Retterer v. Little

[Cite as Retterer v. Little, 2012-Ohio-131.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY

RORY S. RETTERER,

PETITIONER-APPELLEE, CASE NO. 9-11-23

v.

MICHAEL J. LITTLE, OPINION

RESPONDENT-APPELLANT.

Appeal from Marion County Common Pleas Court
Trial Court No. 2011 CV 0283

Judgment Affirmed and Cause Remanded

Date of Decision: January 17, 2012

APPEARANCES:

J. C. Ratliff and Jeff Ratliff for Appellant

Michael N. Schaeffer and Scott N. Schaeffer for Appellee
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ROGERS, P.J.

{¶1} Respondent-Appellant, Michael Little (“Michael”), appeals the

judgment of the Court of Common Pleas of Marion County granting Petitioner-

Appellee, Rory Retterer (“Rory”), and his wife, Lorinda Retterer (“Lorinda”), a

civil stalking protection order (“CSPO”) against Michael. On appeal, Michael

contends that the record contains insufficient evidence to support the issuance of

the CSPO for Rory; that the record contains insufficient evidence to support the

issuance of the CSPO for Lorinda; that granting Rory the CSPO was against the

manifest weight of the evidence; and, that including Lorinda as a protected person

under the CSPO was against the manifest weight of the evidence. Based on the

following, we affirm the judgment of the trial court.

{¶2} On April 27, 2011, Rory filed a petition seeking a CSPO against

Michael, on behalf of himself and Lorinda. That same day, the trial court issued

an ex parte protection order and scheduled the matter for a full hearing.

{¶3} On May 10, 2011, the matter proceeded to a full hearing during which

the following evidence and testimony was adduced.

{¶4} Rory and Lorinda (collectively “the Retterers”) testified that they have

resided at 3854 Maple Grove Road for eight years. Michael and Melody Little

(“Melody”), Michael’s wife, (collectively “the Littles”) testified that they have

resided at 3878 Maple Grove Road for ten years. Both properties are located on

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the east side of Maple Grove Road, which runs north and south in Marion County.

The Retterers’ property is located immediately north of the Littles’ property.

{¶5} Rory and Lorinda testified that since 2006 they have been the victims

of routine verbal abuse from Michael. Rory and Lorinda described Michael’s

verbal abuse as being threatening, aggressive, profanity infused speech which is

triggered whenever Michael hears or sees them on their property outside their

residence. Lorinda testified that Michael’s verbal abuse “is not just a minute or

two * * * he stands out there for an extended length of [time] screaming at the top

of his voice.” Hearing Tr., p. 6. Lorinda further explained that during episodes of

Michael’s verbal abuse his entire body shakes as though he is consumed with rage.

Rory and Lorinda testified that they believe Michael’s routine verbal abuse

towards them is meant to provoke an altercation, intimidate, and instill fear.

{¶6} Rory testified that the first incident with Michael occurred in 2006

(hereinafter “the tree-trimming incident”). A dispute arose regarding trees that

were planted on the Retterers’ property along the Littles’ northern property line.

Michael complained that the tree branches were hanging over his property. Rory

testified that Michael trimmed the branches which hung over his property and

threw the branches into his (Rory’s) yard. Rory testified that he attempted to

discuss the matter with Michael in a “civil manner”, but Michael crossed onto his

property and “got into [his] face” telling him to cut the trees down. Hearing Tr., p.

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61. Rory explained that Michael was trembling with rage, clinching his fists, and

made quick movements with his hands while he was yelling at him about the trees.

Rory testified that he was certain Michael was going to cause him physical harm.

Lorinda testified that she witnessed the incident. Lorinda confirmed that Michael

came onto her property and “[got] into [Rory’s] face” and yelled at him about the

trees. Hearing Tr., p. 8. Lorinda testified that Michael’s actions and demeanor

caused her to fear for Rory’s safety so much so that she ran to a neighbor’s

residence and asked that they contact law enforcement if the situation escalated.

Several days after the incident the Retterers reported the incident to the Marion

County Sheriff, but no charges were filed. Joint Exhibit 1, p. 10.

{¶7} Michael and Melody testified that in 2006 they trimmed portions of

the Retterers’ trees which hung over their property. In order to determine which

branches hung over their property, Michael laid PVC piping along his property

line. Michael testified that he did not cross onto the Retterers’ property when he

trimmed the trees, nor did he have a face-to-face confrontation with Rory. Melody

acknowledged that the Retterers’ contacted the Marion County Sheriff about the

incident, but no charges were filed.

{¶8} Lorinda testified that an incident occurred in the fall of 2007

(hereinafter “the truck incident”). Lorinda was returning home from a church

function at night. As she approached her residence, Lorinda noticed an individual

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run to a truck parked in the Littles’ driveway, which is located on the south side of

the Littles’ property. As Lorinda drove up her driveway towards her garage she

noticed the same truck driving across the Littles’ backyard towards her vehicle

with its headlights on and the horn blaring. Fearing that the truck was going to hit

her vehicle, Lorinda quickly parked her vehicle in the garage and ran into her

residence. Upon entering her residence, Lorinda testified that she was shaking in

fear and informed Rory of the incident and her belief that “[Michael is] trying to

kill me.” Hearing Tr., p. 10. Rory testified that Lorinda was scared and trembling

when she came into the residence after the incident.

{¶9} Lorinda testified that she and Rory had a surveillance system equipped

with cameras installed on the exterior of their residence. One of the surveillance

cameras was positioned over the garage pointing south towards the Littles’

property. Lorinda testified that immediately after the incident she and Rory

reviewed the surveillance video. Petitioner’s Exhibit B. The surveillance video

shows a vehicle driving across the Littles’ property towards the Retterers’ garage

with its headlights on as another vehicle, presumably Lorinda’s vehicle, drives

into the garage.1

{¶10} The following day, the Retterers reported the incident to the Marion

County Sheriff. Joint Exhibit 1, pp. 1-6. Rory and Lorinda testified that they,

1
The surveillance video did not record any sound, thus Lorinda’s testimony provides the only evidence that
the truck’s horn was blaring as it drove towards Lorinda’s vehicle.

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along with a sheriff’s deputy, surveyed the location where Michael’s truck would

have been positioned the previous night and discovered skid marks leading up to

and through the PVC piping Michael had laid to define his property line. Rory

and Lorinda each testified that the skid marks crossed onto their property. Rory

and Lorinda testified that they decided not to press charges.

{¶11} Michael and Melody testified that they have continued problems with

loud music emanating from the Retterers’ residence, as well as barking dogs and

beeping car alarms. On the night of the truck incident, Melody recalled loud

music emanating from the Retterers’ residence causing the walls of her residence

to vibrate. In an effort to quell the music emanating from the Retterers’ residence,

Michael testified that he drove his truck up to, but not over, the Retterers’ property

line, parked it, and honked his horn. Michael testified that a sheriff’s deputy

visited him at work the following day to discuss the incident. Michael testified

that the sheriff’s deputy informed him that Lorinda thought he was going to hit her

vehicle and that she was frightened by his actions. Michael testified that he had no

intention of frightening Lorinda.

{¶12} Shortly after the incident involving the truck, Lorinda became

severely ill and spent much of the following three years in the hospital. Rory

testified that he spent much of that time with Lorinda. Consequently, neither

Rory nor Lorinda spent much time at their residence. However, Rory and Lorinda

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testified that on occasions when they returned to their residence, Michael

continued to verbally abuse them. Rory testified that in 2009, as a result of his

wife’s illness, his father’s recent death, and Michael’s verbal abuse, he took two

months off of work and sought counseling. During this time, Rory testified that he

suffered from stress, migraines, and symptoms of irritable bowel syndrome

(“IBS”). Rory attributed much of his maladies to Michael’s verbal abuse,

testifying that “when [Michael] does the badgering it stresses me out, it causes me

migraines, I’ve come down with symptoms of IBS.” Hearing Tr., p. 69.

{¶13} On April 16, 2011, the Retterers’ hosted a wedding reception for

Lorinda’s brother, Jeremy Pelphrey (hereinafter “the wedding reception incident”).

Pelphrey testified that he and another guest were standing outside the Retterers’

residence while guests were arriving for the reception. During this time, Pelphrey

witnessed Michael yelling profanities and gesturing with clenched fists at guests

who parked their vehicle along the road in front of his property. Pelphrey testified

that the incident made him very uneasy. Though Rory and Lorinda testified that

they did not witness Michael’s behavior towards their guests, Lorinda testified that

Michael’s behavior created an air of concern among the guests.

{¶14} Michael and Melody testified that the Retterers’ did not ask them

whether their guests could park their vehicles along the road in front of their

property. Michael and Melody explained that several of the Retterers’ guests

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parked on their grass along the road.2 Michael and Melody testified that they

asked those guests to park elsewhere. Michael and Melody testified that Michael

did not threaten any of the Retterers’ guests, but Michael testified that he did yell

at guests who parked on their grass along the road.

{¶15} The last incident occurred on April 23, 2011 (hereinafter “the dog

barking incident”). Rory testified that he was working in his garage, when his

dogs started barking towards the trees abutting the Littles’ property. Rory walked

out of his garage to determine why the dogs were barking and saw Michael

standing in the tree line. Rory, without objection, testified that Michael looked at

him and said, “You afraid? Are you - - you think that I’m gonna come over and

kill your puppies?” Hearing Tr., pp. 70-71. Rory continued that Michael followed

this remark stating, “You would be next asshole.” Id. at 71. Rory testified that he

interpreted Michael’s remarks as a threat of physical harm. Three days after the

incident, Rory filed a report with the Marion County Sheriff. Joint Exhibit 1, pp.

7-9. The report contained an allegation that Michael threatened to harm the

Retterers’ dogs, but did not contain an allegation that Michael threatened Rory.

Id.

{¶16} Michael testified that the incident involving the dogs occurred while

he was mowing his lawn. Michael explained that each time he mowed near the

2
At the conclusion of the hearing, the trial court noted that the Retterers’ guests lawfully parked their
vehicles along the road in front of the Littles’ residence.

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Retterers’ property the dogs would start barking. Michael testified that Rory took

no action to quiet his dogs. As a result, Michael testified that he yelled at Rory to

quiet his dogs. Michael testified that he never threatened Rory or his dogs.

{¶17} As a result of the foregoing incidents and Michael’s alleged verbal

abuse, Rory and Lorinda testified that they have significantly altered how they

enjoy their property. Rory testified that he planted trees along his property line

abutting the Littles’ property in an effort to minimize contact with Michael. Rory

and Lorinda testified that they moved all of their outdoor possessions located

nearest to the Littles’ property to the opposite side of their yard. Similarly, Rory,

Lorinda, and Pelphrey testified that family and friends are encouraged to avoid

that portion of their yard nearest to the Littles’ property. Lorinda testified that in

2009 she and Rory attempted to sell their residence because of Michael’s actions,

but abandoned the endeavor due to the market value of their residence.

{¶18} Rory and Lorinda each testified that they fear Michael will cause

them physical harm. Michael, however, testified that he has never intended to

cause the Retterers to be in fear of physical harm or cause them mental distress.

Rory and Lorinda explained that they have delayed seeking a protection order in

the hopes that Michael’s actions towards them would subside. As a result of the

incidents that occurred in April 2011, Rory and Lorinda testified that they sought

the protection order because they could no longer ignore Michael’s actions.

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{¶19} After both parties rested, the trial court found that there was

sufficient evidence to issue the protection order. Specifically, the trial court stated

that the protection order would be issued for a period of four years and that

“[Michael] is * * * to stay at least 60 feet away from Rory Retterer and Lorinda

Retterer.” Hearing Tr., p. 166.3 Despite the trial court’s foregoing statement, we

note that the protection order states that “[r]espondent shall stay away from

protected persons named in this Order, and shall not be present within 500 feet or

60 feet (distance) of any protected persons * * *.” Protection Order, p. 2. Since

this language clearly contravenes the parameters set forth by the trial court during

the hearing, and would otherwise be impossible to obey due to the proximity of

Michael’s residence to the Retterers’ residence, it is clear that the trial court did

not intend the order to prohibit Michael from being present within 500 feet of

Rory or Lorinda.

{¶20} It is from this judgment Michael appeals, presenting the following

assignments of error for our review.

Assignment of Error No. I

THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT THE STALKING PROTECTION ORDER FOR
RORY RETTERER.

Assignment of Error No. II

3
We also note that the temporary protection order only required Michael to remain at least 60 feet away
from Rory and Lorinda. See Docket Entry No. 2.

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THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT THE STALKING PROTECTION ORDER FOR
LORINDA RETTERER.

Assignment of Error No. III

THE STALKING PROTECTION ORDER GRANTED FOR
RORY RETTERER IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.

Assignment of Error No. IV

THE STALKING PROTECTION ORDER GRANTED FOR
LORINDA RETTERER IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.

{¶21} Due to the nature of Michael’s assignments of error, we elect to

address all four assignments of error together.

Assignments of Error Nos. I, II, III & IV

{¶22} In his first, second, third, and fourth assignments of error, Michael

contends that the record contains insufficient evidence to support the issuance of

the CSPO for Rory and Lorinda, and that the issuance of the CSPO for Rory and

Lorinda was against the manifest weight of the evidence. We disagree.

{¶23} When reviewing a trial court’s decision to grant a civil protection

order, we will not reverse the decision absent an abuse of discretion. Van Vorce v.

Van Vorce, 3d Dist. No. 2-04-11, 2004-Ohio-5646, ¶ 15, citing Kramer v. Kramer,

3d Dist. No. 13-02-03, 2002-Ohio-4383, ¶ 11. An abuse of discretion requires

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more than a mere error of law or judgment. An abuse of discretion implies that

the decision of a court was unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying the

abuse of discretion standard, a reviewing court may not simply substitute its

judgment for that of the trial court. Id. Further, if there is some competent,

credible evidence to support the trial court’s decision regarding a CSPO petition,

there is no abuse of discretion. Warnecke v. Whitaker, 3d Dist. No. 12-11-03,

2011-Ohio-5442, ¶ 12, citing Ross v. Ross, 64 Ohio St.2d 203, 414 N.E.2d 426

(1980).

{¶24} Revised Code section 2903.214 governs the issuance of a CSPO.

This section provides, in relevant part:

(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 * * *;

{¶25} To be entitled to a CSPO, the petitioner must show by a

preponderance of the evidence that the respondent engaged in a violation of R.C.

2903.211, Ohio’s menacing by stalking statute, against him or her. Warnecke at ¶

13, citing Kramer at ¶ 14. Similarly, where the petitioner seeks protection of a

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“family or household member” under a CSPO, the petitioner must show by a

preponderance of the evidence that the respondent engaged in a violation of R.C.

2903.211 against the “family or household member” to be protected. See Luikart

v. Shumate, 3d Dist. No. 9-02-69, 2003-Ohio-2130, ¶ 11 (determining that

respondent did not engage in a pattern of conduct against petitioner’s wife and

children, on whose behalf petitioner listed as persons to be protected under the

CSPO).

{¶26} R.C. 2903.211 provides, in relevant part:

(A)(1) 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 cause mental distress
to the other person.

Accordingly, pursuant to R.C. 2903.211, the petitioner must establish that the

respondent (1) engaged in a pattern of conduct, (2) which he or she knew (3)

would cause the person(s) to be protected under the CSPO to believe that he or she

will cause him or her physical harm or mental distress.

Pattern of Conduct

{¶27} Michael first contends that Rory failed to establish that he engaged in

a pattern of conduct for the purposes of R.C. 2903.211(A)(1). Upon review of the

record, we find that the record contains competent, credible evidence that

sufficiently demonstrates that Michael engaged in a pattern of conduct that would

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cause Rory and Lorinda to believe that he would cause them physical harm or

mental distress.

{¶28} R.C. 2903.211(D)(1) defines pattern of conduct as:

[T]wo 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.

{¶29} Notably, the statute does not define “closely related in time.” “In

failing to delimit the temporal period within which the two or more actions or

incidents must occur, the statute leaves that matter to be determined by the trier of

fact on a case-by-case basis.” Ellet v. Falk, 6th Dist. No. L-09-1313, 2010-Ohio-

6219, ¶ 22, citing State v. Dario, 106 Ohio App.3d 232, 238, 665 N.E.2d 759 (1st

Dist. 1995). In determining whether the actions or incidents described during the

CSPO hearing constituted a pattern of conduct the trier of fact should consider the

“evidence in the context of all the circumstances of the case.” Middletown v.

Jones, 167 Ohio App.3d 679, 2006-Ohio-3465, ¶ 10 (12th Dist.), quoting State v.

Honeycutt, 2d Dist. No. 19004, 2002-Ohio-3490, ¶ 26. Therefore, depending upon

the particular circumstances, a pattern of conduct can arise out of two or more

actions or incidents occurring on the same day, Shockey v. Shockey, 5th Dist. No.

08CAE070043, 2008-Ohio-6797, ¶ 19, citing State v. Scruggs, 136 Ohio App.3d

631, 634, 737 N.E.2d 574 (2d Dist. 2000), or it may consist of two or more

intermittent actions or incidents occurring over a period of years. Ellet at ¶ 25; see

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also Middletown at ¶ 11, and Berry v. Patrick, 8th Dist. No. 85255, 2005-Ohio-

3708, ¶ 14-15.

{¶30} Though we presume the trial court found that Michael engaged in a

pattern of conduct against Rory and Lorinda, we note that the trial court, in

granting the CSPO, did not enter findings of fact as to which actions or incidents

constituted a pattern of conduct. Nevertheless, review of the record reveals that

the trial court was presented with four specific incidents between Michael and the

Retterers, to wit: the tree-trimming incident; the truck incident; the wedding

reception incident; and, the dog barking incident. In addition to those four

incidents, the trial court also heard testimony concerning Michael’s routine verbal

abuse towards Rory and Lorinda. Based on the four incidents and Michael’s

verbal abuse, Rory maintains that Michael engaged in a pattern of conduct

prohibited by R.C. 2903.211(A)(1).

{¶31} Of the four incidents testified to during the hearing, we find that the

wedding reception incident does not support a finding that Michael engaged in a

pattern of conduct that would cause Rory or Lorinda to believe that he was going

to cause either of them physical harm or mental distress. Pelphrey, a guest at the

wedding reception, testified that he witnessed Michael yelling profanities at guests

who parked their vehicles along the portion of the road that abutted the Littles’

property. Rory and Lorinda each testified that they did not witness Michael’s

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actions towards their guests, but were nonetheless aware of Michael’s actions.

Michael conceded that he yelled at guests who attempted to park their vehicles

along the portion of the road that abutted his property, explaining that their

vehicles were parked on what he perceived to be his yard. Viewing this incident

in its entirety, Michael’s actions that day appear to be that of a landowner

attempting to prohibit what he perceived to be an unauthorized trespass on his

property, and were not directed at the Retterers. Accordingly, we do not find that

Michael’s actions that day could be construed as causing Rory or Lorinda to

believe that Michael was going to cause either of them physical harm or mental

distress.

{¶32} Aside from the wedding reception incident, the Retterers testified

that in 2006, during a dispute over tree limbs hanging over the Littles’ property,

Michael came onto the Retterers’ property and got “in [Rory’s] face” and yelled at

him while clinching his fists and making quick movements with his hands

(Hearing Tr. Pp. 8, 61); that in 2007 Michael drove his truck towards Lorinda’s

vehicle as she drove up her driveway; that on April 23, 2011, Michael threatened

to kill Rory; and, that Michael has verbally abused them on a routine basis since

2006. In response to each of the foregoing incidents, Michael provided either an

innocent explanation for his conduct, a different version of events, or highlighted

inconsistencies in the Retterers’ testimony in an attempt to discredit the same. As

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the trier of fact, the trial court was “free to believe all, part, or none of the

testimony of any witness who appear[ed] before it.” Smith v. Wunsch, 162 Ohio

App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 22 (4th Dist.). Moreover, while

Michael “either refuted or explained each incident alleged by [the Retterers], the

trial court determines ‘what weight and credibility to afford the appellant’s version

of the events and the appellee’s version of the events.’” Gruber v. Hart, 6th Dist.

No. OT-06-011, 2007-Ohio-873, ¶ 19, quoting Wunsch at ¶ 22. Here, the trial

court clearly gave more weight and credibility to the Retterers’ version of events.

Upon independent review of the record, we cannot say that the trial court erred in

giving more weight and credibility to the Retterers’ version of events as the record

contained competent, credible evidence to support the same.

{¶33} Viewing Michael’s conduct towards the Retterers together, we are

not persuaded by Michael’s contention that the evidence offered at trial was

insufficient to establish that he engaged in a pattern of conduct that would cause

Rory and Lorinda to believe that he would cause them physical harm or mental

distress. First, the record contains evidence of at least two or more “actions or

incidents” which caused Rory and Lorinda to believe that Michael was going to

cause them physical harm or mental distress. Secondly, though each of the

specific incidents occurred over a period of five years, that fact alone does not

prohibit a finding that the Michael engaged in a pattern of conduct for purposes of

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R.C. 2903.211(A)(1). See Rosen v. Chesler, 9th Dist. No. 08CA009419, 2009-

Ohio-3163, ¶ 14 (pattern of conduct occurred over two-year period); Lias v.

Beekman, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, ¶ 22 (pattern of conduct

occurred over sixteen-year period); Middletown at ¶ 11 (pattern of conduct

occurred over a four-year period). In determining whether the respondent engaged

in a pattern of conduct the court must consider the “evidence in the context of all

the circumstances of the case.” Middletown at ¶ 10. The record reveals that

Michael’s conduct towards the Retterers was neither random nor remote. Indeed,

the specific incidents testified to during the hearing were separated by a year or

more. However, Rory and Lorinda testified that during the periods of time

between each incident Michael verbally abused them whenever he heard or saw

them on their property outside their residence. Considering the evidence in the

context of all the circumstances of the case, we find that the trial court did not err

when it concluded that Michael engaged in a pattern of conduct for purposes of

R.C. 2903.211(A)(1).

Knowingly

{¶34} Next, Michael contends that he could not have known that his actions

towards the Retterers caused them to believe that he would cause them physical

harm or mental distress. Upon review of the record, we find that the record

contains competent, credible evidence that sufficiently demonstrates that Michael

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knew that his actions would cause Rory and Lorinda to believe that he would

cause them physical harm or mental distress.

{¶35} Knowingly is defined as follows:

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)

Consequently, a petitioner seeking a CSPO under R.C. 2903.214 is not required to

prove purpose or intent to cause physical harm or mental distress. Ellet, 6th Dist.

No. L-09-1313, 2010-Ohio-6219, at ¶ 30.

{¶36} During the hearing, the trial court heard testimony regarding

Michael’s routine verbal abuse of Rory and Lorinda, as well as three specific

incidents, to wit: the tree-trimming incident; the truck incident; and, the dog

barking incident. The trial court also heard testimony that the Retterers contacted

law enforcement after each incident and that Michael was aware of the same.

Though Michael maintains that the he could not have known that the foregoing

conduct caused the Retterers to believe that he would cause them physical harm or

mental distress, the trial court, based on the nature of the foregoing incidents and

the Retterers’ response thereto, could reasonably conclude that Michael engaged

in a pattern of conduct with knowledge that his conduct caused Rory and Lorinda

to believe that he would cause them physical harm or mental distress.

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{¶37} Accordingly, we find that the trial court did not err when it

concluded that Michael engaged in a pattern of conduct with knowledge that his

conduct would cause Rory and Lorinda to believe that he would cause them

physical harm or mental distress.

Belief of Physical Harm or Mental Distress

{¶38} Last, Michael contends that he neither caused Rory nor Lorinda to

believe that he was going to cause them physical harm or mental distress. Upon

review of the record, we find that the record contains competent, credible evidence

that sufficiently demonstrates that Michael’s actions did cause Rory and Lorinda

to believe that he would cause them physical harm or mental distress.

{¶39} By its very language, R.C. 2903.211(A)(1) does not require the

petitioner to demonstrate that the person(s) to be protected under the CSPO

actually suffered physical harm or mental distress. Dayton v. Davis, 136 Ohio

App.3d 26, 32, 735 N.E.2d 939 (2d Dist. 1999). Rather, the petitioner merely has

to demonstrate that the respondent knowingly caused the person(s) to be protected

under the CSPO to believe that the respondent would cause him or her physical

harm or mental distress. Warnecke, 3d Dist. No. 12-11-03, 2011-Ohio-5442, at ¶

14.

{¶40} R.C. 2903.211(D)(2) defines mental distress as either of the

following:

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(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.

{¶41} “[M]ental distress for purposes of menacing by stalking is not mere

mental stress or annoyance.” Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-

Ohio-1034, ¶ 29. R.C. 2903.211 requires evidence that the person(s) to be

protected under the CSPO developed a mental condition that involved some

temporary substantial incapacity or that would normally require mental health

services. R.C. 2903.211(D)(2). The statute does not, however, require proof that

the victim sought or received treatment for mental distress. State v. Szloh, 189

Ohio App.3d 13, 2010-Ohio-3777, 937 N.E.2d 168, ¶ 27 (2d Dist.). Nor does the

statute require that the mental distress be totally or permanently incapacitating or

debilitating. See Lias, 10th Dist. No. 06AP-1134, 2007-Ohio-5737, at ¶ 16.

“Incapacity is substantial if it has a significant impact upon the victim’s daily life.”

State v. Horsley, 10th Dist. No. 05AP-350, 2006-Ohio-1208, ¶ 48. Thus,

testimony that the respondent’s conduct caused the person(s) to be protected under

the CSPO considerable fear and anxiety can support a finding of mental distress

under R.C. 2903.211. See Horsley at ¶ 47-48; Middletown, 167 Ohio App.3d 679,

2006-Ohio-3465, 856 N.E.2d 1003, at ¶ 8. Additionally, evidence of changed

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routine can corroborate a finding of mental distress. Wunsch, 162 Ohio App.3d

21, 2005-Ohio-3498, 832 N.E.2d 757, at ¶ 20, citing Noah v. Brillhart, 9th Dist.

No. 02CA0050, 2003-Ohio-2421, ¶ 16, and State v. Scott, 9th Dist. No. 20834,

2002-Ohio-3199, ¶ 14.

{¶42} Though we presume the trial court found that Michael’s pattern of

conduct caused Rory and Lorinda to believe that he would cause them physical

harm or mental distress, we note that the trial court, in granting the CSPO, did not

enter findings of fact as to whether Michael’s pattern of conduct caused Rory and

Lorinda to believe that he would cause them physical harm, mental distress, or

both. Nevertheless, review of the record reveals that there was competent,

credible evidence that sufficiently demonstrates that Michael’s pattern of conduct

caused Rory and Lorinda to believe that he would cause them physical harm or

mental distress.

{¶43} During the hearing, the trial court heard testimony from Rory and

Lorinda concerning their respective beliefs that Michael would cause them

physical harm. Rory testified that he believed Michael was going to cause him

physical harm as a result of his actions during the tree-trimming incident and the

dog barking incident. Considering the nature of the tree-trimming incident and the

dog barking incident, it is reasonable to conclude that Rory believed that Michael

would cause him physical harm. As for Lorinda, she testified that she believed

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Michael attempted to kill her during the truck incident, consequently causing her

to believe that Michael was going to cause her physical harm. Although Michael

maintains that he did not intend to cause Lorinda to believe that he was going to

cause her physical harm, the trial court was free to disbelieve Michael’s testimony.

Considering the nature of the incident, especially in light of the surveillance video

which recorded the incident, it is reasonable to conclude that Lorinda believed that

Michael would cause her physical harm.

{¶44} The trial court also heard testimony from Rory and Lorinda

concerning their respective beliefs that Michael would cause them mental distress.

Instead of believing that Michael was going to cause him mental distress, Rory

testified that he has suffered mental distress as a result Michael’s pattern of

conduct. In 2009, Rory took two months off of work and sought counseling as a

result of Michael’s pattern of conduct, his father’s recent death, and Lorinda’s

illness. Rory also testified that during this period of time he suffered from various

maladies, including stress, migraines, and symptoms of IBS. Though Rory’s

maladies and decision to take time off of work and seek counseling may have, in

part, resulted from his father’s recent death and Lorinda’s illness, as Michael

contends, Rory also testified that his maladies and decision to take time off of

work to seek counseling was, in part, due to Michael’s pattern of conduct. There

is no requirement that one’s mental distress must solely be attributable to the

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respondent’s pattern of conduct in order to satisfy the final element of R.C.

2903.211(A)(1). Consequently, we find that a trial court may reasonably conclude

that in situations where a person seeking protection under a CSPO testifies that

their mental distress was caused, in part, by the respondent’s pattern of conduct

such evidence is sufficient to establish the final element of R.C. 2903.211(A)(1).

As for Lorinda, she testified that Michael’s pattern of conduct caused her to live in

fear.

{¶45} Furthermore, the record contains evidence that Michael’s conduct

caused Rory and Lorinda to alter their lifestyle. Rory and Lorinda each testified

that they only utilize the portion of their yard furthest away from the Littles’

property to avoid contact with Michael. Rory testified that he planted trees near

the Littles’ property line in an effort to minimize contact with Michael. Lorinda

testified that she and Rory attempted to sell their residence in 2009 as a result of

Michael’s conduct, but abandoned the endeavor due to the market value of their

residence.

{¶46} Considering the foregoing testimony, we find that there is competent,

credible evidence that sufficiently demonstrates that Michael’s pattern of conduct

caused Rory and Lorinda to believe that he would cause them physical harm or

mental distress.

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{¶47} In light of the foregoing, we find that the trial court did not abuse its

discretion when it granted Rory and Lorinda the CSPO. Accordingly, we overrule

Michael’s first, second, third, and fourth assignments of error.

{¶48} Having found no error prejudicial to Appellant herein, in the

particulars assigned and argued, we affirm the issuance of the CSPO, but remand

the judgment of the trial court for further proceedings, but only to clarify the

mandatory distance of separation between Appellant and Appellee and his wife in

the protection order.

Judgment Affirmed and
Cause Remanded

SHAW, P.J. and WILLAMOWSKI, J., concur.

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