McKinley v. Kuhn

[Cite as McKinley v. Kuhn, 2011-Ohio-134.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

SUSAN C. MCKINLEY, :

Petitioner-Appellee, : Case No. 10CA5

vs. :

KELSEY KUHN, : DECISION AND JUDGMENT ENTRY

Respondent-Appellant. :

_________________________________________________________________

APPEARANCES:

COUNSEL FOR APPELLANT: William J. Holt, 117 West Main Street, Suite 104,
Lancaster, Ohio 43130

COUNSEL FOR APPELLEE: Will Kernen, 158 East Main Street, P.O. Box 388,
Logan, Ohio 43138-0388
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 1-10-11

ABELE, J.

{¶ 1} This is an appeal from a Hocking County Common Pleas Court judgment

that issued a civil stalking protection order (CSPO) against Kelsey Kuhn, respondent

below and appellant herein.

{¶ 2} Appellant raises the following assignment of error for review:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN ISSUING A CIVIL PROTECTION ORDER UNDER R.C.
2903.214 AGAINST THE RESPONDENT BECAUSE
THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL
COURT TO FIND THAT THE RESPONDENT ENGAGED IN
A PATTERN OF CONDUCT.”
HOCKING, 10CA5 2

{¶ 3} On March 3, 2010, Susan C. McKinley, petitioner below and appellee

herein, filed a petition for a CSPO pursuant to R.C. 2903.214. Appellee alleged that

appellant “has threatened more than once to kill my husband” and that he violated a

condition of his probation by entering her property. The trial court (1) issued an ex

parte CSPO in favor of appellee and her husband that would expire on May 3, 2010,

and (2) scheduled the matter for a full hearing.

{¶ 4} On March 24, 2010, the trial court held a hearing. At the hearing, several

witnesses testified that on June 6, 2009, appellant threatened to shoot appellee’s

husband, Alan McKinley. Appellant admitted to law enforcement officers who

responded to this incident that he did, in fact, make this threat. Subsequently,

appellant was convicted of disorderly conduct and ordered not to enter appellee’s

property.

{¶ 5} With respect to the June 6, 2009 incident, appellee testified that appellant

told her husband “that he was going to blow [his] f-ing had off.” Appellee then walked

to him and

“put [her] hand on his chest and * * * said, Kelsey, just go home and he
stepped back and he just kept coming back towards me saying he was
going to kill Alan, you know, and he just kept going on and on. He
wouldn’t stop. He finally–his mom came out. I told his mom, I said get
him back over to your house and get him in there and tell him to shut up
or I’m going to call the law.
Well, she got him over there and he kept coming out the door and
he kept screaming that he was going to kill Alan. So I called the sheriff’s
department and they came out and they took him.”

Appellee stated that shortly after the June 6, 2009 incident, she received a phone call

from appellant’s counselor at Tri-County Mental Health that caused her great concern.
HOCKING, 10CA5 3

Although the exact nature of the conversation is not revealed in the record, the

counselor apparently advised appellee of a legal duty to disclose information to

appellee.

{¶ 6} Appellant apparently did nothing to bother appellee until February 26,

2010 when she observed appellant standing at the end of her driveway. After

approximately ten minutes, he left. He returned, however, after another five or ten

minutes. She explained that she interpreted appellant’s presence on her property as a

threat because “[h]e knows he’s not allowed on [her] property.” She further explained

that appellant was talking to a neighbor who also was near the end of her driveway and

who was waiting for his children to return home from school.

{¶ 7} Appellee testified that on March 3, 2010, as she was leaving for work, a

female from appellant’s house “flipp[ed her] off” and called her “an f-ing bitch.” She

stated that this incident prompted her to file the petition for a protection order. After

she filed the petition, she learned that someone at appellant’s house had been

videotaping her residence and she also learned that appellant has a criminal record.

She stated that after learning about his criminal record, she is “scared to death that he’s

going to do something to [her] or [her] husband.”

{¶ 8} Kathy Kernen, appellant’s probation officer, testified that after appellee

filed the petition for a CSPO, appellant told her, “I feel like I’m getting backed into a

corner and I’ll do what I need to, to get out.” Kernen stated that appellant’s comment

concerned her and she that interpreted it as a threat.

{¶ 9} Patricia Cremean, a neighbor who helped appellee after she had surgery
HOCKING, 10CA5 4

in late 2009, stated that every time she pulled her car into appellee’s driveway,

appellant would exit his house and stay outside until she left.

{¶ 10} After hearing the evidence, the trial court granted appellee’s petition and

explained:

“ * * * Mr. McKinley’s testimony was that he only felt threatened one
time. That was the time where the incident occurred in the garage, but
that he felt the threat was credible because of the nature of the threat and
also the fact that he already knew from a prior incident that [appellant] did
possess weapons. Arguably, I think you could argue whether that’s a
pattern or not a pattern, both ways.
In the case of Mrs. McKinley though, it is a little bit different in my
view. She saw and heard what she saw and it caused her to be scared
or afraid.
After that other things occurred that enhanced her fears rightly or
wrongly. One of those was seeing somebody else on her property, that
somebody else, [appellant], that she knew was forbidden by the municipal
court to be on her property.
And we have no testimony saying [appellant] was not on her
property and we have [appellee’s] testimony that he was and in the
absence of contradiction the court has to accept that.
Then additional corroboration comes after the petition has been
filed in the testimony of the probation officer here to language that she
heard that she thought was threatening and obviously somehow that
information got back to the petitioner here because Ms. Kernen was
subpoenaed to be here to tell what she told today.
And also I don’t know what [appellant’s] record is. But whatever it
is, it apparently enhanced [appellee’s] fears about him.
So information came to her. At least one of those instances of
information could be considered another act that would in my judgment
establish a pattern.”

This appeal followed.

{¶ 11} In his sole assignment of error, appellant asserts that the record does not

contain sufficient evidence to establish that he engaged in a pattern of conduct so as to

justify a civil protection order.

{¶ 12} We initially note that the decision whether to grant a civil protection order
HOCKING, 10CA5 5

is within the trial court's sound discretion. See, e.g., Smith v. Wunsch, 162 Ohio

App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, at ¶10. “The term ‘abuse of discretion’

connotes more than an error of law or of judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140. Moreover, an “appellate court may not simply

substitute its judgment for that of the trial court so long as there is some competent,

credible evidence to support the lower court findings.” State ex rel. Celebrezze v.

Environmental Enterprises, Inc. (1990), 53 Ohio St.3d 147, 154, 559 N.E.2d 1335.

{¶ 13} When an appellate court reviews a trial court’s judgment, the appellate

court must generally defer to the fact-finder’s weighing of the evidence credibility

determination. See, e.g., Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d

77, 81, 461 N.E.2d 1273. As the court explained in Seasons Coal:

“A reviewing court should not reverse a decision simply because it
holds a different opinion concerning the credibility of the witnesses and
evidence submitted before the trial court. A finding of an error in law is a
legitimate ground for reversal, but a difference of opinion on credibility of
witnesses and evidence is not. The determination of credibility of
testimony and evidence must not be encroached upon by a reviewing
tribunal, especially to the extent where the appellate court relies on
unchallenged, excluded evidence in order to justify its reversal.”

Id. Additionally, a trier of fact is free to believe all, part, or none of the testimony of any

witness who appears before it. See Rogers v. Hill (1998), 124 Ohio App.3d 468, 470,

706 N.E.2d 438; Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 42, 623

N.E.2d 591; see, also, State v. Nichols (1993), 85 Ohio App.3d 65, 76, 619 N.E.2d 80;

State v. Harriston (1989), 63 Ohio App.3d 58, 63, 577 N.E.2d 1144.

{¶ 14} R.C. 2903.214 governs the filing of a “petition for protection order.” R.C.
HOCKING, 10CA5 6

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. 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 or committed a
sexually oriented offense against the person to be protected by the
protection order, including a description of the nature and extent of the
violation;
****
(3) A request for relief under this section.

Thus, before a court may grant a CSPO, a petitioner must demonstrate, by a

preponderance of the evidence, that the respondent has engaged in menacing by

stalking in violation of R.C. 2903.211. See Strausser v. White, Cuyahoga App. No.

92091, 2009-Ohio-3597, at ¶30; Caban v. Ransome, Mahoning App. No. 08MA36,

2009-Ohio-1034, at ¶7. The menacing by stalking statute, 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 person or

cause mental distress to the other person.” R.C. 2903.211 was “not enacted for the

purpose of alleviating uncomfortable situations, but to prevent the type of persistent and

threatening harassment that leaves victims in constant fear of physical danger.”

Kramer v. Kramer, Seneca App. No. 13-02-03, 2002-Ohio-4383, at ¶17.

{¶ 15} “‘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. * * * *” R.C. 2903.211(D)(1). Thus, one incident is insufficient to

establish a “pattern of conduct.” See State v. Scruggs (2000), 136 Ohio App.3d 631,
HOCKING, 10CA5 7

737 N.E.2d 574; Dayton v. Davis (1999), 136 Ohio App.3d 26, 735 N.E.2d 939;

Baddour v. Fox (Nov. 15, 2000), Licking App. No. 00 CA 0035. In determining what

constitutes a pattern of conduct for purposes of R.C. 2903.211(D)(1), courts must take

every action into consideration “even if some of the person’s actions may not, in

isolation, seem particularly threatening.” Guthrie v. Long, Franklin App. No. 04AP-913,

2005-Ohio-1541, at ¶12; Miller v. Francisco, Lake App. No. 2002-L-097,

2003-Ohio-1978, at ¶11; see, also, Smith v. Wunsch, 162 Ohio App.3d 21,

2005-Ohio-3498, 832 N.E.2d 757, at fn.3.

{¶ 16} “R.C. 2903.211 does not attempt to define or give further meaning to the

phrase ‘closely related in time.’” State v. Bone, Franklin App. No. 05AP-565,

2006-Ohio-3809, at ¶24. “Consequently, whether the incidents in question were

‘closely related in time’ should be resolved by the trier of fact ‘considering the evidence

in the context of all the circumstances in the case.’” Id., quoting State v. Dario (1995),

106 Ohio App.3d 232, 238, 665 N.E.2d 759.

{¶ 17} Furthermore, to establish the physical harm element, the petitioner need

not show that the respondent made an explicit or direct threat of physical harm.

Kramer v. Kramer, Seneca App. No. 13-02-03, 2002-Ohio-4383, ¶15. Instead, “the

test is whether the offender, by engaging in a pattern of conduct, knowingly caused

another to believe the offender would cause physical harm to him or her.” Id. R.C.

2903.211(D)(2) defines “mental distress” as 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
HOCKING, 10CA5 8

treatment, psychological treatment, or other mental health services.

“Mental distress need not be incapacitating or debilitating.” Perry v. Joseph, Franklin

App. Nos. 07AP-359, 07AP-360, and 07AP-361, 2008-Ohio-1107, at ¶8. Additionally,

expert testimony is not necessary to establish mental distress. Id. Instead, a trial

court may rely on its knowledge and experience in determining whether the petitioner

suffered mental distress. See Smith, supra, at ¶18. We further observe, however,

that “mental distress for purposes of menacing by stalking is not mere mental stress or

annoyance.” Caban, supra, at ¶29.

{¶ 18} In the case at bar, appellee claims two specific incidents constitute a

pattern of conduct. The first occurred on June 6, 2009 when appellant directly

threatened to cause serious physical harm to Mr. McKinley. The second incident

occurred on February 26, 2010, when appellant trespassed onto appellee’s property.

{¶ 19} Appellee also argues that appellant harassed her and her husband “on

numerous occasions” and that he caused them to believe that he would cause them

physical harm or that he caused them mental distress. Appellee asserts that when

appellant threatened to kill her husband, she suffered mental distress. Appellee claims

that her distress intensified when she observed appellant on her property on February

26, 2010, and when she learned about threatening comments he made to others. She

further states that appellant “loitered” outside his home to watch the activities at her

house and that he began videotaping her house after she filed the petition for a

protection order.

{¶ 20} Based upon the combination of factors cited above, we are unable to find

that the trial court's decision to issue a protection order constitutes an abuse of
HOCKING, 10CA5 9

discretion. Appellant made a direct, physical threat to kill Mr. McKinley. After that

threat, he was convicted of disorderly conduct and ordered to stay off appellee’s

property. Appellant, however, entered appellee’s property in February 2010. This act

prompted appellee to file the petition for a protective order. Appellee also observed

appellant watching her house, which caused her to fear that he may be planning to

cause her or her husband physical harm, as he had threatened to do in June 2009.

{¶ 21} It is important to recognize that we, as an appellate court, may not simply

substitute our judgment for the trial court’s, especially when its judgment relies upon its

own observation of the witnesses and appellant. We, however, recognize that if the

only incident was appellant’s threat to kill Mr. McKinley, then a protection order would

not have been appropriate under the statute. We also recognize that appellant asserts

that if he was on appellee’s property on February 26, 2010, a point that he disputes, his

purpose was to talk to a neighbor. The trial court, however, is entitled to disbelieve

appellant’s innocent explanation and to consider his trespass in combination with other

conduct and conclude that appellant's presence on appellee's property constituted a

pattern of conduct that caused appellee to believe appellant would cause her physical

harm or that caused her mental distress.

{¶ 22} Accordingly, based upon the foregoing reasons, we hereby overrule

appellant’s assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.
HOCKING, 10CA5 10

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant

the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking

County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

McFarland, P.J. & Kline, J.: Concur in Judgment & Opinion

For the Court
HOCKING, 10CA5 11

BY:
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.