[Cite as Luttrell v. Younce, 2011-Ohio-4458.]




               IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO

                                                :
NICOLE LUTTRELL
     Petitioner-Appellee                         :   C.A. CASE NO. 09-CA-45

vs.                                             :    T.C. CASE NO. 09-DV-209

                                                :    (Civil Appeal from
DOUGLAS YOUNCE, JR.                                                 Common    Pleas
                                                     Court)
        Respondent-Appellant                     :

                                       . . . . . . . . .

                                           O P I N I O N

                 Rendered on the 2nd day of September, 2011.

                                       . . . . . . . . .

Nicole Luttrell, 10182 W. Markley Road, Laura, OH 45337
     Petitioner-Appellee

Jeffrey D. Slyman, Atty. Reg. No. 0010098, 575 South Dixie Drive,
Vandalia, OH 45377
     Attorney for Respondent-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Respondent, Douglas Younce, Jr., appeals from a final

order       overruling his objections to a magistrate’s decision and

issuing a civil protection order against him pursuant to R.C.

2903.214.
                                                                   2

     {¶ 2} On August 18, 2009, Nicole Luttrell filed a petition for

a civil stalking protection order against Younce pursuant to R.C.

2903.214.    (Dkt. 1.)   The petition was heard and a temporary, ex

parte civil protection order was granted the same day.    The civil

protection order protected Luttrell, Joseph Johnson (Luttrell’s

stepfather), and Regina Johnson (Luttrell’s mother).      (Dkt. 2.)

A full hearing on Luttrell’s petition was scheduled for August 26,

2009.   Younce was served with notice of the petition, the order

of protection, and that the full hearing on the petition would be

held on August 19, 2009.     (Dkt. 3.).

     {¶ 3} The full hearing on Luttrell’s petition was continued to

August 26, 2009.    Younce was not represented by counsel at the

hearing, but he did have an opportunity to question witnesses and

present evidence.    On August 31, 2009, the magistrate issued a

decision granting Luttrell’s petition and entering a permanent

civil protection order against Younce.      (Dkt. 4.)

     {¶ 4} After obtaining counsel, Younce filed objections to the

magistrate’s decision.      (Dkt. 5.)     The magistrate entered an

amended decision, which included findings of fact.        (Dkt. 9.)

Younce filed supplemental objections to the amended decision.

(Dkt. 10.)   On November 9, 2009, the trial court overruled Younce’s

objections to the magistrate’s decision and entered a civil

protection order, the terms of which are effective until August
                                                                    3

18, 2014.    (Dkt. 11.)   Younce filed a timely notice of appeal.

                    SECOND ASSIGNMENT OF ERROR

     {¶ 5} “THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S

DECISION TO GRANT A CIVIL STALKING PROTECTION ORDER, AS THE

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

     {¶ 6} “Judgments supported by some competent, credible evidence

going to all the essential elements of the case will not be reversed

by a reviewing court as being against the manifest weight of the

evidence.”   C.E. Morris Co. v. Foley Const. Co. (1978), 54 Ohio

St.2d 279, at syllabus.

     {¶ 7} R.C. 2903.214(C) provides:

     {¶ 8} “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:

     {¶ 9} “(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 . . . .”

     {¶ 10} R.C. 2903.211(A)(1) provides “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
                                                                      4

person or cause mental distress to the other person.”

     {¶ 11} A   “pattern   of   conduct”   is    defined   under   R.C.

2903.21(D)(1) 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.”

     {¶ 12} “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).

     {¶ 13} The trial court found that Younce had “engaged in a

pattern of conduct which caused [Luttrell] to be scared of and

threatened by” Younce, and that he “committed the actions knowingly

and that he did so knowing that they would cause [Luttrell] to

believe he would cause physical harm or cause mental distress to

[Luttrell].”    (Dkt. 11, p. 6.)

     {¶ 14} Younce argues that the trial court’s decision was against

the manifest weight of the evidence because the evidence presented

at the hearing failed to establish that Younce knowingly caused

the mental distress Luttrell said she suffered.            According to

Younce, he did not know Luttrell was upset or that she was suffering

mental distress as a result of his alleged conduct.

     {¶ 15} The record suggests that Younce developed an interest in
                                                                   5

Luttrell and that Luttrell did not reciprocate.      The incidents

described below followed Luttrell’s rejection of Younce’s interest

in her.

     {¶ 16} Joseph Johnson, Luttrell’s stepfather, testified that he

witnessed a car traveling at a high rate of speed past Luttrell’s

house three times on the evening of Friday, August 14, 2009.    The

car squealed its tires, causing a cloud of smoke to form.    Younce

called Luttrell’s house that weekend and Johnson told him to leave

Luttrell alone and to stay off the road in front of Luttrell’s

house.    (Tr. 5-6.)

     {¶ 17} Levi Knight, Luttrell’s boyfriend, testified that Younce

called Knight at least four times during the weekend of August 15,

2009, asking Knight for Luttrell’s phone number.    Younce admitted

to Knight that Younce was the driver of the car that squealed its

tires on the street by Luttrell’s house on the evening of Friday,

August 14th.   Knight testified that he has told Younce a number of

times to stop calling Luttrell.   According to Younce, Luttrell is

“scared to death” of Younce and that Luttrell is not comfortable

being in the same room as Younce.    (Tr. 7-11.)

     {¶ 18} Luttrell testified that Younce has called her at various

times and she has asked him multiple times to stop calling her house

and to leave her alone.    According to Luttrell, Younce admitted

to her that he was the one speeding by her house on the weekend
                                                                             6

of August 15th.      On Monday, August 17, 2009, Luttrell filled out

a police report about the incident over the weekend.                 Younce

continued to drive by her house at various times, which made

Luttrell     feel   very    uncomfortable.      Luttrell   testified      that

Younce’s actions have made her very uncomfortable and she feels

scared and threatened.         (Tr. 13-14.)

      {¶ 19} Younce testified that he was never told by anyone to stop

talking to Luttrell or that she did not want to talk to him.               He

explained that a protection order is not necessary because he would

not bother Luttrell if she wanted him to leave her alone. (Tr. 16.)

      {¶ 20} The trial court found that Luttrell, Knight, and Joseph

Johnson were more credible than Younce.           The credibility of the

witnesses and the weight to be given to their testimony are matters

for the trier of facts to resolve.        State v. DeHass (1967), 10 Ohio

St.2d 230.    In State v. Lawson (Aug. 22, 1997), Montgomery App.No.

16288, we observed:

      {¶ 21} “[b]ecause the factfinder . . . has the opportunity to

see   and   hear    the    witnesses,   the   cautious    exercise   of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial        deference    be   extended     to     the   factfinder’s

determinations of credibility.          The decision whether, and to what

extent, to credit the testimony of particular witnesses is within
                                                                       7

the peculiar competence of the factfinder, who has seen and heard

the witness.”

     {¶ 22} This court will not substitute its judgment for that of

the trier of facts on the issue of witness credibility unless it

is patently apparent that the trier of facts lost its way in

arriving at its verdict.      State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

     {¶ 23} The testimony of Knight, Joseph Johnson, and Luttrell was

competent, credible evidence to support the trial court’s decision

to grant the petition for a civil protection order.         Therefore,

the judgment of the trial court is not against the manifest weight

of the evidence.

     {¶ 24} The second assignment of error is overruled.

                    FIRST ASSIGNMENT OF ERROR

     {¶ 25} “THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE’S

DECISION   AS   APPELLANT   WAS   DENIED   DUE   PROCESS   OF   LAW   AS

CONSTITUTIONALLY GUARANTEED HIM BY THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 2 OF THE OHIO

CONSTITUTION.”

     {¶ 26} In his first assignment of error, Younce argues that he

was denied his right to due process, because he was deprived of

his right to counsel, his right to notice and an opportunity to

be heard, and his right to intrastate travel.        We will address
                                                                      8

these three issues in turn.

                           Right to Counsel

     {¶ 27} Younce argues that he was deprived of his right to due

process because he was not represented by counsel at the full

hearing.   According to Younce, it was the trial court’s duty to

fully explain to Younce the disadvantages and risks in not being

represented by counsel and then grant a continuance, sua sponte,

to allow time for Younce to obtain counsel.        We do not agree.

     {¶ 28} The   Sixth   District   recently   addressed   whether   a

respondent has a right to counsel in a proceeding brought pursuant

to R.C. 2903.214.     The Sixth District explained:

     {¶ 29} “The granting of a civil protection order pursuant to

R.C. 2903.214 is not the equivalent of finding that the person

against whom the order is granted has committed a criminal offense.

See Rieger v. Rieger, 165 Ohio App.3d 454, 2006-Ohio-482, ¶9.

Since proceedings involving the determination of whether to grant

a protection order are civil, a defendant is generally not entitled

to legal representation.       See State ex rel. Jenkins v. Stern

(1987), 33 Ohio St.3d 108, 110 (no generalized right of counsel

in civil litigation).        The violation of the ‘civil’ order,

however, is a crime, which may include criminal penalties,

including possible incarceration, depending on the circumstances

and whether the defendant has violated the orders two or more times.
                                                                   9

See R.C. 2919.27.    Thus, the constitutional protections afforded

to a defendant during proceedings involving the violation of a

protection order are not available to a defendant in the initial

proceeding that created the protection order.       See Toledo v.

Lyphout, 6th Dist. No. L-08- 1406, 2009-Ohio-4596.”     In re. D.L.,

189 Ohio App.3d 154, 2010-Ohio-1888, ¶20.

     {¶ 30} We agree with the Sixth District that Younce was not

entitled to counsel as a matter of right at the full hearing on

Luttrell’s petition for a civil protection order.     Further, at no

time did Younce request a continuance of the full hearing in order

to allow him time to obtain an attorney.      At the hearing, the

magistrate asked Younce if he understood that Luttrell was seeking

a protection order against him and he responded in the affirmative.

The magistrate also asked Younce if he was prepared to go forward

without an attorney and Younce again responded in the affirmative.

(Tr. 3-4.)

     {¶ 31} As Younce points out in his appellate brief, R.C.

2903.14(D)(2)(iii) states that the trial court may grant a

continuance of a full hearing in order for a party to obtain

counsel.     But this does not mean that a trial court must always

continue a full hearing any time one or both of the parties appears

at the hearing without an attorney.     Otherwise, the legislature

would      have   made   a    continuance   mandatory     in   R.C.
                                                                    10

2903.14(D)(2)(iii), which it chose not to do.    Rather, a party must

request a continuance of the full hearing if he or she wants

additional time in order to obtain counsel.     Younce failed to make

such a request.

           Right to Notice and an Opportunity to Be Heard

     {¶ 32} R.C. 2903.214(D)(1) provides, in part:

     {¶ 33} “If a person who files a petition pursuant to this section

requests an ex parte order, the court shall hold an ex parte hearing

as soon as possible after the petition is filed, but not later than

the next day that the court is in session after the petition is

filed.     The court, for good cause shown at the ex parte hearing,

may enter any temporary orders, with or without bond, that the court

finds necessary for the safety and protection of the person to be

protected by the order.”

     {¶ 34} A temporary civil protection order was issued to Luttrell

and against Younce after an ex parte hearing.     Younce argues that

he was denied procedural due process because he was not given notice

and an opportunity to be heard prior to the issuance of the

temporary civil protection order.       But it is undisputed that

Younce did receive notice of the full hearing on Luttrell’s

petition and that Younce did in fact participate in the full

hearing.     Therefore, Younce did receive notice and an opportunity

to be heard on Luttrell’s petition for a civil protection order.
                                                                   11

     {¶ 35} With respect to any error assigned, it must be shown that

the complaining party was prejudiced by the error involved.     Bond

v. Bond, Miami App. No. 04CA8, 2004-Ohio-7253, ¶15, citing Smith

v. Fletcher (1967), 12 Ohio St.2d 107.    Harmless errors, that is,

errors that do not affect substantial rights, must be disregarded

by the reviewing court.   Civ.R. 61; R.C. 2309.59.    Any prejudice

to Younce in not being given notice and an opportunity to be heard

before the temporary civil protection order was issued is rendered

harmless by the merger of the temporary order into the permanent

order, for which Younce had full notice and an opportunity to be

heard.

                   Right to Intrastate Travel

     {¶ 36} Younce argues that he was denied substantive due process

because the civil protection order unconstitutionally deprives him

of his right to intrastate travel.     According to Younce:

     {¶ 37} “[U]nder the terms of the mandated stalking order form,

the Respondent must not be within 500 yards of the protected

persons, wherever they may be found.     The Court can take judicial

notice that 500 yards or 1500 feet is over 1/4 mile, or equivalent

to the length of five football fields, or more than three baseball

fields.   At such distance, it is impossible for the human eye of

the restrained person to be able to identify whether the alleged

victim is within the restricted area.      This raises the obvious
                                                                   12

concern of whether the Respondent can even know what conduct is

prohibited under the term of the order.”     (Brief, p. 4-5.)

     {¶ 38} Paragraph 5 of the civil protection order entered against

Younce (Dkt. 4) provides:

     {¶ 39} “5.   RESPONDENT SHALL STAY AWAY from protected persons

named in this order, and shall not be present within 500 feet or

3 blocks (distance) of any protected persons, wherever protected

persons may be found, or any place the Respondent knows or should

know the protected persons are likely to be, even with protected

person’ permission.     If Respondent accidentally comes in contact

with protected persons in any public or private place, Respondent

must depart immediately.    This order includes encounters on public

and private roads, highways, and thoroughfares.”       (Emphasis in

original.)

     {¶ 40} Younce misapprehends the terms of paragraph 5 of the

civil protection order.    For example, Younce states that he cannot

be within 500 yards of the individuals protected by the order when

in fact he cannot be within 500 feet.   Further, paragraph 5 of the

order provides:    “If Respondent accidentally comes in contact with

protected persons in any public or private place, Respondent must

depart immediately.”      (Emphasis in original.)     This sentence

creates an exception to the geographical restriction placed on

Younce.   If he accidentally comes into prohibited contact with a
                                                                 13

person protected under the terms of the civil protection order,

he can avoid a violation of the terms of the order if he departs

immediately.

     {¶ 41} Moreover, R.C. 2919.27(A)(2) provides that “[n]o person

shall recklessly violate the terms of . . . [a] protection order

issued pursuant to section 2151.34, 2903.213, or 2903.214 of the

Revised Code[.]”   Whoever recklessly violates the terms of such

a protection order is guilty of violating a protection order, which

is a misdemeanor of the first degree.      R.C. 2919.27(B)(1)-(2).

The “recklessly” language in R.C. 2919.27(A)(2) provides an

additional safeguard that Younce will not be punished for an

accidental violation of paragraph 5 of the civil protection order.

Further, the civil protection order against Younce was not issued

because Younce was lawfully exercising his right to intrastate

travel and minding his own business.    Rather, Younce was engaging

in activities that “knowingly cause another person to believe that

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

mental distress to the other person.”   R.C. 2903.211(A)(1).   Such

activities are not protected simply because Younce was exercising

his right to intrastate travel at the time he engaged in these

activities.

     {¶ 42} Younce has failed to show that the terms of the civil

protection order are an unconstitutional restraint on his right
                                                                   14

to intrastate travel.   Therefore, the first assignment of error

is overruled.

     {¶ 43} The assignments of error are overruled.   The judgment of

the trial court will be affirmed.

HALL, J. and DONOFRIO, J. concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting
by assignment of the Chief Justice of the Supreme Court of Ohio.)




Copies mailed to:

Nicole Luttrell
Jeffrey D. Slyman, Esq.
Hon. Robert J. Lindeman
