[Cite as Dunn v. Clark, 2016-Ohio-641.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          WARREN COUNTY




CRAIG DUNN,                                     :

        Petitioner-Appellee,                    :      CASE NO. CA2015-06-055

                                                :             OPINION
   - vs -                                                      2/22/2016
                                                :

ANDREW CLARK,                                   :

        Respondent-Appellant.                   :



         CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                             Case No. 15 CS 3069



Kirby, Thomas & Brandenburg, L.P.A., Brian F. Leurck, 24 Remick Blvd., Springboro, Ohio
45066, for petitioner-appellee

Staton Fischer & Conboy, LLP, James C. Staton, 5613 Brandt Pike, Huber Heights, Ohio
45424, for respondent-appellant



        RINGLAND, J.

        {¶ 1} Respondent-appellant, Andrew Clark, appeals the issuance of a civil stalking

protection order in favor of petitioner-appellee, Craig Dunn, by the Warren County Court of

Common Pleas. For the reasons outlined below, we affirm.

        {¶ 2} The protection order in the present matter was borne out of a "love triangle"

between Clark, Clark's ex-wife, and Dunn. Dunn began dating Clark's ex-wife in 2014. On at
                                                                       Warren CA2015-06-055

least two occasions, Clark told his ex-wife he was going to kill Dunn. The first threat, made in

February 2015, consisted of a general statement about killing Dunn ("the February threat").

Clark's ex-wife told Dunn of the threat, but refused to support him in calling the police. As a

result, the couple broke up. Clark and his ex-wife rekindled their romance, but the reunion

was brief. The ex-wife resumed her relationship with Dunn sometime thereafter.

       {¶ 3} The second threat, conveyed by Clark to his ex-wife on April 12, 2015, involved

more detail ("the April threat"). Clark contacted his ex-wife while she was at an airport in

Detroit on her way to visit Dunn, who was on deployment in New York. Clark stated that

Dunn would be "dead in a month," that he knew Dunn's address, and Dunn would know how

serious Clark was in two days. Clark told his ex-wife that he was going to visit Dunn's house

and shoot Dunn in the head as he was sitting in his car getting ready to leave for work. Then,

according to Clark, he would shoot himself. Believing he sounded serious, Clark's ex-wife

contacted the police.

       {¶ 4} On May 4, 2015, Dunn filed a petition seeking a civil stalking protection order

against Clark. The magistrate issued an ex parte protection order and set the matter for a full

hearing. Following the hearing, the magistrate granted Dunn's petition for a civil stalking

protection order. The trial court adopted the magistrate's decision, and this appeal followed.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE BY GRANTING

A CIVIL PROTECTION ORDER CONTRARY TO THE MANIFEST WEIGHT OF THE

EVIDENCE.

       {¶ 7} Clark contends that the trial court's decision granting the civil stalking protection

order was against the manifest weight of the evidence. Specifically, Clark challenges the trial

court's finding that the two indirect threats, made two months apart, constituted a "pattern of

conduct" within the meaning of the menacing by stalking statute. Clark also maintains that
                                               -2-
                                                                        Warren CA2015-06-055

the trial court erred in finding he knew or should have known these comments would cause

Dunn to fear he would suffer physical harm or mental distress.

       {¶ 8} The standard of review for a manifest weight challenge in a civil case is the

same as that applied to a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, ¶ 17. Manifest weight of the evidence contemplates whether the greater amount

of credible evidence presented at trial supports one side of an issue over another. Id. at ¶

12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. Determinations

regarding the weight of the evidence and the credibility of the witnesses typically lie within the

purview of the trier of fact. State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-

911, ¶ 26. In resolving conflicts, a reviewing court assesses whether the trier of fact clearly

lost its way and created such a manifest miscarriage of justice that the verdict must be

overturned and a new trial ordered. Thompkins at 387.

       {¶ 9} With this standard in mind, we turn to the propriety of the trial court's decision

granting the civil stalking protection order in the present matter. In accordance with R.C.

2903.214(C)(1), a petitioner may obtain a protection order against a respondent who

engages in behavior that constitutes menacing by stalking. The crime of "menacing by

stalking" is proscribed by R.C. 2903.211, which 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." R.C.

2903.211(A)(1). In order to grant a civil stalking protection order, the trial court must find that

the elements of R.C. 2903.214 were proven by a preponderance of the evidence. Wulf v.

Opp, 12th Dist. Clermont No. CA2014-10-074, 2015-Ohio-3285, ¶ 8.                   Essentially, a

preponderance of the evidence signifies that the existence of a contested fact is more

probable than its nonexistence. Id.

       {¶ 10} The elements of R.C. 2903.211(A)(1) at issue in the case at bar are statutorily
                                                -3-
                                                                      Warren CA2015-06-055

defined. A "pattern of conduct" connotes "two or more actions or incidents closely related in

time[.]" R.C. 2903.211(D)(1). A perpetrator acts "knowingly" when he or she is aware that

their conduct will probably cause a certain result. R.C. 2901.22(B). Finally, the phrase

"mental distress" contemplates a mental illness or condition that either causes temporary

substantial incapacity or would require treatment by a mental health professional, whether or

not help was actually sought. R.C. 2903.211(D)(2). This court has held that the petitioner

need not actually suffer physical harm or mental distress. State v. Hart, 12th Dist. Warren

No. CA2008-06-079, 2009-Ohio-997, ¶ 31. Rather, the petitioner's belief that the respondent

will cause him physical harm or mental distress is sufficient. Id.

       {¶ 11} Clark admits to the existence of the April threat only, which is insufficient to

constitute a "pattern of conduct" within the meaning of R.C. 2903.211(D)(1). He insists that

any other alleged threats were taken out of context and made to look more nefarious than

they were in reality. Admittedly, the testimony describing the February threat is sparse.

However, the testimony establishes that the February threat was serious enough that Dunn

wanted to contact the police. When Clark's ex-wife refused to back him in pursuing legal

action, the couple broke off their relationship. These events support the conclusion that the

threat was indeed made and taken seriously.

       {¶ 12} As stated, a "pattern of conduct" involves two incidents "closely related in time."

R.C. 2903.211(D)(1). In deciphering whether two or more incidents are "closely related in

time," the trier of fact must examine the totality of the circumstances in each case.

Middletown v. Jones, 167 Ohio App.3d 679, 2006-Ohio-3465, ¶ 10-11 (12th Dist.). The two

threats upon which the magistrate primarily based her decision to issue the protection order

occurred approximately two months apart. This time span is not so remote as to defeat the

existence of a "pattern of conduct." Kruszynski v. Kruszynski, 5th Dist. Fairfield No. 12-CA-

133, 2013-Ohio-3355, ¶ 20.
                                              -4-
                                                                     Warren CA2015-06-055

       {¶ 13} Furthermore, the record contains references to other menacing statements

made by Clark. According to his ex-wife's testimony, Clark threatened to kill Dunn in multiple

emails she received from him. She also testified that, during a phone conversation, Clark

told her he envisaged the future newspaper headline "Former Dayton Cop Kills Airforce

Member," indicating himself and Dunn. These additional hostile statements bolster the

conclusion that the two primary threats cited by the magistrate constitute a pattern of conduct

within the meaning of the statute. Jones at ¶ 9-11.

       {¶ 14} Next, Clark disputes knowing that his ex-wife would relay the threats back to

Dunn. The fact that Clark did not issue the threats directly to Dunn does not defeat the mens

rea element of the offense. The plain language of R.C. 2903.211 does not require that the

threats be made directly to the victim. Indisputably, Clark was aware Dunn was in an intimate

relationship with Clark's ex-wife. It can thus be inferred that he knew or reasonably should

have known she would tell her boyfriend about threats against his life. See State v.

McWilliams, 5th Dist. Stark No. 2011-CA-00051, 2012-Ohio-663, ¶ 23.              Furthermore,

according to testimony proffered by the ex-wife, Clark verbally noted that she and Dunn had

broken up the last time he threatened to harm Dunn. This evinces Clark's knowledge of the

open line of communication, and that any threats he conveyed to his ex-wife would be

relayed to Dunn.

       {¶ 15} Finally, Clark contends that his alleged threats were insufficient to cause Dunn

to believe Clark would cause him physical harm or mental distress. Clark made multiple

references to killing Dunn. Clark's ex-wife, who had known him for 13 years, believed he was

capable of hurting Dunn and sounded serious about his intentions to do so. The detail in

which Clark described the April threat indicates that he had given the matter some thought

and may have been formulating a plan. Dunn testified that, after hearing this threat, he felt

compelled to scan the street every morning before exiting the house. He was late to work
                                              -5-
                                                                       Warren CA2015-06-055

one day because an unknown car was parked in front of his house, and he was too afraid to

leave until the car departed. This behavior accords with a finding that Dunn feared Clark

would cause him physical harm or mental distress.

       {¶ 16} Clark emphatically questions the credibility of the testimony proffered by his ex-

wife and Dunn in support of the protection order. Both parties proceeded pro se at the

evidentiary hearing. It is clear that Clark does not get along with his ex-wife or Dunn. The

transcript of the hearing is rife with quarreling and attempts to raise injurious issues that were

collateral to the immediate proceeding. Clark portrayed his ex-wife as a serial cheater and

consummate liar. He expressed his concern that her true motivation in testifying against him

was to hinder his attempt to pursue increased custody over the couple's two children in

another proceeding. We emphasize that the magistrate was in the best position to address

the credibility of the witnesses. As the Ohio Supreme Court observed:

              The fact-finder * * * occupies a superior position in determining
              credibility. The fact-finder can hear and see as well as observe
              the body language, evaluate voice inflections, observe hand
              gestures, perceive the interplay between the witness and the
              examiner, and watch the witness's reaction to exhibits and the
              like. Determining credibility from a sterile transcript is a
              herculean endeavor. A reviewing court must, therefore, accord
              due deference to the credibility determinations made by the fact-
              finder.

State v. Thompson, 127 Ohio App.3d 511, 529 (8th Dist.1998).

       {¶ 17} After thoroughly reviewing the record, we do not find that the magistrate lost her

way in resolving any credibility issues and created such a manifest miscarriage of justice that

the civil stalking protection order must be overturned. Thompkins, 78 Ohio St.3d at 387. We

hold that the trial court's decision granting Dunn a civil stalking protection order against Clark

was not against the manifest weight of the evidence. There was sufficient credible evidence

to prove by a preponderance of the evidence that Dunn was entitled to relief. Fouch v.

Pennington, 12th Dist. Clermont No. CA2011-10-075, 2012-Ohio-3536, ¶ 9. Accordingly,
                                               -6-
                                                      Warren CA2015-06-055

Clark's sole assignment of error is overruled.

      {¶ 18} Judgment affirmed.


      M. POWELL, P.J., and HENDRICKSON, J., concur.




                                            -7-
