

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Case Nos. 10-18-02, 10-18-03


         {¶52} Further, enforcement of a CSPO, generally, is through contempt

proceedings in the trial court. R.C. 2903.214(K). And, “[a] party cannot be found

in contempt if the contempt charge is premised on a party’s failure to obey an order

of the court and the order is not clear, definite, and unambiguous and is subject to

dual interpretations.” Contos v. Monroe County, 7th Dist. Monroe No. 04 MO 3,

2004-Ohio-6380, ¶ 15, citing Chilcote v. Gleason Const. Co., 5th Dist. Ashland No.

01COA01397, *2 (Feb. 6, 2002), Collette v. Collette, 9th Dist. Summit No. 20423,

*2 (Aug. 22, 2001), Marysville v. Wilson, 3rd Dist. Union No. 14-94-8, *2 (July 20,

1994), Smith v. Smith, 10th Dist. Franklin Nos. 64299 and 64300, *2 (Dec. 16,

1993).     However, “[a]n order is not ambiguous merely because a party

misunderstands the order and a misunderstanding of an unambiguous order is not a

defense to a contempt proceeding.” Id., citing Chilcote at *2 and Gilbert at *7. “To

be ambiguous, the order must be unclear or indefinite and subject to dual

interpretations.” Id., citing Chilcote at *2 and Gilbert at *8.

         {¶53} In the case before us, the trial court’s order directing Rasawehr to

“refrain from posting about Petitioners on any social media service, website,

discussion board, or similar outlet service and shall remove all such postings from

CountyCoverUp.com that relate to Petitioners” is problematic. This order, directing

Rasawehr to “refrain from posting about Petitioners” is ambiguous.         Clearly,

although not set forth in the record, potential harmless posts (from the Appellee to


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Case Nos. 10-18-02, 10-18-03


the Petitioners) (i.e. birthday greetings, holiday invitations, condolences, days of

special meaning, family events, etc. etc.) are impacted by this portion of the trial

court’s order.   With the safety of Petitioners being primary, such seemingly

innocuous posts (by Rasawehr about the petitioner) would be a violation of the trial

court’s order.   As such, the interpretation of the context of postings “about

Petitioners” that are prohibited is ambiguous. Similarly, the trial court’s order

directing Rasawehr to “remove all such postings… that relate to Petitioners” is also

ambiguous for similar reasons.

       {¶54} In short, I suggest that the first sentence of the trial court’s order (set

forth above) is unenforceable as presently written. As such, this portion of each

protection order is contrary to law.

       {¶55} Nonetheless, I agree that the second sentence of the trial court’s order

(in question) does apprise Rasawehr of what future postings (relating to the

Petitioners) are prohibited and is rationally related to the pattern of conduct (of

Rasawehr) that caused each Appellant mental distress. As such, I conclude that this

portion of the trial court’s order is for the protection and safety of the protected

person and is not ambiguous.

       {¶56} Therefore, I would reverse this matter solely as to the first sentence

(set forth above) and affirm the issuance of both CSPO’s in line with the majority’s

reasoning.


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