[Cite as Wilson v. Lyons, 2014-Ohio-1665.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




RITA WILSON                                  :      JUDGES:
                                             :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :      Hon. Sheila G. Farmer, J.
                                             :      Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
DEVAUNTE LYONS                               :      Case No. 13-CA-40
                                             :
        Defendant-Appellant                  :      OPINION




CHARACTER OF PROCEEDING:                            Apeal from the Court of Common
                                                    Pleas, Case No. 2013CV00326




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 11, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANGELA SEIMER                                       ELIZABETH N. GABA
124 West Main Street                                1231 East Broad Street
Suite 201                                           Columbus, OH 43205
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-40                                                       2

Farmer, J.

         {¶1}   On April 10, 2013, appellee, R.W., filed a petition for a civil sexually

oriented offense protection order, seeking to protect her daughter, L.W., from appellant,

DeVaunte Lyons. Both L.W. and appellant attended the same high school. The petition

alleged that appellant had engaged in repeated acts of improper physical and sexually

oriented contact with L.W. An ex parte hearing before a magistrate was held on April

10, 2013, and an order was granted on same date.

         {¶2}   On April 18, 2013, appellant signed a waiver for a hearing. A final order of

protection for five years was filed on April 22, 2013.       The order was signed by a

magistrate and approved and adopted by the trial court. No objections had ever been

filed.

         {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

         {¶4}   "THE TRIAL COURT IMPROPERLY DENIED APPELLANT A FULL AND

FAIR HEARING AS REQUIRED BY OHIO REVISED CODE SECTION 2903.214(D)(1),

DUE PROCESS, AND CIVIL RULE 65.1."

                                              II

         {¶5}   "THE TRIAL COURT ERRED IN GRANTING THE CIVIL SEXULLY

ORIENTED OFFENSE PROTECTION ORDER, AS SUCH WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE, AND THE EVIDENCE WAS INSUFFICIENT

TO SUPPORT THE AWARD OF A FINAL ORDER."
Fairfield County, Case No. 13-CA-40                                                     3


                                           III

      {¶6}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT PERMTTED THE SELECTIVE OR DISCRIMINATORY ENFORCEMENT OF

A QUASI-PENAL PROTECTION ORDER STATUTE, IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AS WELL AS THE DUE COURSE OF LAW PROVISION

AND ARTICLE I SECTION 2 OF THE OHIO CONSTITUTION.                      R.C. 2903.214 IS

UNCONSTITUTIONAL ON ITS FACE OR 'AS APPLIED' TO THIS RESPONDENT."

                                           IV

      {¶7}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT PERMITTED THE SELECTIVE OR DISCRIMINATORY ENFORCEMENT OF

A QUASI-PENAL PROTECTION ORDER STATUTE, IN VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AS WELL AS THE DUE COURSE OF LAW PROVISION

AND ARTICLE I SECTION 2 OF THE OHIO CONSTITUTION.                      R.C. 2903.214 IS

UNCONSTITUTIONAL IN THIS CASE AS ITS ENFORCEMENT VIOLATED R.C.

2152.02(C)(2); THIS CASE SHOULD HAVE BEEN FILED IN THE JUVENILE COURT."

                                            I

      {¶8}   Appellant claims he was denied the right to a full and fair hearing after the

issuance of the ex parte order filed April 10, 2013. We disagree.

      {¶9}   The ex parte order of protection was rendered on April 10, 2013, and the

final order was issued on April 22, 2013.        The specific language of the final order
Fairfield County, Case No. 13-CA-40                                                       4


includes a reference that no hearing was held: "No hearing was held - Respondent

waived appearance and agreed to issuance of order."

       {¶10} In the ex parte order, the trial court set a hearing for April 22, 2013 at 2:00

p.m.   A return of service filed April 15, 2013 reveals that appellant was personally

served the order.

       {¶11} The April 22, 2013 final order includes the following waiver, signed by

appellant on April 18, 2013:



                                         WAIVER

              I, DEVAUNTE LYONS, understand that I have the right to a full

       hearing on the Petition for Civil Stalking Protection Order or Civil Sexually

       Oriented offense Protection Order, and acknowledge each of the

       following:

              1. I waive the right to have a full hearing on this Protection Order;

              2. I waive the right to cross-examine witnesses and review

       evidence submitted in support of this Protection Order;

              3. I waive the right to present witnesses and evidence on my own

       behalf;

              4. I waive the right to request specific factual findings from the

       Court concerning the issuance of this Protection Order.

              I understand that based on the foregoing waivers a Protection

       Order will be entered against me.
Fairfield County, Case No. 13-CA-40                                                       5


       {¶12} Given the state of the record and appellant's waiver, we conclude the trial

court did not err in finding a hearing was unnecessary.

       {¶13} Assignment of Error I is denied.

                                              II

       {¶14} Appellant claims the issuance of the order was against the sufficiency and

manifest weight of the evidence. We disagree.

       {¶15} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial

"should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction." Martin at 175.

       {¶16} R.C. 2903.214(C)(1) sets forth the requirements for a petition seeking a

civil protection order and states the following in pertinent part:
Fairfield County, Case No. 13-CA-40                                                   6


              (C) A person may seek relief under this section for the person, or

       any parent or adult household member may seek relief under this section

       on behalf of any other family or household member, by filing a petition with

       the court. The petition shall contain or state all of the following:

              (1) An allegation that the respondent is eighteen years of age or

       older and engaged in a violation of section 2903.211 of the Revised Code

       against the person to be protected by the protection order or committed a

       sexually oriented offense against the person to be protected by the

       protection order, including a description of the nature and extent of the

       violation;

              ***

              (3) A request for relief under this section.



       {¶17} During the ex parte hearing before a magistrate, L.W. testified to the

following (T. at 5-6):



              A. During school, he has grabbed my breasts and my butt and even

       to the point where it's painful. He has rubbed his erect penis against my

       back through his pants, just walking behind me. He has also exposed

       himself to me on a school trip.

              Q. And when you say he, who are you referring to?

              A. DeVaunte.
Fairfield County, Case No. 13-CA-40                                                     7


              Q. And were any of these actions by Mr. DeVaunte welcomed by

       you?

              A. No.

              Q. And how did they make you feel?

              A. Uncomfortable.

              Q. And when you say Mr. Lyons exposed himself to you, did he

       expose his penis?

              A. Yes.

              Q. And where did that occur?

              A. On a school bus coming home - - coming back to the school

       from a field trip.

              Q. Okay. And are you afraid of Mr. Lyons?

              A. Yes.

              Q. And do you believe that without the Court's protection, Mr. Lyons

       will continue to engage in this unwanted behavior?

              A. Yes.



       {¶18} We find this testimony, coupled with the waiver, are sufficient to support

the granting of the civil sexually oriented offense protection order, and find no manifest

miscarriage of justice.

       {¶19} Assignment of Error II is denied.
Fairfield County, Case No. 13-CA-40                                                      8


                                           III

      {¶20} Appellant challenges the constitutionality of R.C. 2903.214 on its face and

as applied to him. We disagree.

      {¶21} Because these issues were not raised to the trial court, we find they are

not available for appeal. Civ.R. 53(D)(3)(b)(iv); Young v. Rogers, 12th Dist. Butler No.

CA2001-08-183, 2002-Ohio-5135.

      {¶22} Assignment of Error III is denied.

                                           IV

      {¶23} Appellant claims that based upon the evidence, the petition should have

been filed in juvenile court as he was a juvenile at the time of the allegations. We

disagree.

      {¶24} The petition for a civil sexually oriented offense protection order filed April

10, 2013, alleged the following:



             (b) For a civil sexually oriented offense protection order due to a

      sexually oriented offense, describe the acts of Respondent as fully as

      possible. You do not need to include any pattern of conduct information

      for a protection order due to a sexually oriented offense.

             THE RESPONDENT HAS ENGAGED IN REPEATED ACTS OF

      IMPROPER PHYSICAL AND SEXUALLY ORIENTED CONTACT WITH

      THE PETITIONER'S DAUGHTER, [L.].                SPECIFICALLY, HE HAS

      GROPED        HER     BREASTS      AND      BUTTOCKS         ON    SEVERAL

      OCCASIONS, OFTEN CAUSING HER PAIN, HAS PLACED HIS ERECT
Fairfield County, Case No. 13-CA-40                                                    9


       PENIS AGAINST HER, AND HAS EXPOSED HIS PENIS TO HER WHILE

       ON A SCHOOL BUS.            ALL OF THESE ACTS WERE UNWANTED,

       UNWARRANTED, AND MADE [L.W.] FEAR FOR HER SAFETY.



       {¶25} As cited above, L.W. stated she was afraid of appellant, and believed

without a protection order, he would continue to engage in the unwanted behavior. T. at

6. L.W. explained the incidents occurred during the first semester of the school year. T.

at 6. The first semester was presumably from September to the end of December.

Appellant's birthday is November 24, 1994. Appellant reached eighteen years of age

during the first semester of the school year. Appellant's Brief at 5-6 and 15.

       {¶26} Based upon the testimony, we find the court of common pleas had

jurisdiction for the offenses complained of in the petition.

       {¶27} Assignment of Error IV is denied.
Fairfield County, Case No. 13-CA-40                                            10


      {¶28} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, J. concur and

Hoffman, P.J. concurs separately.




SGF/sg306
Fairfield County, Case No. 13-CA-40                                                     11

Hoffman, P.J., concurring

       {¶29} I concur in the majority's analysis and disposition of Appellant's first three

assignments of error. I further concur in the majority's disposition of Appellant's fourth

assignment of error, but do so for a different reason.

       {¶30} I find the eighteen (18) year old age requirement found in R.C. 2903.214

(C)(1) relates to the age of the Respondent at the time the petition is filed and does not

relate to the Respondent's age at the time Respondent engaged in the offensive

conduct.   The statute states the Respondent "is" eighteen (18) years of age "and"

engaged in the violation of Section 2903.211. It does not require the Respondent "was"

eighteen (18) years of age at the time the Respondent engaged in the violation.
