[Cite as Cable v. McHenry, 2019-Ohio-4293.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 BRAD CABLE                                        :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 28398
                                                   :
 v.                                                :   Trial Court Case No. 2019-CV-1055
                                                   :
 DON MCHENRY                                       :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                              OPINION

                          Rendered on the 18th day of October, 2019.

                                              ...........

BRAD CABLE, 5325 Rawlings Drive, Dayton, Ohio 45432
     Plaintiff-Appellee, Pro Se

DON MCHENRY, 5313 Rawlings Drive, Dayton, Ohio 45432
     Defendant-Appellant, Pro Se

                                              .............




DONOVAN, J.
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       {¶ 1} Defendant-appellant Don McHenry appeals from a final order of the

Montgomery County Court of Common Pleas issuing a civil stalking protection order

(“CSPO”) against him pursuant to R.C. 2903.214.

       {¶ 2} On March 8, 2019, plaintiff-appellee Brad Cable filed a petition for a CSPO

against McHenry pursuant to R.C. 2903.214. (Dkt.1) The petition was heard and a

temporary, ex parte CSPO was granted the same day. The CSPO protected Cable, his

fiancé, and his niece who lived with him. (Dkt.3.) On March 11, 2019, McHenry was

served with notice of the petition and the order of protection, and he was informed that

the full hearing on the petition would be held on March 19, 2019. (Dkt.4.)

       {¶ 3} The full hearing was held before the magistrate as scheduled on March 19,

2019. Neither Cable nor McHenry was represented by counsel, but both men testified

and presented evidence. On April 16, 2019, the magistrate granted Cable’s petition, the

trial court adopted the order, and a “final” CSPO was entered against McHenry.

       {¶ 4} On April 29, 2019, McHenry filed a motion to reconsider the issuance of the

CSPO. (Dkt.13.) On May 3, 2019, before the magistrate could rule on the motion to

reconsider, McHenry filed a motion to dismiss the CSPO. The magistrate scheduled a

hearing on McHenry’s motion to dismiss to be held on June 13, 2019. However, on May

14, 2019, McHenry filed a notice of appeal with this Court, thereby divesting the trial court

of jurisdiction to make any further rulings in the case.

       {¶ 5} Because they are interrelated, McHenry two assignments of error will be

discussed together as follows:

              THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
                                                                                       -3-


      GOOD CAUSE FOR EX PARTE PROTECTION ORDERS [sic] BASED ON

      APPELLEES PLEAD [sic] FORM –D P.2, CLAIMING 1 (ONE)

      OCCURRENCE OF IMMEDIATE AND PRESENT DANGER WITH

      IMMEDIATE       AND     IRREPARABLE          HARM       OR    INJURY   IN   AN

      EXTRAORDINARY SITUATION OF THREATS AND CONDUCT.

             THE      TRIAL     COURT        ABUSED       ITS      DISCRETION     BY

      DISREGARDING APPELLANT[‘S] TESTIMONY AND EVIDENCE.

      {¶ 6} R.C. 2903.214(C) provides in pertinent part:

      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 * * * [.]

      {¶ 7} R.C. 2903.211, which defines menacing by stalking, states that “No 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 a family or household member

of the other person or cause mental distress to the other person or a family or household

member of the other person.” R.C. 2903.211(A). R.C. 2903.211(D)(1) defines “pattern

of conduct” as two or more actions or incidents closely related in time, whether or not

there has been a prior conviction based on any of those actions or incidents. “R.C.

2903.211(D)(1) does not require that a pattern of conduct be proved by events from at
                                                                                          -4-


least two different days. Arguably, a pattern of conduct could arise out of two or more

events occurring on the same date, provided that there are sufficient intervals between

them.” State v. Scruggs, 136 Ohio App.3d 631, 634, 737 N.E.2d 574 (2d Dist.2000). One

incident is insufficient to establish a “pattern of conduct.” Id. The statute does not define

the term “closely related in time,” but case law suggests the trier of fact should consider

the evidence in the context of all circumstances of the case. Middletown v. Jones, 167

Ohio App.3d 679, 2006-Ohio-3465, 856 N.E.2d 1003, ¶ 10 (12th Dist.). Trial courts may

take every action into consideration, even if some actions in isolation would not seem

particularly threatening. Guthrie v. Long, 10th Dist. Franklin No. 04AP913, 2005-Ohio-

1541, ¶ 12.

       {¶ 8} In the instant case, the record establishes that the parties, who live next door

to one another, have a severely strained and contentious relationship. In his petition for

a CSPO, Cable averred that on March 6, 2019, he observed McHenry standing in his own

backyard near Cable’s fence. Cable stated that McHenry was cursing while he stood

there and told Cable to “come on” and that “he ha[d] something for” Cable. Cable also

averred that he believed McHenry was throwing rat poison in his yard because Cable’s

dog had recently died from allegedly being poisoned with rat poison.

       {¶ 9} Cable further stated that, the next day on March 7, 2019, he was changing

the batteries in his outdoor security cameras when he observed McHenry again standing

in his own backyard holding a shotgun. Cable heard McHenry state that “he [was] going

to shoot a motherf***er tonight.” Based upon the two instances of McHenry’s conduct as

outlined in the petition, Cable stated that he needed a CSPO for the protection of himself,

his fiancé, and his niece.
                                                                                       -5-


      {¶ 10} In his first assignment, McHenry argues that Cable was lying when he made

the averments in his petition for a CSPO regarding McHenry’s conduct on March 6 and

7, 2019. Thus, McHenry asserts that it was error for the magistrate to have granted the

CSPO. However, the record establishes that Cable asserted in his petition that, in two

separate instances over the course of two consecutive days, McHenry behaved in an

overtly threatening and hostile manner towards Cable and his family.         In our view,

McHenry’s actions in this regard could be construed as a “pattern of conduct” pursuant to

R.C. 2903.211(D)(1), such that Cable was entitled to the issuance of a CSPO against

McHenry. Whether Cable’s accusations against McHenry were true was a matter for the

trial court to determine after hearing testimony and observing evidence submitted by the

parties at the full CSPO hearing. Accordingly, the trial court did not err when it granted

Cable’s petition for a CSPO against McHenry.

      {¶ 11} In his second assignment, McHenry essentially contends that the evidence

presented was not sufficient for the issuance of a CSPO. To be entitled to a CSPO, the

petitioner must show by a preponderance of the evidence that the respondent engaged

in menacing by stalking, a violation of R.C. 2903.211. Lewis v. Jacobs, 2d Dist.

Montgomery No. 25566, 2013-Ohio-3461, ¶ 9. Whether the evidence presented was

legally sufficient to sustain a judgment is a question of law. State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997).

      {¶ 12} Menacing by stalking is defined as “engaging in a pattern of conduct” that

knowingly “cause[s] another to believe that the offender will cause physical harm to the

other person or a family member of the other person or cause mental distress to the other

person or a family member of the other person.” R.C. 2903.211(A)(1).          In order to
                                                                                            -6-


establish a pattern of conduct, only two or more actions closely related in time are

required. R.C. 2903 .211(D)(1). In determining what constitutes a pattern of conduct,

courts must take every action of the respondent into consideration, even if some of the

actions in isolation do not seem particularly threatening. Jones, 167 Ohio App.3d 679,

2006-Ohio-3465, 856 N.E.2d 1003, ¶ 10. Explicit threats are not necessary; therefore,

nonverbal acts directed at the victim may be enough to cause the victim reasonably to

believe that physical harm will ensue. State v. Smith, 126 Ohio App.3d 193, 709 N.E.2d

1245 (7th Dist.1998).

       {¶ 13} “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).

       {¶ 14} In the decision granting the CSPO against McHenry, the magistrate made

the following findings of fact:

       The parties are neighbors. Respondent [McHenry] videotapes Petitioner

       [Cable] and his family members. Respondent carried a gun in the yard and

       says he will shoot a mother f****r.         Petitioner’s dog was poisoned.

       Respondent was at Petitioner’s daughter’s window videotaping.

       {¶ 15} Based upon these findings of fact, the magistrate found by a preponderance

of the evidence that McHenry knowingly engaged in a pattern of conduct that caused

Cable to believe that McHenry would cause him or his family members physical harm

and/or mental distress. Thus, the CSPO was granted.

       {¶ 16} The magistrate evidently credited the testimony of Cable where his
                                                                                              -7-


testimony conflicted with that of McHenry. The credibility of the witnesses and the weight

to be given to their testimony are primarily matters for the trier of fact to resolve. State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. This

court will not substitute its judgment for that of the trier of fact on the issue of witness

credibility unless it is patently apparent that the trier of fact lost its way in arriving at its

verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510, *4 (Oct.

24, 1997).

       {¶ 17} Cable’s testimony, if believed, established facts upon which the trial court

could have reasonably relied in finding that McHenry engaged in a pattern of conduct in

an effort to scare and intimidate Cable and his family. The evidence clearly established

that McHenry acted in a threatening manner toward Cable. Specifically, he made overt

verbal references in Cable’s presence to shooting someone while brandishing a firearm.

Cable further testified that McHenry was constantly videotaping him and his family

members. Furthermore, Cable testified that he called the police in December 2018, for

an incident in which he observed McHenry pointing a video camera into his daughter’s

window at their residence. We also note that McHenry did not deny that he was openly

carrying a shotgun in his backyard on March 7, 2019. McHenry testified that he was not

trying to threaten anyone, but rather that he was merely exercising his constitutional rights

on his own property.

       {¶ 18} On the record before us, we find that the trial court could have reasonably

concluded that McHenry's actions were committed with the requisite culpability. From

these facts, the trial court could have found that McHenry knew that his conduct was likely

to cause Cable to believe that McHenry would cause him and/or his family to suffer
                                                                                   -8-


physical harm or mental distress. Therefore, we find that the CSPO was supported by

the preponderance of the evidence and did not constitute an abuse of discretion.

       {¶ 19} McHenry’s first and second assignments of error are overruled.

       {¶ 20} Both of McHenry’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

                                      .............



HALL, J. and TUCKER, J., concur.




Copies sent to:

Brad Cable
Don McHenry
Hon. Timothy N. O’Connell
