[Cite as Z.J. v. R.M., 2023-Ohio-3552.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Z.J. OBO MINOR : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Petitioner-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2022 CA 0071
:
R.M. :
:
:
Respondent-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2021-CV-
550 R
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 28, 2023
APPEARANCES:
For Petitioner-Appellee: For Respondent-Appellant:
No Appearance DARIN AVERY
105 Sturges Ave.
Mansfield, OH 44903
Richland County, Case No. 2022 CA 0071 2
Delaney, J.
{¶1} Appellant R.M. appeals the September 13, 2022 judgment entry of the
Richland County Court of Common Pleas granting a civil stalking protection order against
him.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 8, 2021, Z.J. filed a petition for civil stalking protection order
and civil sexually oriented offense protection order1 with the Richland County Court of
Common Pleas (“Appellee”). In the petition, Appellee requested protection for himself and
his two minor children against Appellant R.M. (“Appellant”). Appellee and his wife were in
the process of getting a divorce. Appellee and his wife have two children. Appellant and
Appellee had known each other for years and used to be friends until Appellant began to
have a relationship with Appellee’s soon-to-be ex-wife. Appellee alleged in his petition
that Appellant was stalking and harassing Appellee’s fiancé, his fiancé’s children, and
Appellee’s children.
{¶3} Following an ex parte hearing granting the protection order, a full hearing
was conducted.
{¶4} After continuances, the full hearing before the magistrate went forward on
December 14, 2021 and January 4, 2022. Appellee represented himself and Appellant
was represented by counsel. The following evidence was adduced at the hearing.
{¶5} The witnesses described a tense relationship between the men especially
during visitation drop off and pick up times. There was name calling by both men.
1
The magistrate found insufficient evidence to support the sexual abuse allegations and did not issue the
order with respect to these allegations. Therefore, the Court will restrict its recitation of facts to the facts
relevant to the stalking order that was issued.
Richland County, Case No. 2022 CA 0071 3
Appellant made gestures toward Appellee. There was also testimony regarding what
Appellee and his fiancé felt were suspicious actions by Appellant where Appellant
followed their car. The testimony also included a description of Appellant instigating
issues and even urging Appellee to hit him.
{¶6} Both Appellee and Appellant testified. Appellant admitted he was being
immature and an “asshole” unnecessarily. Appellee admitted to calling Appellant a
pedophile multiple times. Witnesses also testified regarding two incidents which formed
the basis for the trial court’s finding of a pattern of conduct. One incident stemmed from
Appellant riding his motorcycle to Appellee’s house and revving his engine in front of the
house until Appellee came outside. The other incident involved the parties seeing each
other at a grocery store.
{¶7} At the conclusion of the case, the magistrate issued an order granting
Appellee a civil stalking protection order. Appellant filed objections to the magistrate’s
decision. The trial court overruled the objections but did modify the terms of the order
relative to attending church.
ASSIGNMENTS OF ERROR
{¶8} R.M. raises five Assignments of Error:
I. THE TRIAL COURT ERRED IN OVERRULING RESPONDENT’S
MOTION TO DISMISS AFTER PETITIONER’S PRESENTATION OF
EVIDENCE.
II. THE TRIAL COURT ERRED IN GRANTING PETITIONER A CIVIL
STALKING PROTECTION ORDER UNDER R.C. 2903.214.
Richland County, Case No. 2022 CA 0071 4
III. THE COURT’S FINDING THAT PETITIONER BELIEVED
RESPONDENT INTENDED TO CAUSE HIM MENTAL DISTRESS WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
IV. R.C. 2903.211 IS UNCONSTITUTIONALLY VAGUE AND
THEREFORE VOID.
V. THE TRIAL COURT DENIED RESPONDENT DUE PROCESS OF LAW.
ANALYSIS
I., II.
{¶9} Appellant’s first two assignments of error are interrelated and raise the
same issue: whether the trial court was prevented from issuing a civil stalking protection
order without first finding Appellee suffered mental distress. In his first assignment of
error, Appellant argues the trial court should have dismissed the petition because the trial
court did not find Appellee suffered mental distress. In his second assignment of error,
Appellant argues the trial court should not have granted the petition because Appellee
failed to establish he suffered mental distress.
{¶10} At the close of Appellee’s case, Appellant moved for dismissal pursuant to
Civ.R. 41(B)(2). In ruling on such a motion to dismiss, a trial court “is not required to
construe the evidence in favor of the non-moving party, but rather may weigh the evidence
and render judgment.” Canter v. Wolfe, 5th Dist. Fairfield, 2016-Ohio-5300, 69 N.E.3d
1061, ¶ 18, citing Levine v. Beckman, 48 Ohio App.3d 24, 27, 548 N.E.2d 267 (10th
Dist.1988). A trial court may order a dismissal “if it finds that the plaintiff's evidence is not
persuasive or credible enough to satisfy [the] burden of proof.” Jarupan v. Hanna, 173
Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66, ¶ 9 (10th Dist.). A trial court's ruling
Richland County, Case No. 2022 CA 0071 5
on a Civ.R. 41(B)(2) motion can be reversed on appeal if it is erroneous as a matter of
law or against the manifest weight of the evidence. Canter at ¶ 19.
{¶11} As noted by Appellant, this Court has already held, “The statute does not
require that the victim actually experience mental distress, but only that the victim believes
the stalker would cause mental distress or physical harm, State v. Horsley, Franklin App.
No. 05AP-350, 2006-Ohio-1208.” Bloom v. Macbeth, 5th Dist. Ashland No. 2007-COA-
050, 2008-Ohio-4564, ¶ 11.
{¶12} Because the statute does not require the victim to actually experience
mental distress, the trial court did not err in overruling the motion to dismiss. Likewise,
the trial court was not required to find Appellee had suffered mental distress prior to
issuing the civil stalking protection order. Therefore, Appellant’s first and second
assignments of error are overruled.
III.
{¶13} In his third assignment of error, Appellant argues the trial court’s finding
Appellee believed Appellant intended to cause him mental distress was against the
manifest weight of the evidence.
{¶14} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court. Olenik v. Huff, 5th Dist. Ashland 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 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).
Richland County, Case No. 2022 CA 0071 6
{¶15} 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, 1993-Ohio-9, 614 N.E.2d 742. The
underlying rationale for giving deference to the findings of the trial court rests with the
knowledge 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).
{¶16} “To be entitled to a civil stalking protection order, a 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.” Tumblin v. Jackson,
5th Dist. Coshocton No. 06CA002, 2006-Ohio-3270, ¶ 17. “Preponderance of the
evidence” is “evidence which is of greater weight or more convincing than the evidence
which is offered in opposition to it; that is, evidence which as a whole show that the fact
sought to be proved is more probable than not.” Black's Law Dictionary 1182 (6th Ed.
1990).
{¶17} R.C. 2903.211(A)(1) defines “menacing by stalking” as follows in part: “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 a family or
Richland County, Case No. 2022 CA 0071 7
household member of the other person or cause mental distress to the other person or a
family or household member of the other person.
{¶18} R.C. 2903.211(D)(1) defines “pattern of conduct” 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.”
{¶19} R.C. 2903.211(D)(2) defines “mental distress” as:
{¶20} (a) Any mental illness or condition that involves some temporary substantial
incapacity;
{¶21} (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.
{¶22} The trial court determined there was a pattern of conduct on the part of
Appellant who knowingly caused Appellee to believe Appellant would cause physical
harm or mental distress to Appellee or his family or household members. The trial court
found there were two incidents which formed the pattern of conduct. In one incident,
Appellant sat outside of Appellee’s house on his motorcycle, revving his engine until
Appellee came outside. Once Appellee came outside, Appellant smiled and took off on
his motorcycle. Appellant admitted he “stayed there longer than I should have.”
{¶23} During the second incident, Appellant testified he was in line at the
pharmacy in the Kroger store. He left the pharmacy line twice to accost Appellee and his
girlfriend.
Richland County, Case No. 2022 CA 0071 8
{¶24} The trial court’s entry detailed testimony which supported Appellee’s
reasonable belief that Appellant would cause mental distress or physical harm including
the following: Appellant’s taunting of Appellee urging Appellee to hit Appellant; Appellee’s
reluctance to be too close to Appellant due to Appellant’s “hit me” taunts; Appellant’s
actions in leaving the prescription line and following Appellee and his girlfriend around the
Kroger store; and Appellant’s taunts regarding his extramarital affair with Appellee’s wife.
{¶25} We find the trial court's judgment was supported by sufficient evidence and
was not against the manifest weight of the evidence, and the trial court therefore did not
abuse its discretion in granting the petition.
{¶26} The third assignment of error is overruled.
IV.
{¶27} In his fourth assignment of error, Appellant argues R.C. 2903.211 is void for
vagueness.
{¶28} “The critical question in all cases as to void for vagueness is whether the
law affords a reasonable individual of ordinary intelligence fair notice and sufficient
definition and guidance to enable him to conform his conduct to the law. City of Norwood
v. Horney, 110 Ohio St.3d 353, 380, 853 N.E.2d 1115 (2006).
{¶29} Statutes which do not fairly inform a person of what is prohibited will be
found unconstitutional as violative of due process. State v. Carrick, 131 Ohio St.3d 340,
2012-Ohio-608, 965 N.E.2d 264, ¶ 14, citing State v. Reeder, 18 Ohio St.3d 25, 26, 479
N.E.2d 280 (1985) and Connally v. Gen. Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70
L.Ed. 322 (1926); Columbus v. Thompson, 25 Ohio St.2d 26, 266 N.E.2d 571 (1971).
However, “ ‘[i]mpossible standards of specificity are not required. * * * The test is whether
Richland County, Case No. 2022 CA 0071 9
the language conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices.’ ” Id. at ¶ 14, quoting Jordan v. De
George, 341 U.S. 223, 231–232, 71 S.Ct. 703, 95 L.Ed. 886 (1951).
{¶30} Appellant argues the statute is vague because “[i]t penalizes behavior
based on its arbitrary interpretation by the beholder rather than by its innate criminal
nature.”
{¶31} In Curington v. Moon, 2nd Dist. Montgomery No. 22809, 2009-Ohio-3013,
¶ 37, the Appellant argued the statute was void because it requires an individual to read
the mind of another person. The Second District disagreed holding, “A person of ordinary
intelligence would understand what R.C. 2903.211 prohibits, and the statute does not
impinge on constitutionally guaranteed freedoms.” Id. at ¶ 40.
{¶32} We likewise find a person of ordinary intelligence would understand what
conduct is prohibited under the statute.
{¶33} The fourth assignment of error is overruled.
V.
{¶34} Appellant’s fifth assignment of error asserts Appellant was denied due
process because the complaint filed by Appellee did not contain specific allegations which
would allow Appellant to present a defense.
{¶35} “[T]he essential elements of due process are notice and an opportunity to
respond.” Lindsay v. Jackson, 1st Dist. Hamilton Nos. C-990786 and A-9905306, 2000
WL 1268810, * 2 (Sept. 8, 2000). “The notice must be reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the action and to afford
them an opportunity to present their objections.” Id.
Richland County, Case No. 2022 CA 0071 10
{¶36} Appellant was generally on notice he was alleged to have engaged in a
pattern of conduct which amounted to stalking. Appellant did not object to any testimony
presented which may have been outside of the specific conduct listed in the petition.
Appellant also did not request a continuance to defend against any conduct presented in
Appellee’s case. Further, because the hearing was held in two parts, Appellant had a
three week break between hearing the allegations contained in Appellee’s case and
presenting his own defense.
{¶37} “[T]o the extent that the Civil Rules of Procedure apply to civil protection
orders, see R.C. 2903.214–(D)(3); Snyder v. Snyder (Aug. 15, 1995), Ross App. No. 94
CA 2068; Skiles v. Dearth (Dec. 15, 2000), Clark App. Nos. 2000–CA–30, 00–DR–0252,
Civ.R. 15(B) provides that when issues not raised by the pleadings are tried by express
or implied consent of the parties, they are treated as if they had been raised in the
pleadings.” Henry v. Coogan, 12th Dist. Clermont No. CA2002-05-042, 2002-Ohio-6519,
¶ 12.
{¶38} The petition in this case apprised Appellant the issue before the court
involved allegations of harassment by Appellant toward Appellee’s children, Appellee’s
girlfriend, and Appellee’s girlfriend’s children. Further, the petition indicated the protection
order was being requested on behalf of Appellee. Appellant was represented by counsel
on both hearing dates. He was on notice of the allegations of harassment and stalking.
Appellant had an opportunity to respond, present witnesses, and cross-examine
Appellee’s witnesses. We find the proceedings below comported with due process
requirements. Appellant was given adequate notice and an opportunity to respond.
{¶39} The fifth assignment of error is overruled.
Richland County, Case No. 2022 CA 0071 11
CONCLUSION
{¶40} Based upon the foregoing, the judgment of the Richland County Court of
Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.
Richland County, Case No. 2022 CA 0071 12
Hoffman, P.J., concurring
{¶41} I concur in the majority’s disposition of this case, specifically, its decision
finding the evidence supported the trial court’s determination Appellant caused Appellee
to believe he would cause him physical harm.
{¶42} However, I disagree with the majority’s proposition of law concerning the
statute not requiring the need to cause actual mental distress. In Bloom v. MacBeth, 5th
Dist. Ashland No. 2007-COA-050, 2008-Ohio-4564, I concurred separately, noting I was
not then persuaded the statute did not require the petitioner to actually experience mental
distress. Having subsequently had the opportunity to review the Seventh District’s Caban
decision, I am now persuaded the statute does so require actual mental distress. I would
overturn our decision in Bloom, supra.