[Cite as Smith v. Burroughs, 2010-Ohio-4806.]




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




ALYSHA R. SMITH,

        PETITIONER-APPELLEE,                           CASE NO. 16-09-23

        v.

RICHARD A. BURROUGHS, JR.,
                                                       OPINION
        RESPONDENT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Domestic Relations Division
                            Trial Court No. 09 DR 87

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                           Date of Decision: October 4, 2010




APPEARANCES:

        Steven M. Powell for Appellant

        Alysha R. Smith, Appellee
Case No. 16-09-23


ROGERS, J.

       {¶1} Respondent-Appellant, Richard A. Burroughs, Jr., appeals from the

judgment of the Court of Common Pleas of Wyandot County, Domestic Relations

Division, overruling Richard’s objection to the Magistrate’s order granting

Petitioner-Appellee, Alysha Smith, a domestic violence civil protection order

(“CPO”) against him pursuant to R.C. 3113.31. On appeal, Richard argues that

the trial court erred in overruling his objection to the Magistrate’s grant of a CPO

where insufficient evidence was presented to establish that he threatened

“imminent physical harm” pursuant to R.C. 2919.25(C). Based on the following,

we affirm in part, and reverse in part, the judgment of the trial court.

       {¶2} On August 20, 2009, Alysha filed a request for, and was granted, an

ex parte CPO. The CPO was granted on the basis of a same-day incident during

which it was alleged that Richard, Alysha’s live-in boyfriend, threatened to kill her

if she left him. Alysha’s three children were also included in the ex parte CPO.

       {¶3} On August 26, 2009, the case proceeded to a full hearing on the

CPO. At the hearing, both Alysha and Richard represented themselves pro se and

testified on their own behalves. Additionally, Deputy Richard Kesler from the

Wyandot County Sherriff’s Office testified, as well as Richard’s ex-wife and

Alysha’s ex-husband. The following was deduced from the testimony presented.

Alysha and Richard were involved in a long-term relationship and lived together



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as a couple in Carey, Ohio. Both Alysha and Richard had school-aged children

from prior relationships who attended the same school in Carey. During the

month of August 2009, arguments between the couple became more frequent.

Alysha eventually told Richard that she wanted to leave him and end the

relationship.

       {¶4} On the morning of August 20, 2009, Alysha, who worked the third

shift, was lying down attempting to sleep when Richard approached her and asked

her to reconsider leaving him. Alysha responded that she would not reconsider her

decision because she had promised her children she would leave him, as her

children “were scared to come home.” (CPO Hearing Tr., p. 25). An argument

subsequently ensued between the couple. Alysha then attempted to remove herself

from the situation by going upstairs into another bedroom. Alysha testified that, at

that moment, Richard, a martial arts expert, standing six feet and three inches tall,

walked toward Alysha with his hands behind his back, leaned down until he was

approximately two inches from her, and stated the following: “You’re not going to

leave me. The only way that you are going to leave this house and going to leave

me is going to be in a body bag.” (Id. at pp. 25-26). However, Richard testified

that he did not make that statement.

       {¶5} Alysha testified that, for the next ten minutes, she negotiated with

Richard to let her go upstairs into another bedroom so that she could sleep, and



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that both she and Richard went upstairs to her daughter’s bedroom.               The

conversation regarding the state of their relationship continued upstairs, and

Alysha asked to be left alone so that she could sleep. Alysha further testified that

Richard told her that he could not trust her and that he could not leave her alone

because, if he did, she would call someone and he would never see her again.

Alysha stated that she continued to negotiate with Richard telling him that she just

wanted to sleep. Richard remained in the bedroom and watched Alysha as she

tried to sleep. Alysha testified that she convinced Richard to let her call her

children because they were expecting her call, and Richard remained in the

bedroom while Alysha made the call.

       {¶6} Alysha’s ex-husband, Jason Clauss, answered her phone call, and

Alysha pretended that she was talking to her children on the other end. During the

phone call, Richard left the room, and Alysha closed the door. Jason testified that

Alysha asked him unusual questions, such as what he was eating and if he watched

any movies; that Alysha also told him that Richard threatened to kill her and she

thought it was serious; and, that she instructed him to call the police. After Alysha

hung up the phone, she locked the bedroom door and barricaded herself in the

room by placing a vanity in front of the door.

       {¶7} At this point, Richard had left the house and was standing in the

front lawn looking up at the second story window where Alysha was located.



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Richard yelled up to Alysha to tell her that he was going into town to run errands.

Alysha franticly called 911 and explained the situation to the operator.

       {¶8} Deputy Kesler responded to the call. He entered the residence and

found Alysha alone upstairs in the bedroom with the door still barricaded;

however, there was no indication that Richard attempted to force his way into the

room. Deputy Kesler convinced Alysha to come out of the room to speak with

him, and Alysha was very upset, crying and shaking. Alysha then described to

him what had just occurred, indicating that she thought Richard was going to kill

her.

       {¶9} Subsequently, Deputy Kesler located Richard not far from the

residence, placed him under arrest, and charged him with menacing, and Alysha

filed her petition for an ex parte CPO.

       {¶10} At no point during the CPO hearing was evidence presented that

Richard threatened Alysha’s children in any way, or that her children were present

at the time of the incident between her and Richard.

       {¶11} On September 1, 2009, the Magistrate granted the CPO, finding that

Richard’s statements placed Alysha in fear of imminent, serious physical harm.

The protection order was placed in effect for five years and required Richard to

have no contact with Alysha and to remain at least 500 feet from her. However,

the protection order permitted Richard to attend school functions that both his and



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Alysha’s children were participating in, but restricted Richard from approaching

or communicating with Alysha and/or her children while at these events.

Furthermore, the CPO also applied to Alysha’s three children.

       {¶12} Richard retained counsel and filed an objection to the Magistrate’s

order, asserting that the alleged threat was conditional and did not meet the

standard of threatening imminent, serious physical harm pursuant to R.C. 2919.25.

On October 22, 2009, the trial court overruled Richard’s objection, upholding the

Magistrate’s order and finding sufficient evidence that Richard threatened

imminent physical harm to Alysha.

       {¶13} It is from the trial court’s overruling of his objection to the

Magistrate’s order that Richard appeals, presenting the following assignment of

error for our review.

       THE TRIAL COURT ERRED IN ORDERING THE
       DOMESTIC VIOLENCE CPO BECAUSE ANY “ALLEGED”
       THREAT WAS CONDITIONED UPON THE APPELLEE
       ACTUALLY MOVING OUT AND LEAVING APPELLANT
       AT SOME POINT FOLLOWING ONE MONTH LATER, AND
       DOES NOT MEET THE STANDARD OF THREATENING
       “IMMINENT PHYSICAL HARM” PURSUANT TO ORC §
       2919.25(C).

       {¶14} The decision of whether to grant a CPO is within the sound

discretion of the trial court, and an appellate court will not reverse the trial court’s

decision absent an abuse of discretion. Brubaker v. Farr, 3d Dist. No. 13-05-32,

2006-Ohio-2001, ¶16. An abuse of discretion “connotes more than an error of law


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or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

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

applying the abuse of discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Id.

       {¶15} A trial court may properly grant a CPO where it finds that the

petitioner has shown by a preponderance of the evidence that the petitioner or the

petitioner’s family or household members are in danger of domestic violence.

Felton v. Felton, 79 Ohio St.3d 34, 1997-Ohio-302, paragraph two of syllabus.

“Domestic violence” includes placing a family or household member “* * * by

threat of force in fear of imminent, serious physical harm or committing a

violation of section 2903.211 [2903.21.1] or 2911.211 [2911.21.1] of the Revised

Code[.]” R.C. 3113.31(A)(1)(b). Furthermore, “family or household member” is

defined as follows:

       (a) Any of the following who is residing with or has resided
       with the respondent:

       (i) A spouse, a person living as a spouse, or a former spouse of
       the respondent;

       (ii) A parent, a foster parent, or a child of the respondent, or
       another person related by consanguinity or affinity to the
       respondent;

       (iii) A parent or a child of a spouse, person living as a spouse, or
       former spouse of the respondent, or another person related by
       consanguinity or affinity to a spouse, person living as a spouse,
       or former spouse of the respondent.


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       (b) The natural parent of any child of whom the respondent is
       the other natural parent or is the putative other natural parent.

R.C. 3113.31(A)(3)(a)(i)-(iii),(b).   Therefore, the focus of our review is on

whether there was credible evidence for the trier of fact to find by a preponderance

of the evidence that Richard’s statements placed Alysha in fear of imminent,

serious physical harm.

       {¶16} In the present case, the element of whether Alysha is a household

member is not in dispute. However, Richard contends that his actions did not

constitute domestic violence within the purview of the statute to warrant the

issuance of a CPO. In determining whether an act of domestic violence has been

committed by threat of force, ‘“the critical inquiry under [R.C. 3113.31] ‘is

whether a reasonable person would be placed in fear of imminent (in the sense of

unconditional, non-contingent), serious physical harm.”” Fleckner v. Fleckner,

177 Ohio App.3d 706, 2008-Ohio-4000, ¶20, quoting Maccabee v. Maccabee 10th

Dist. No. 98AP-1213, 1999 WL 430943, quoting Strong v. Bauman, 2d Dist. Nos.

17256, 17414, 1999 WL 317432.          The inquiry involves both subjective and

objective elements. Williamson v. Williamson, 180 Ohio App.3d 260, 2008-Ohio-

6718, ¶47, citing Strong v. Bauman, 2d Dist. Nos. 17256, 17414, 1999 WL

317432.

       {¶17} Based on the record before us, Alysha testified that she and Richard

were arguing when she attempted to end the discussion by leaving the room, and


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that Richard then advanced toward Alysha with his hands behind his back,

lowered his body until he was two inches from her, and made the following

statement: “You’re not going to leave me. The only way that you are going to

leave this house and going to leave me is going to be in a body bag.” (CPO

Hearing Tr., p. 25-26).

       {¶18} Alysha continued that Richard’s threat rendered her speechless. She

further testified that she gathered herself enough to negotiate with Richard to

allow her to go into an upstairs bedroom so that she could call her children; that

Richard remained in the room as she made the call; that her ex-husband, Jason,

answered her phone call; and, that she pretended to talk with her children while

Jason remained on the phone, until Richard left the room.

       {¶19} Jason testified that Alysha was acting extremely odd and out of

character by asking him unusual questions, such as what he was eating and if he

had watched any movies. Jason then testified to the following statements. “[S]he

whispered into the phone that [Richard] is threatening to kill her and she thinks

[he] was serious, she needed me to call the cops.” (Id. at p. 36).

       {¶20} Alysha further testified that she hung up the phone, barricaded

herself in the bedroom, and frantically called 911. The responding officer, Deputy

Kesler, testified that he found Alysha still barricaded in the bedroom when he

arrived. In describing her mental state, Deputy Kesler testified that Alysha was



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crying, shaking, and upset, making it difficult to interview her. Deputy Kesler

stated that Alysha repeated the threats that Richard had made to her and recounted

her attempts to keep calm, negotiate with Richard, and call for help.

       {¶21} Based on the testimony elicited at the hearing, it is clear that

sufficient evidence was presented indicating that a reasonable person would be in

fear of imminent, serious physical harm, and that Richard actually placed Alysha

in fear of imminent, serious physical harm. Not only does Richard’s statement to

Alysha evidence such a threat, but Alysha’s actions of barricading herself in the

room and calling for assistance, and her display of fear to Jason and Deputy Kesler

all indicate that Alysha was in fear of imminent physical harm. Although Richard

testified that he did not make the statement that Alysha was only going to leave in

a body bag, much of Alysha’s version of the events was corroborated by Richard,

and both Deputy Kesler’s and Jason’s testimony of Alysha’s statements to them

also matches her testimony.      Moreover, we are not persuaded by Richard’s

contention that any threat made to Alysha was not imminent because it was

conditioned on Alysha moving out and leaving Richard.             Imminent means

threatening to occur immediately or at any moment, see State v. Collie (1996), 108

Ohio App.3d 580, 583, and we find the record clearly demonstrates that sufficient

evidence existed to establish that Richard’s threat of death was imminent and

Alysha believed it could occur at any moment.



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       {¶22} Accordingly, we overrule Richard’s assignment of error.

       {¶23} Although we found there to be sufficient evidence demonstrating

that Richard placed Alysha in fear of imminent physical harm, we note that

Alysha’s children were also persons protected by the CPO. Accordingly, there

must also be sufficient evidence indicating that Richard’s threats of force placed

her children in fear of imminent physical harm.

       {¶24} However, upon our review of the record, we find no evidence was

presented indicating that Richard threatened Alysha’s children, or even that her

children were at the residence at the time of the incident. Although some evidence

indicated that the children did reside at least part time in the residence with Alysha

and Richard, suggesting that the children may have qualified under the definition

of family or household member pursuant to R.C. 3113.31(A)(3)(a)(i)-(iii), no

evidence was presented that they were threatened with imminent, serious physical

harm. Accordingly, because a trial court cannot include a family member in a CPO

when no direct evidence was presented indicating the family member was placed

in fear of imminent, serious physical harm, it was plain error for the trial court to

have included the children in the order when no evidence was even presented as to

the children.

       {¶25} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued in his assignment of error, but having found error



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prejudicial to the appellant in the trial court’s issuance of the CPO pertaining to

Alysha’s children, we affirm in part, and reverse in part, the judgment of the trial

court and remand for further proceedings consistent with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part and
                                                                Cause Remanded

WILLAMOWSKI, P.J., concurs.

/jlr



SHAW, J., DISSENTS:

       {¶26} I respectfully dissent from the decision of the majority to sua sponte

modify the CPO to exclude the children from the trial court’s order based on a

civil “plain error” doctrine.

       {¶27} The issue of the inclusion of the children in the CPO was not raised

by any of the parties on appeal. While the evidence does not indicate that the

minor children were actually present during the specific threats to Alysha, the

children did reside in the home where the threats took place and were commonly

exposed to Richard’s actions in general both at home and at school. It is also

important to note that the specific threats by Richard in this case referred to

Alysha’s attempts to leave him at any time now or in the future and thereby posed




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an ongoing threat of physical harm or death subject to implementation at any time

in the future when the children might be present.

       {¶28} As such, the trial court was well within its discretion to determine

that the children’s safety was put at risk by Richard’s threats against Alysha. This

determination by the trial court, again unobjected to by anyone, was entirely

reasonable based on the record. In any event, it does not constitute an abuse of

discretion, and certainly does not in any way pose a “challenge to the legitimacy

of the judicial process” as required to support any application of the so-called

“civil plain error doctrine” by this court. See, Ordean v. Ordean, 3d Dist No. 17-

06-15, 2007-Ohio-3979, ¶14, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116,

1997-Ohio-401, syllabus. Indeed, in my view, the decision of the majority on this

issue is itself an abuse of our judicial discretion.

       {¶29} I would affirm the decision of the trial court in its entirety.

/jlr




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