[Cite as Madison v. Wilborn, 2012-Ohio-2742.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


CARL MADISON                                    :     JUDGES:
                                                :
                                                :     Hon. Patricia A. Delaney, P.J.
       Petitioner-Appellee                      :     Hon. W. Scott Gwin, J.
                                                :     Hon. John W. Wise, J.
-vs-                                            :
                                                :     Case No. 2011CA00247
JERMAINE WILBORN                                :
                                                :
                                                :
       Respondent-Appellant                     :     OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Case No. 2011MI00134



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             June 11, 2012




APPEARANCES:

For Appellant:                                        For Appellee:

RICHARD DRAKE                                         KEVIN BRECHT
303 Courtyard Centre                                  159 S. Main St.
116 Cleveland Ave. NW                                 Suite 812
Canton, OH 44702                                      Akron, OH 44308
Delaney, P.J.

      {¶1} Respondent-Appellant Jermaine Wilborn appeals the September 30,

2011 judgment of the Stark County Court of Common Pleas to affirm and adopt the

Magistrate’s Decision of July 1, 2011 to grant a Civil Stalking Protection Order

(“CSPO”).

                       FACTS AND PROCEDURAL HISTORY

      {¶2} On May 17, 2011, Petitioner-Appellee Carl Madison filed a Petition for an

Ex Parte Civil Stalking Protection Order against Wilborn. The trial court granted the ex

parte CSPO the same day. A full hearing on the Petition was set for June 28, 2011

before the magistrate. The following facts were adduced at the full hearing.

      {¶3} Wilborn and Madison work at the same place of employment. Testimony

established Wilborn has been hostile towards Madison since 2004.

      {¶4} In November 2010, Wilborn confronted Madison in the bathroom of a

Denny’s restaurant at 1:30 a.m.

      {¶5} In April 2011, Wilborn and Madison engaged in a verbal dispute at work.

Madison and three eyewitnesses testified Wilborn flew into a rage against Madison

and advanced upon Madison until the parties were nose to nose. Wilborn clenched

his fists, pounded his fists on the table, screamed profanity, and caused everyone

present to be extremely concerned that Wilborn would physically assault Madison.

Wilborn agreed the description of the incident was accurate and he was not surprised

that the witnesses of the incident were frightened by his conduct.
      {¶6} A witness testified that Wilborn told her that he followed Madison from

work to find out where Madison lived and that he had followed Madison from work on

more than once occasion. Wilborn told the witness that he wanted to have contact

with Madison’s wife.

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

Madison established Wilborn engaged in a pattern of conduct that knowingly caused

Madison to believe Wilborn would cause him physical harm and caused Madison to

suffer mental distress. The magistrate granted the CSPO on July 1, 2011. The CSPO

was effective until May 17, 2016. The magistrate also issued Findings of Fact and

Conclusions of Law in support of the CSPO. The Findings of Fact and Conclusions of

Law did not include Civ.R. 53 language notifying the parties of their responsibility to

object to the Magistrate's Decision.

      {¶8} On July 14, 2011, Wilborn filed a pro se objection to the July 1, 2011

CSPO. The trial court found Wilborn’s objection did not comply with the requirements

of Civ.R. 53. However, because the July 1, 2011 CSPO did not comply with Civ.R. 53,

the trial court gave the parties 14 days from July 25, 2011 to file written objections to

the CSPO. (Judgment Entry, July 25, 2011.)

      {¶9} Wilborn filed a second pro se objection to the CSPO on August 10, 2011.

Wilborn also filed a notice with the trial court that he was in the process of seeking an

attorney.

      {¶10} On August 24, 2011, the trial court overruled Wilborn’s objections as

being filed out of time as ordered by the trial court on July 25, 2011. The trial court

affirmed and adopted the July 1, 2011 CSPO.
        {¶11} On August 25, 2011, counsel for Wilborn filed a motion for extension to

file objections to the CSPO simultaneously with his objections to the CSPO. Wilborn

requested an extension until September 9, 2011 to allow the court reporter to

complete the transcript. The trial court granted the motion for extension on August 25,

2011.

        {¶12} On September 30, 2011, the trial court issued a judgment entry

overruling Wilborn’s objections. The trial court first found it erroneously granted an

extension to Wilborn on August 25, 2011 because the trial court had already denied

Wilborn’s objections on August 24, 2011. However, it reviewed Wilborn’s most recent

objections and could not find any grounds to reverse the CSPO.

        {¶13} Wilborn filed a Notice of Appeal of the September 30, 2011 Judgment

Entry on October 28, 2011. The docket shows the transcript of the June 28, 2011 full

hearing was filed on October 28, 2011.

                             ASSIGNMENTS OF ERROR

        {¶14} Wilborn raises two Assignments of Error:

        {¶15} “I. THE TRIAL COURT’S DECISION TO GRANT A STALKING CIVIL

PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

        {¶16} “II. THE TRIAL COURT ERRED IN FINDING THE APPELLANT’S

OBJECTION TO BE UNTIMELY FILED.”
                                       ANALYSIS

                                            I.


      {¶17} Wilborn argues in his first Assignment of Error the trial court’s decision to

grant the CSPO was not supported by the manifest weight of the evidence nor was it

supported by sufficient evidence. We disagree.

                    Failure to File a Transcript with the Trial Court

      {¶18} We first must address Wilborn’s failure to present a transcript to the trial

court for its review of Wilborn’s objections to the CSPO. Wilborn filed the transcript of

the full hearing on October 28, 2011, the day he filed his Notice of Appeal. The trial

court never had the opportunity to review the transcript when considering Wilborn’s

objections to the CSPO.

      {¶19} Civ. R. 53(D)(3)(b)(iii) provides:

      (iii) Objection to magistrate's factual finding; transcript or affidavit. An

      objection to a factual finding, whether or not specifically designated as a

      finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a

      transcript of all the evidence submitted to the magistrate relevant to that

      finding or an affidavit of that evidence if a transcript is not available. With

      leave of court, alternative technology or manner of reviewing the relevant

      evidence may be considered. The objecting party shall file the transcript

      or affidavit with the court within thirty days after filing objections unless

      the court extends the time in writing for preparation of the transcript or

      other good cause. If a party files timely objections prior to the date on
        which a transcript is prepared, the party may seek leave of court to

        supplement the objections.

        {¶20} Where an appellant fails to provide a transcript of the original hearing

before the magistrate for the trial court's review, the magistrate's findings of fact are

considered established and may not be attacked on appeal. Stark v. Haser, 5th Dist.

No. 03CAF11057, 2004–Ohio–4641, ¶ 15.

        {¶21} As such, we consider the magistrate’s July 1, 2011 findings of fact to be

established and cannot be attacked on appeal because Wilborn failed to provide the

transcript for the trial court’s review of his objections.      We will only consider the

conclusions of law made by the magistrate and the trial court’s affirmance of the

same.

                              Civil Stalking Protection Order

        {¶22} R.C. 2903.214 governs the filing of a petition for a civil stalking protection

order. R.C. 2903.214(C) provides: “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.”

        {¶23} 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.

        {¶24} 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.”

      {¶25} R.C. 2903.211 further provides as follows:

      (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.

      {¶26} “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

(2nd 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 (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. No. 04AP-913,

2005-Ohio-1541.

      {¶27} R.C. 2903.211(D) further states, in relevant part, as follows

      (2) “Mental distress” means any of the following:

      (a) Any mental illness or condition that involves some temporary substantial

      incapacity;
      (b) Any mental illness or condition that would normally require psychiatric

      treatment, psychological treatment, or other mental health services, whether or

      not any person requested or received psychiatric treatment, psychological

      treatment, or other mental health services.

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

sound discretion of the trial court. Olenik v. Huff, 5th Dist. No. 02-COA-058, 2003-

Ohio-4621, at ¶ 21. Therefore, an appellate court should not reverse the decision of

the trial court absent an abuse of discretion. In order 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).

      {¶29} We further note that 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 Construction Co., 54 Ohio St.2d 279, 280, 376

N.E.2d 578 (1978). A reviewing court must not substitute its judgment for that of the

trial court where there exists some competent and credible evidence supporting the

judgment rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d

742 (1993). The underlying rationale for giving deference to the findings of the trial

court rests with the knowledge that the trial judge is best able to view the witnesses

and observe their demeanor, gestures, and voice inflections, and use these

observations in weighing the credibility of the proffered testimony. Seasons Coal Co.

v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
       {¶30} Wilborn argues Madison failed to prove by a preponderance of the

evidence that Wilborn engaged in a pattern of conduct to knowingly cause Madison to

be in fear of physical harm or cause Madison mental distress. Wilborn first states the

incidents cited by the trial court cannot establish a pattern of conduct that could cause

Madison to be in fear of physical harm because the two incidents cited by the trial

court were months apart.

       {¶31} The pattern of conduct can be as few as two incidents, and the statute

does not specifically set forth what “closely in time” means. In State v. Dario, 106

Ohio App.3d 232 (1st Dist.1995), the First District determined that the trier or fact must

decide on a case-by-case basis in the context of all of the circumstances whether the

instances are close in time. Similarly, in Middletown v. Jones, 167 Ohio App.3d 679,

2006-Ohio-346 (12th Dist.), the Twelfth District stated the trier of fact should consider

the totality of the circumstances of the case when determining whether the incidents

were closely related in time.

       {¶32} In this case, the trial court noted incidents in November 2010 and April

2011 and found them to be closely related in time. During that period of time, a

witness also testified Wilborn admitted to following Madison home at least on two

occasions and he wanted to contact Madison’s wife. Based on the totality of the

circumstances of this case, we find no abuse of discretion in determining these

incidents established two or more incidents closely related in time.

       {¶33} Wilborn also contends that only the April 2011 incident caused Madison

to fear physical harm. The trial court found the April 2011 incident caused Madison to

believe Wilborn would cause him physical harm and Wilborn’s pattern of conduct
caused Madison to suffer mental distress. We held in Coleridge v. Tomsho, 5th Dist.

No. 2002CA00280, 2003-Ohio-650, that R.C. 2903.211 was written in the disjunctive.

A petitioner can establish a fear of physical harm or mental distress. Madison testified

he suffered mental distress as a result of the culmination of incidents between himself

and Wilborn.

      {¶34} Upon review, we find the trial court did not abuse its discretion by issuing

the CSPO. The CSPO was not against the manifest weight of the evidence and it is

supported by sufficient evidence.    Madison and witnesses testified to a pattern of

conduct by Wilborn that caused Madison to fear physical harm and caused him mental

distress. Civil stalking protection order cases most often turn on the credibility of the

witnesses and in this case, the magistrate found Madison and the witnesses to be

more credible than Wilborn.

      {¶35} Wilborn’s first Assignment of Error is overruled.

                                           II.

      {¶36} Wilborn argues in his second Assignment of Error that the trial court

erred in finding Wilborn’s second objection to the CSPO was not timely filed and

therefore denied the same.

      {¶37} We find no support for this argument based on the trial court’s

September 30, 2011 judgment entry.        On August 24, 2011, the trial court denied

Wilborn’s second objection to the CSPO as being untimely filed. Wilborn filed a third

objection to the CSPO on August 25, 2011 with the assistance of counsel. In its

September 30, 2011 judgment entry, the trial court overruled the objections to the

CSPO based on its previous denial on August 24, 2011, but the trial court also noted it
considered the merits of the most recent objections. The trial court stated, “Moreover,

the Court finds that a review of Respondent’s Objections does not bring to light any

grounds upon which the Court should reverse the original decision made by the

Magistrate.”

      {¶38} The trial court considered the merits of Wilborn’s third objection to the

CSPO and it is from this decision that Wilborn appealed.

      {¶39} Wilborn’s      second     Assignment       of    Error    is    overruled.
                                   CONCLUSION

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

to overrule Wilborn’s objections to the CSPO. Wilborn’s first and second Assignments

of Error are overruled.

       {¶41} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Gwin, J. and

Wise, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. W. SCOTT GWIN



                                       HON. JOHN W. WISE


PAD:kgb
                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                       :
CARL MADISON                           :
                                       :
   Petitioner - Appellee               :      JUDGMENT ENTRY
                                       :
                                       :
-vs-                                   :
                                       :      Case No.    2011CA00247
JERMAINE WILBORN                       :
                                       :
  Respondent - Appellant             :
                                     :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                     HON. PATRICIA A. DELANEY



                                     HON. W. SCOTT GWIN



                                     HON. JOHN W. WISE
