[Cite as A.S. v. P.F., 2013-Ohio-4857.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

A.S.                                                  C.A. No.     13CA010379

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
P.F.                                                  COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   13CV179323

                                  DECISION AND JOURNAL ENTRY

Dated: November 4, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Appellant, P.F., appeals a stalking civil protection order issued by the Lorain

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     A.S. and P.F. were friends with a shared interest in animal welfare. They worked

together as part of an animal rescue organization, communicating frequently by means of

Facebook and text messaging. In late 2012, a disagreement about the involvement of a third

person in their Facebook group dissolved their relationship, leading to hard feelings, harsh

words, and threatening electronic messages. Around the same time, a third person learned of

A.S.’s criminal record and took steps to reveal it to her employer. A.S. petitioned the Lorain

County Court of Common Pleas for a stalking civil protection order, which issued after a full

hearing on the petition. P.F. appealed.
                                                   2


                                                  II.

                                    ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED TO THE PREJUDICE OF [P.F.] BY GRANTING
        A CIVIL STALKING PROTECTION ORDER AGAINST [P.F.].

        {¶3}    In her assignment of error, P.F. has raised four “issue[s]” that, in her view,

demonstrate that the protection order issued in error. The first three issues are arguments that the

trial court’s conclusion that A.S. was entitled to a civil stalking protection order is against the

manifest weight of the evidence.1 The fourth issue that A.S. has identified argues that the scope

of the protection order is an abuse of the trial court’s discretion.

        {¶4}    Because this case arose after July 1, 2012, it is governed by the provisions of

newly-adopted Civ.R. 65.1. “According to Civ.R. 65.1(F)(3), civil protection petitions may be

referred to a magistrate for determination, but civil protection orders are not ‘magistrate’s

order[s]’ as contemplated by Civ.R. 53(D) and are not subject to the requirements of Civ.R. 53

related to magistrate’s orders.” R.C. v. J.G., 9th Dist. Medina No. 12CA0081-M, 2013-Ohio-

4265, ¶ 5. The trial court’s review is limited, and a protection order is a final appealable order

that may be fully reviewed on appeal with or without objections being filed in the trial court. Id.

Consequently, as in other civil cases, we review the evidence underlying protection orders to

determine whether sufficient evidence was presented or whether the protection order is against

the manifest weight of the evidence. Id. at ¶ 6, citing Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, paragraph two of the syllabus. With respect to the scope of a protection order,

however, we consider whether the trial court abused its discretion. R.C. at ¶ 15.




        1
          Although P.F. has phrased these issues in terms of sufficiency, we note that the
substance of her arguments is that in light of all of the evidence presented, the trial court’s
decision is not supported by the weight of the evidence.
                                                3


       {¶5}   In this case, P.F.’s first argument is that the protection order is against the

manifest weight of the evidence. Consequently, this Court

       “weighs the evidence and all reasonable inferences, considers the credibility of
       witnesses and determines whether in resolving conflicts in the evidence, the
       [finder of fact] clearly lost its way and created such a manifest miscarriage of
       justice that the [judgment] must be reversed and a new trial ordered.”

(Internal citations omitted.) Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103,

115 (9th Dist.2001). A reversal on this basis is reserved for the exceptional case in which the

evidence weighs heavily against the judgment. State v. Otten, 33 Ohio App.3d 339, 340 (9th

Dist.1986), citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶6}   In order for a civil stalking protection order to issue, the trial court must find that

the petitioner has shown by a preponderance of the evidence the respondent committed an act

against the petitioner that would constitute menacing by stalking. Lewis v. Jacobs, 2nd Dist.

Montgomery No. 25566, 2013-Ohio-3461, ¶ 9. R.C. 2903.211(A)(1), in turn, provides that “[n]o

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 cause mental distress to the other

person.” “A person acts knowingly, regardless of his 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).

       {¶7}   R.C. 2903.211(A)(1) permits proof that the petitioner feared physical harm or

suffered mental distress. See, e.g., State v. Barnhardt, 9th Dist. Lorain No. 05CA008706, 2006-

Ohio-4531, ¶ 11 (“[I]n order to show that a defendant violated R.C. 2903.211, the State must

show that the defendant engaged in conduct that he knew would probably cause the complainant

to believe that defendant would harm her or that he knew would ‘probably cause’ the
                                                  4


complainant to suffer from mental distress.”). But see Holloway v. Parker, 3d Dist. Marion No.

9-12-50, 2013-Ohio-1940, ¶ 23, fn.5 (noting that a majority of appellate districts have concluded

that the statute requires “only that the victim believes the stalker would cause mental

distress[.]”). “Physical harm” includes “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. 2901.01(A)(3).

        {¶8}    The conduct at issue in this case consists entirely of electronic communications in

the form of Facebook posts and text messages. Two facts complicate the matter. First, it appears

from the exhibits submitted at the hearing that the parties communicated interchangeably across

multiple electronic platforms so that, for example, they might be sending text messages and

Facebook messages to one another during the same time period while also referencing posts on

various Facebook pages that were not introduced at the hearing. Second, their communications

refer constantly to other people with whom, it appears, A.S. and P.F. were caught in an

unfortunate web of gossip, finger pointing, and back biting. Again, the communications between

A.S. and P.F. and these other individuals were not part of the record. Nonetheless, the evidence

that was presented at the hearing does not support the conclusion that this is the exceptional case

in which the trier of fact lost its way.

        {¶9}    A.S. testified that after her relationship with P.F. deteriorated, she “started getting

text messages, threatening text messages, Facebook harassment, stuff like that” from P.F. A.S.

provided the trial court with copies of some relevant text messages and Facebook

communication. These included a series of text messages in which P.F. wrote, “You need to call

me now because this is about to blow up in your face[.] * * * You BETTER CALL ME OR

YOUR PUBLIC RECORD WILL BE SHARED.” P.F. also wrote, “[I]t’s a f---ing promise.

Don’t act like an angel when you just want to rule over everyone. * * * You are GAME OVER
                                                5


if you think this is acceptable” and “Get ready for a s—t storm * * * You have no idea what you

started now.” In some of the final text messages, P.F. commented on her access to A.S.’s

address and wrote:

       Come on, princess, we need addresses, and so does your parole officer, or
       probation officer, I am done with this * * *. This is like an old fashioned show
       down – you and [a third person] against me and about ten others. So do you want
       to [b]e alone at your * * * address or give us [her] address too. At least be fair
       and go down with your friends.

The nature of these messages is to communicate a threat, and the language they employ

demonstrates that P.F. communicated with knowledge of the effect that her words would

probably have on A.S. As a consequence of these messages, A.S. feared for her physical

wellbeing and that of her family. She testified that because of these messages, “My kids are

afraid to let out the dogs and all that. We would like to move because they are afraid to go

outside because [P.F.] has our address now.” Although A.S. denied that P.F. had “physically

threatened” her, her response to the magistrate’s questions in context indicates that A.S. may

have been making a distinction between threats made by text message and those conveyed in

person. She also testified that P.F. had threatened to reveal her criminal record to her employer

and that she believed P.F. had followed through on the threat, leading to the loss of her

employment. For this reason, she said, she believed that P.F. would follow through on any other

threats that she made.

       {¶10} P.F. provided additional detail about the parties’ relationship, testifying that until

around January 12, 2013, the two were “really good friends” who worked together on an animal

rescue project. P.F. described the deterioration of the friendship and provided a record of the

text messages and Facebook communications between the two from November 2012 through

January 2013. When her testimony and exhibits are considered together, it appears that an initial
                                                6


dispute between P.F. and A.S. occurred around January 11, 2013. At that time, they disagreed

about the role that another woman should play in their online rescue group. Despite some

apparent efforts to resolve the conflict, the two cut off most of their communication and the

hostility between them deepened.      According to P.F., A.S. began posting comments to a

Facebook group page that were hurtful and accusatory toward her, and it appears that those

comments furthered a division of loyalties among the parties’ mutual online acquaintances.

While these comments are not in the record, they are significant to the timeline of events in this

case because it appears that they precipitated and were intermingled with the text messages that

A.S. submitted as evidence of P.F.’s threatening behavior. Nonetheless, P.F. did not offer any

alternative explanation for the threatening text messages that A.S. submitted in support of her

petition.

        {¶11} P.F. has argued that the record demonstrates that someone else notified A.S.’s

employer that she had a criminal record, which led to the termination of A.S.’s employment. A

third party, who testified that she was not affiliated with P.F., did testify and accepted

responsibility for those actions. The fact that P.F. did not contact A.S.’s employer, however,

does not change the character of the communications that are also in the record.

        {¶12} This Court has thoroughly reviewed the record, including the transcript of the

magistrate’s hearing and the copies of all of the parties’ electronic communications that were

considered by the trial court. We are mindful that although our review requires us to act as the

“thirteenth juror,” we do so from a written record and without the benefit of live testimony from

which the trier of fact can assess the credibility of the witnesses. As such, this Court “must

always be mindful of the presumption in favor of the finder of fact” and “‘[i]f the evidence is

susceptible of more than one construction, [this Court] is bound to give it that interpretation
                                                   7


which is * * * most favorable to sustaining the verdict and judgment.’” (Internal citations

omitted.) Eastley, 2012-Ohio-2179, at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80 fn.3 (1984). We have weighed the evidence with reference to the inferences

that can be drawn from it and considered the credibility of the witnesses and, having done so, we

conclude that the weight of the evidence supports the conclusion that P.F. knowingly engaged in

a pattern of conduct that caused A.S. to believe that she would cause her physical harm. This is

not the “exceptional case” in which the weight of the evidence weighs heavily against the

judgment. See Martin, 20 Ohio App.3d at 175.

       {¶13} P.F.’s second argument is that the trial court erred by restraining her from conduct

with A.S.’s children. “Because R.C. 3113.31 expressly authorizes the courts to craft protection

orders that are tailored to the particular circumstances, it follows that the trial court has discretion

in establishing the scope of a protection order, and that judgment ought not be disturbed absent

an abuse of discretion.” Abuhamda-Sliman v. Sliman, 161 Ohio App.3d 541, 2005-Ohio-2836, ¶

9 (8th Dist.2005). When applying the abuse of discretion standard, an appellate court does not

substitute its own judgment for that of the trial court and considers whether the trial court’s

action was arbitrary, unreasonable, or unconscionable. Sinclair v. Sinclair, 182 Ohio App.3d

691, 2009-Ohio-3106, ¶ 7 (4th Dist.2009), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). See also R.C., 2013-Ohio-4265, at ¶ 15.

       {¶14} In this case, P.F.’s threats were directed toward A.S., but with the connotation that

the threats may be connected to A.S.’s home. A.S. testified that her children were afraid to go

outdoors after the threats because P.F. knew where they lived. Given the nature and tone of the

threats and P.F.’s emphasis on the fact that she knew where to find A.S., it was not an abuse of

discretion for the trial court to include A.S.’s children within the scope of the protection order.
                                                 8


       {¶15} The stalking civil protection order is not against the manifest weight of the

evidence, and the scope of the protection order does not reflect an abuse of discretion. P.F.’s

assignment of error is, therefore, overruled.

                                                III.

       {¶16} P.F.’s assignment of error is overruled, and the judgment of the trial court is

affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
                                                 9


HENSAL, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶17} I respectfully dissent. P.F. argues that there was insufficient evidence to show

that P.F. knowingly caused A.S. to believe that she would cause her physical harm. I agree.

       {¶18} As an initial matter, I would recognize this case as the unfortunate result of the

role that social media has come to play in the lives of people who have embraced the ease of

publically posting inappropriate comments. Nevertheless, regardless of the impropriety and

distasteful nature of the comments at issue here, I do not believe that P.F.’s comments rose to the

level of menacing by stalking.

       {¶19} As the majority indicates, before a civil protection order may issue, the petitioner

must prove all the essential elements of menacing by stalking. In this case, A.S. failed to do so.

Although the magistrate questioned A.S. about whether P.F. had threatened her with physical

harm, A.S. replied that she had not. A.S. explained that P.F. had merely threatened her job.

Moreover, A.S. did not testify that she suffered any mental distress. In addition, while she

asserted that her children were afraid to go outside, she did not testify that P.F. had made any

threats to her children or their safety. Based on the record, it appears that her children were only

aware of P.F.’s communications because A.S. told them about them. Finally, the text messages

cited by the majority did not indicate any threats of physical violence by P.F. against A.S. When

read in context, they clearly referred to P.F.’s attempts to obtain addresses for a libel lawsuit

against A.S. and others. Under these circumstances, I would conclude that A.S. failed to present

evidence on each essential element of menacing by stalking on which the petition for a civil

protection order was premised. Accordingly, I would reverse the trial court’s judgment.
                                          10



APPEARANCES:

DANIEL J. GIBBONS, Attorney at Law, for Appellant.

A. S., pro se, Appellee.
