[Cite as Tupps v. Jansen, 2013-Ohio-1403.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
JACQUELINE TUPPS                              :       Hon. Patricia A. Delaney, P.J.
                                              :       Hon. W. Scott Gwin, J.
                      Petitioner-Appellee     :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012-COA-26
WILLIAM JANSEN                                :
                                              :
                  Respondent-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                          Civil appeal from the Ashland County Court
                                                  of Common Pleas, Case No. 12-CPO-074



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           April 4, 2013

APPEARANCES:

For Petitioner-Appellee                           For Respondent-Appellant

HOWARD W. GLICK                                   JOHN DILTS
23 West Main Street                               28 South Park Street
Ashland, OH 44805                                 Mansfield, OH 44902
[Cite as Tupps v. Jansen, 2013-Ohio-1403.]


Gwin, J.

        {¶1} Respondent-Appellant William Jansen appeals the June 19, 2012 judgment

entry of the Ashland County Court of Common Pleas to affirm and adopt the

Magistrate’s Decision of March 26, 2012, granting a Civil Stalking Protection Order

(“CSPO”) against him for the protection of Petitioner-Appellee Jacqueline Tupps and her

husband Jason Tupps.

                                    FACTS & PROCEDURAL HISTORY

        {¶2}    On February 28, 2012, Petitioner-Appellee Jacqueline Tupps filed a

Petition for an Ex Parte Civil Stalking Protection order against Respondent-Appellant

William Jansen. The trial court granted the ex parte CSPO. A full hearing on the

petition was held on March 9, 2012, before the magistrate.         At the hearing, the

magistrate heard testimony from Richard Rowe, Jacqueline Tupps, and William Jansen.

        {¶3} Appellant is Appellee’s uncle. There are three houses on Appellee’s street.

Appellee’s house is the furthest down the lane from the county road. Her house is

approximately two to three hundred yards away from the next house on the lane, which

is the house where Appellant’s daughter lives.

        {¶4}    Appellee testified to the following incidents: On January 12, 2012 and

February 2, 2012, Appellant drove at a high rate of speed down her road and was

spinning his tires. On January 31, 2012, Appellant rode a four-wheeler to Appellee’s

house and was going so fast he spun gravel. Appellant drove by Appellee’s parents’

house on February 20, 2012, and pointed at the house while Appellee was walking in

the garage. Mr. Rowe, Appellee’s father, told her about two threatening phone calls

made by Appellant on February 17, 2012. On February 27, 2012, Appellant stopped his
Ashland County, Case No. 2012-COA-26                                                    3


truck at the end of Appellee’s lane, was fifty to seventy-five feet away from her, got out

of his truck and pointed at her for approximately twenty seconds. Appellee testified

Appellant had no reason to be past his daughter’s house.

       {¶5}   Appellee testified she was petrified by Appellant’s actions and because of

the incidents, she is afraid to be alone, had a security system installed, won’t leave her

home if she is alone, and is afraid to drive in and out of her driveway.

       {¶6}   Appellee’s father, Richard Rowe, testified that on February 17, 2012,

Appellant first called the cell phone of Rowe’s wife and, while on speakerphone,

threatened to shoot Appellee and her husband twice during the conversation. Appellant

referred to Appellee and her husband with profanity instead of by name. During a

second phone call to Rowe directly on the same day, Appellant said he was going to

shoot “Tupps” (T. at 12).

       {¶7}   Appellant admitted to driving past Appellee’s house, but stated he was

looking for his mother or getting his belongings out of a garage where he had them

stored. He stated he did take a four-wheeler up Appellee’s driveway, but only did so

because he was concerned another neighbor was going to shoot his daughter’s dog.

Appellant was asked twice if he had ever threatened Appellee or her husband and each

time responded he never threatened them with a gun.

       {¶8}   Based on the preponderance of the evidence, the magistrate found

Appellee established Appellant engaged in a pattern of conduct that knowingly caused

Appellee to believe Appellant would cause her physical harm and caused Appellee to

suffer mental distress. The magistrate granted the CSPO on March 26, 2012. The

CSPO was effective until September 9, 2012.
Ashland County, Case No. 2012-COA-26                                                     4


       {¶9}   Appellant filed an objection to the magistrate’s decision on April 2, 2012.

The trial court issued a judgment entry on April 4, 2012, ordering the preparation of a

transcript and giving the parties fourteen days from the filing of the transcript to file a

memorandum regarding the objections. Appellant filed a supplemental objection to the

magistrate’s decision on May 30, 2012, after the transcript was filed on May 16, 2012.

The trial court issued a judgment entry on June 19, 2012, overruling Appellant’s

objections and adopting the CSPO issued on March 26, 2012.

       {¶10} Appellant now raises the following assignments of error on appeal:

       {¶11} “THE TRIAL COURT ERRED IN FINDING BY A PREPONDERANCE OF

THE EVIDENCE THAT APPELLANT HAS ENGAGED IN THE OFFENSE OF

MENACING BY STALKING AGAINST APPELLEE AND SUCH FINDING IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶12} Appellant argues the trial court’s decision to grant the CSPO was not

supported by the manifest weight of the evidence. We disagree.

       {¶13} Initially, we note some courts have held once a protection order expires,

an appeal of that protection order is moot. See, e.g., Devine-Riley v. Clellan, 10th Dist.

No. 11AP-112, 2011-Ohio-4367. However, several courts have found an unspecified

exception to the mootness doctrine applies when an appeal is taken from an expired

CSPO. Daugherty v. Cross, 5th Dist. No. 2005-CA-0078, 2006-Ohio-5545; Fortney v.

Willhoite, 11th Dist. No. 2011-L-120, 2012-Ohio-3024; Wilder v. Perna, 174 Ohio

App.3d 586, 2007-Ohio-6635, 883 N.E.2d 1095 (8th Dist.). Accordingly, we will address

the merits of Appellant’s appeal even though the CSPO expired on September 9, 2012.
Ashland County, Case No. 2012-COA-26                                                    5


      {¶14} R.C. 2903.214 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.” To be entitled to a civil stalking protection order, 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, against the person seeking the order.       See

Tumblin v. Jackson, 5th Dist. No. 06CA002, 2006-Ohio-3270, ¶ 17.

      {¶15} R.C. 2903.211(A), “menacing by stalking,” states that “[n]o person by

engaging in a pattern of conduct shall knowingly cause another to believe that the

offender will cause physical harm to the other person or cause mental distress to the

other person.”

      {¶16} The decision whether to grant a civil protection order lies within the sound

discretion of the trial court and will not be reversed absent an abuse of discretion.

Olenik v. Huff, 5th Dist. No. 02-COA-058, 2003-Ohio-4621, at ¶ 21. To find an abuse of

discretion, this court must determine that the trial court’s decision was unreasonable,

arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).           Further, a judgment

supported by some competent, credible evidence will not be reversed by a reviewing

court as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr.

Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

      {¶17} Appellant first argues Appellee failed to prove by a preponderance of the

evidence that Appellant engaged in a pattern of conduct because there was only one

telephone conversation made in two parts and the only alleged threat was conditional.
Ashland County, Case No. 2012-COA-26                                                    6


      {¶18} R.C. 2093.211 provides:

             (D) As used in this section:

             (1) “Pattern of conduct” means 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.

      {¶19} “R.C. 2903.211(D) (1) does not require that a pattern of conduct be proved

by events from at 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

(2nd Dist. 2000). 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 (12th Dist.). The trier of fact is best able to decide on a case-

by-case basis. State v. Dario, 106 Ohio App.3d 232, 665 N.E. 2d 759 (1995). Trial

courts may take every action into consideration, even if some actions in isolation would

not seem particularly threatening. Guthrie v. Long, 10th Dist. No. 04AP-913, 2005-

Ohio-1541.

      {¶20} In this case, the trial court found the phone call to the cell phone of Rowe’s

wife and the subsequent phone call to Rowe himself to be two events on the same date

with sufficient intervals between them. Further, the trial court found Appellant’s actions

of driving past Appellee’s home at a high rate of speed, exiting his vehicle near her

house and pointing at her when he had no reason to be near her home to be

threatening, when taken cumulatively. Based on the totality of the circumstances in this
Ashland County, Case No. 2012-COA-26                                                        7


case, we find no abuse of discretion in determining these incidents established two or

more incidents closely related in time.

       {¶21} Appellant further argues he did not “knowingly” cause harm or mental

distress to Appellee and emphasizes he never had direct contact with Appellee. We

disagree. “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). Further, “the weight to be given to the evidence and

the credibility of the witnesses is primarily a matter for the trier of fact . . . because the

trier of fact is in the best position to view the witnesses and consider their demeanor

and truthfulness.” Jenkins v. Jenkins, 10th Dist. No. 06AP-652, 2007-Ohio-422, ¶14.

       {¶22} The evidence presented at the hearing provided competent, credible

evidence from which the trial court could have determined Appellant acted knowingly.

Rowe testified there was an ongoing dispute between Appellant and Appellee regarding

property in the area. During Appellant’s testimony, he was asked twice whether he

threatened Appellee or her husband. Appellant did not deny making threats, only that a

gun was not mentioned. Further, the trial court believed Rowe’s testimony regarding

the threatening nature of the two phone calls and Appellee’s version of the incident on

February 27, 2012, finding that the action of Appellant stopping at the end of the

driveway, standing there and pointing at her from approximately fifty feet away, was

threatening based upon the prior phone calls made by Appellant threatening to shoot

Appellee and her husband. The trial court further noted the cumulative effect of the

encounters of Appellant driving by Appellee’s home at a high rate of speed. Appellee
Ashland County, Case No. 2012-COA-26                                                       8


testified she is afraid to stay alone, had a security system installed and is afraid to drive

in and out of her driveway due to Appellant’s actions.

       {¶23} Accordingly, competent, credible evidence exists in the record from which

the trial court could have determined Appellant acted knowingly for purposes of R.C.

2903.211.

       {¶24} Based on the foregoing, we find no abuse of discretion by the trial court to

overrule Appellant’s objections to the CSPO.         Appellant’s Assignment of Error is

overruled.

       {¶25} The judgment of the Ashland County Court of Common Pleas is affirmed.

By Gwin, J.,

Delaney, P. J., and

Wise, J., concur


                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. PATRICIA A. DELANEY


                                               _________________________________
                                               HON. JOHN W. WISE




WSG:clw 0307
[Cite as Tupps v. Jansen, 2013-Ohio-1403.]


              IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


JACQUELINE TUPPS                               :
                                               :
                         Petitioner-Appellee   :
                                               :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
WILLIAM JANSEN                                 :
                                               :
                                               :
                     Respondent-Appellant      :       CASE NO. 2012-COA-26




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Ashland County Court of Common Pleas is affirmed. Costs to appellant.




                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. JOHN W. WISE


                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY
