      [Cite as Griga v. DiBenedetto, 2012-Ohio-6097.]

                       IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




THOMAS GRIGA,                                  :        APPEAL NO. C-120300
                                                        TRIAL NO. SK-1101329
     Petitioner-Appellee,                      :

     vs.                                       :            O P I N I O N.

RICH DIBENEDETTO,                              :

    Respondent-Appellant.                      :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appelaed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded.

Date of Judgment Entry on Appeal: December 26, 2012


Thomas Griga, pro se,

The Farrish Law Firm and Michaela M. Stagnaro, for Respondent-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



HILDEBRANDT, Presiding Judge.

         {¶1}    Petitioner-appellee Thomas Griga moved the trial court for a Civil

Stalking Protection Order (“CSPO”) under R.C. 2903.214, requesting that the court

restrain respondent-appellant Rich DiBenedetto from having contact with Griga, and

with Griga’s wife, his two sons, his daughter, and his parents. The trial court granted

the CSPO, naming everyone as protected persons except for Griga’s parents. This

appeal ensued.

         {¶2}    In his first assignment of error, DiBenedetto contends that the trial

court erred in granting the CSPO because it was based on insufficient evidence and

was against the manifest weight of the evidence. This argument has no merit.

                           Elements of R.C. 2903.214

         {¶3}    Issuance of a protection order under R.C. 2903.214 requires the

petitioner to establish, by a preponderance of the evidence, that the respondent

engaged in conduct constituting menacing by stalking. R.C. 2903.214(C)(1). See

Lindsay v. Jackson, 1st Dist. No. C-990786, 2000 Ohio App. LEXIS 4043 (Sept. 8,

2000).     The menacing-by-stalking statute provides, in relevant part, 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.” R.C. 2903.211(A)(1).

         {¶4}    In this case, DiBenedetto specifically contends that Griga failed to

prove the “mental distress” element of R.C. 2903.211(A)(1). To address this

argument, we must first determine what the statue requires in this regard.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



              Belief of Mental Distress or Actual Mental Distress?

       {¶5}    There is a split among the appellate districts concerning whether, to

establish a violation of R.C. 2903.211(A)(1) based on “mental distress,” it is sufficient

to show that the victim believed that the offender would cause mental distress, or

whether the offender must have actually caused mental distress.

       {¶6}    The majority of appellate districts have found that causing a victim to

believe that the offender will cause mental distress is sufficient. See State v. Hart,

12th Dist. No. CA2008-06-079, 2009-Ohio-997, ¶ 31; Bloom v. Macbeth, 5th Dist.

No. 2007-COA-050, 2008-Ohio-4564, ¶ 11; State v. Horsley, 10th Dist. No. 05AP-

350, 2006-Ohio-1208, ¶ 47; Dayton v. Davis, 136 Ohio App.3d 26, 32, 735 N.E.2d

939 (2d Dist.1999); Ensley v. Glover, 6th Dist. No. L-11-1026, 2012-Ohio-4487, ¶ 13;

Retterer v. Little, 3d Dist. No. 9-11-23, 2012-Ohio-131, ¶ 39.

       {¶7}     In contrast, the Seventh Appellate District has held that the

menacing-by-stalking statute requires proof of actual mental distress. Caban v.

Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034; see also Strausser v. White, 8th

Dist. No. 92091, 2009-Ohio-3597, ¶ 34; State v. Payne, 178 Ohio App.3d 617, 2008-

Ohio-5447, 899 N.E.2d 1011 (9th Dist.); Smith v. Wunsch, 162 Ohio App.3d 21,

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

       {¶8}    This district has not definitively ruled on the issue. See Jackson, 1st

Dist. No. C-990786, 2000 Ohio App. LEXIS 4043, *13; State v. Dario, 106 Ohio

App.3d. 232, 238, 665 N.E.2d 759 (1st Dist.1995). For the following reasons, we

adhere to the majority view.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



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

       {¶9}      The cases cited above in support of each view appear to rely either

explicitly or implicitly on the plain meaning of R.C. 2903.211(A)(1). We acknowledge

that where the plain meaning of a statute is clear on its face, the statute must be

applied as written and not construed. Meeks v. Papadopulos, 62 Ohio St.2d 187, 190,

404 N.E.2d 159 (1980), citing Sears v. Weimer 143 Ohio St. 312, 55 N.E.2d 413

(1944). In this case, we find that the meaning of the statute is not apparent on its

face. It is unclear if the phrase “knowingly cause another person to believe” relates to

causing both “physical harm” and causing “mental distress,” or whether this phrase

only modifies “physical harm.” See R.C. 2903.211(A)(1). Since the statute is subject

to more than one interpretation, we must turn to rules of statutory construction for

guidance.

       {¶10}     Our paramount concern in construing any statute is to discern

legislative intent. Carter v. Youngstown, 146 Ohio St. 203, 65 N.E.2d 63 (1946),

paragraph one of the syllabus. Here, we find that a “common sense reading” of R.C.

2903.211(A)(1)     along    with   the   definition   of   “mental   distress”   in   R.C.

2903.211(D)(2)(a) and (b), supports the majority view. See State v. Buehler, 113

Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, paragraph one of the syllabus (a

careful common sense reading of a statute in conjunction with related code sections

may be illustrative of legislative intent).

                       A Belief of Mental Distress is Sufficient

       {¶11}     R.C. 2903.211(A)(1) provides, “[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.”




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                     OHIO FIRST DISTRICT COURT OF APPEALS



“Mental distress” is “any mental illness or condition that involves some temporary

substantial incapacity,” or “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,

psychological treatment, or other mental health services.” R.C. 2903.211(D)(2)(a)

and (b).

       {¶12}   From a reading of the first part of R.C. 2903.211(A)(1), it is evident

that the legislature clearly intended to provide protection to those victims believing

that an offender will cause physical harm. We can find no logical reason that the

legislature would not have intended the same protection to those believing that an

offender will cause mental distress. The minority view requires actual harm to have

occurred before a violation based on “mental distress” can be established. In light of

the legislature’s clear intent to stop harm before it occurs, combined with the

somewhat high standard that must be met to show “mental distress,” we find that a

“common sense” reading supports the majority view.

       {¶13}   We therefore hold that, where mental distress is alleged under R.C.

2903.211(A)(1), it is sufficient to demonstrate that an offender, by engaging in a

pattern of conduct, knowingly caused the victim to believe that the offender would

cause the victim mental distress. In the context of a CSPO in particular, our holding

comports with this court’s prior acknowledgement that a CSPO is “an important part

of the overall legislative scheme that is designed to allow the police and the courts to

act before a victim is harmed by a stalker.” Jackson, 1st Dist. No. C-990786, 2000

Ohio App. LEXIS 4043, *5.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



                                       Griga’s CSPO

       {¶14}   Turning to the merits of Griga’s first assignment of error, we find that

the trial court’s judgment is not against the weight or the sufficiency of the evidence.

       {¶15}   We review the trial court’s decision for an abuse of discretion. Parrish

v. Parrish, 95 Ohio St.3d 1201, 1204, 2002-Ohio-1623, 765 N.E.2d 359; Gutherie v.

Long 10th Dist. No. 04AP-913, 2005-Ohio-1541, ¶ 9. An abuse of discretion implies

that the decision of the trial court was unreasonable, arbitrary, or unconscionable.

See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶16}   To determine whether the “mental distress” element has been met, a

trial court may rely on its own knowledge and experience. Wunsch, 162 Ohio App.3d

21, 2005-Ohio-3498, 832 N.E.2d 757, at ¶ 18; see also Horsely, 10th Dist No. 05AP-

350, 2006-Ohio-1208, at ¶ 46. Here, the trial court determined that a CSPO should

issue based on telephone calls from DiBenedetto to Griga, statements that

DiBenedetto made to Girga’s father, and visits and telephone calls that DiBenedetto

made to Griga’s place of employment. Each of these incidents revolved around an

apparently highly acrimonious relationship between Griga and Griga’s ex-wife, who

was DiBenedetto’s girlfriend. One of the telephone calls DiBenedetto made to Griga

included a threat to financially ruin Griga by running up legal costs in a child-

custody dispute between Griga and his ex-wife.          DiBenedetto later approached

Griga’s father and informed him that he knew where Griga worked and “who he

reports to,” and that he would break Griga’s back both “physically and financially.”

Finally, DiBenedetto appeared at Griga’s place of employment, and also made

telephone calls to Griga’s employer attempting to ascertain Griga’s whereabouts.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17}   In light of DiBenedetto’s multiple threats to financially ruin Griga,

followed by his appearance at Griga’s workplace, we hold that there was sufficient

evidence to support the trial court’s judgment that DiBenedetto had engaged in a

pattern of conduct that knowingly caused Griga to believe that DiBenedetto would

cause him “mental distress.” See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, 972 N.E.2d 517; State v. Thompkins, 78 Ohio St.3d 380, 386-87, 678

N.E.2d 541 (1997). This argument therefore has no merit.

       {¶18}   DiBenedetto next argues that the trial court’s judgment was against

the manifest weight of the evidence. At the CSPO hearing, DiBenedetto offered

explanations for his conduct and, in some instances, testified in direct contravention

to the testimony of Griga’s witnesses. DiBenedetto now essentially claims that the

trial court should have believed his version of events over Griga’s. But the trial court

was entitled to make its own determination as to the credibility of the witnesses.

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984); State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1968), paragraph one of the syllabus.

And upon a review of the record, we find that the trial court did not err in this regard.

See Eastley, supra; Thompkins, supra.

       {¶19}   DiBenedetto’s first assignment of error is overruled.

                                Griga’s Family Members

       {¶20}   In his second assignment of error, DiBenedetto argues that the trial

court erred in granting a CSPO on behalf of a person not included in the definition of

household or family member as set forth in R.C. 2903.214. DiBenedetto is correct.

       {¶21}   Under R.C. 2903.214(C), a petitioner may seek relief for himself or

may seek relief on behalf of a “family or household member.” In the context of the




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                       OHIO FIRST DISTRICT COURT OF APPEALS



CSPO statute, “family or household member” is a legal term of art, as defined in R.C.

3113.31(A)(3).    See R.C. 2903.214(A)(3).     Under R.C. 3113.31(A)(3), Griga was

required to prove that each person that he had claimed as a “family member” lived or

had lived with him. And while we appreciate that Griga’s wife and children most

likely did live with him, Griga presented no evidence to this effect. He therefore

failed to establish that his wife and children met the legal definition of “family

member.” See Guthrie, 10th Dist. No. 04AP-913, 2005-Ohio-1541, at ¶ 8.

       {¶22}     Griga also failed to present evidence that DiBenedetto had engaged in

conduct constituting menacing-by-stalking as it pertained to Griga’s wife and

children. See Luikart v. Shumate, 3d Dist. No. 9-02-69, 2003-Ohio-2130, ¶ 11. We

therefore sustain DiBenedetto’s second assignment of error.

                                     Conclusion

       {¶23}     The judgment of the trial court is reversed in part, and this cause is

remanded with instructions to the trial court to remove Griga’s wife and children as

“protected persons” under the CSPO. In all other respects, the trial court’s judgment

is affirmed.

                     Judgment affirmed in part, reversed in part, and cause remanded.


HENDON and DINKELACKER, JJ., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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