[Cite as L.J. v. M.P.,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

L.J., :

Plaintiff-Appellee, : No. 109403 v. :

M.P., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 4, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-925348

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Matthew Greenwell, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.

MICHELLE J. SHEEHAN, J.:

Appellant, M.P., appeals the grant of a civil stalking protection order

(“CSPO”) in favor of appellee, L.J. Because there was competent evidence presented at the hearing that appellant violated R.C. 2903.211, we overrule appellant’s sole

assignment of error and affirm the trial court’s decision.

L.J. filed a petition for a CSPO. Within the petition, L.J., a probation

officer, sought protection from appellant, who was a probationer under her

supervision. L.J. asserted details regarding her interactions with appellant on two

dates and the statements and threats he made toward her. The trial court held a

hearing on December 17, 2019. At the hearing, L.J. stated that she is a probation

officer in Cuyahoga County and supervises defendants assigned to the mental health

docket. She indicated that she was supervising appellant on three cases. She

testified that on November 5, 2019, she met with appellant and she gave him notice

of a probation violation hearing for failing a drug screen. Appellant glared at her

and raised his voice, and didn’t keep his hands in sight as directed. He kept

clenching his fists, and L.J. became concerned for her safety and contacted

protective services officers. She also believed he was attempting to intimidate her.

He was escorted out of the probation department on her order. Appellant did not

appear for the November 8, 2019 hearing regarding his probation violation. On

November 11, 2019, a capias for appellant’s arrest was issued. Appellant’s attorney

objected to the introduction of evidence of appellant’s actions on November 5, 2019,

claiming that the incidents were not included in the petition. The court overruled

the objection.

L.J. testified that on November 15, 2019, in the afternoon, she called

and spoke to appellant and asked when he was going to come in as directed by his case manager. He said that he was not told to come in. Appellant yelled at L.J.,

complaining he had just been in and asking why there was a warrant. L.J. told

appellant she would not tolerate him yelling at her, that she was to be addressed as

officer, and his aggressive behavior would not be tolerated. Appellant stated where

he was, but raised his voice and said he had no way to come in. He then said he

would get a ride. Appellant appeared at the probation offices at 3:00 p.m. and was

arrested on the court’s warrant. He resisted arrest, banged his head against the wall

when being taken to the holding cell, and had to be restrained. He was yelling and

physically aggressive. While in the holding cell, he asked to speak to his probation

officer. He was told by the arresting officers that the warrant was issued because of

his alleged violations and he said, “I knew I was going to be arrested. When I get

out, I am going to kill her.” When he was brought out of the holding cell, he

continued yelling and resisting and glared at L.J. and said he was going to kill her.

On cross-examination, L.J. indicated that appellant’s physical actions

were threating on November 5, 2019, but conceded he did not verbalize a threat.

Thereafter, L.J. told the court that if appellant is released from jail, she fears for her

safety. After the testimony, appellant’s attorney argued to the court that the

elements of menacing by stalking were not met; that there was no pattern. L.J.

argued appellant threatened her on two separate days and twice on the second day.

The trial court found that by the preponderance of the evidence, the petitioner was

entitled to the CSPO, noting that there need not be overt threats to constitute

menacing. Appellant has raised one assignment of error, arguing that, “the trial

court erred when it granted the civil protection order where the petition failed to

demonstrate that appellant violated R.C. 2903.211.” First, he claims that no pattern

of conduct was presented, and second, he argues that the evidence did not show that

he knowingly acted to cause L.P. to believe he would cause physical harm or to cause

her to suffer emotional distress.

R.C. 2903.214 allows a petitioner to obtain a CSPO by filing a petition

alleging that the respondent engaged in a violation of RC. 2903.211, menacing by

stalking. RC. 2903.211(A)(1) defines menacing by stalking as follows:

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 household member of the other person or cause mental distress to the other person or a family or household member of the other person. In addition to any other basis for the other person’s belief that the offender will cause physical harm to the other person or the other person’s family or household member or mental distress to the other person or the other person’s family or household member, the other person’s belief or mental distress may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.

To obtain a CSPO, a petitioner needs to show, by a preponderance of

the evidence, that the respondent caused the petitioner to believe he would cause

petitioner mental distress or physical harm, not that the respondent did in fact cause

physical harm or mental distress. M.D. v. M.D., 8th Dist. Cuyahoga Nos. 106851 and

106758,

, citing State v. Spaulding,

,

,

, and State v. Horsley, 10th Dist. Franklin No.

05AP-350,

.

“Pattern of conduct” is defined 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.” R.C. 2903.211(D)(1). As stated by one court, “In

determining what constitutes a pattern of conduct, courts must take every action of

the respondent into consideration, even if some of the actions in isolation do not

seem particularly threatening.” Lewis v. Jacobs, 2d Dist. Montgomery No. 25566,

, citing Middletown v. Jones,

, 2006-Ohio

3465,

(12th Dist.). “Explicit threats are not necessary;

therefore, nonverbal acts directed at the victim may be enough to cause the victim

reasonably to believe that physical harm will ensue.”

citing State v. Smith,

,

(7th Dist. 1998). “Further, mental distress need

not be incapacitating or debilitating, and expert testimony is not required. Rufener

v. Hutson, 8th Dist. Cuyahoga No. 97635,

, citing Jenkins v.

Jenkins, 10th Dist. Franklin No. 06AP-652,

.” N.P. v. T.N., 8th

Dist. Cuyahoga No. 106314,

. “Rather, the trial court “‘may

rely on its knowledge and experience in determining whether mental distress has

been caused.’”

, quoting State v. Wunsch,

, 2005-

Ohio-3498,

(4th Dist.).”

Where there is a preponderance of the evidence that the respondent

committed a violation of R.C. 2903.211, the court is empowered to issue a CSPO. M.J.W. v. T.S., 8th Dist. Cuyahoga No. 108014,

. We review a

court’s grant of a CSPO under an abuse of discretion standard. Rufener at ¶ 12. An

abuse of discretion is where the trial court’s decision is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.8d 217, 219,

(1988). The trial court properly grants a CSPO if there is “‘some competent, credible

evidence to support each element of menacing by stalking.’” M.J.W. at ¶ 26, citing

Strausser v. White, 8th Dist. Cuyahoga No. 92091,

, ¶ 88.

First, we note that L.J. is a probation officer. That fact doesn’t change

our review. Despite her job, she is entitled to the equal application of the law. And

even though it is tempting to give more credence to the direness of the threats made

in this case given L.J.’s position as a probation officer, no deference to her position

can be given, or has been given, in our review of this case.

In this case, there was competent, credible evidence presented to

allow the trial court to grant the CSPO. L.J. testified to three instances of verbal

and/or nonverbal threats made on two different days. She testified as to threatening

behavior on November 5th, verbal aggression toward her on the phone on

November 15th, and actual threats made in person that he would kill her. Further,

she believed that appellant would act on those threats. Such actions by a respondent

made on two separate occasions are enough to establish a pattern of conduct under

R.C. 2903.211. L.J.’s belief that appellee would act on those threats is not

unreasonable considering he is a probationer with a conviction for a violent felony

and that his actions escalated from threatening posturing on November 5th to actual threats to kill her. As such, her testimony was sufficient for the trial court to find the

elements of R.C. 2903.211 met and the trial court did not err in issuing the CSPO.

Judgment affirmed.

It is ordered that appellee recover of appellant 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

common pleas court to carry this judgment into execution.

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

of the Rules of Appellate Procedure.

____________________________ MICHELLE J. SHEEHAN, JUDGE

LARRY A. JONES, SR., P.J., CONCURS; EILEEN A. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION ATTACHED

EILEEN A. GALLAGHER, J., DISSENTING:

I respectfully dissent from the opinion of my learned colleagues.

The appellant-respondent (“M.P.”) in this case is a mentally ill

individual. He was under the supervision of the Cuyahoga County Probation

Department-Mental Health Unit Component at the time of the alleged acts which

served as the basis for the issuance of the Civil Stalking Protection Order. In order

for an individual to be supervised by that unit, he or she must have a diagnosis which

includes psychosis (e.g., schizophrenia, bipolar with psychotic features). The appellee-petitioner (“L.J.”) was, at the time of the alleged acts, appellant-

respondent’s probation officer.

It should be noted that the record fails to include page four of Form 4

which requires the signature of the petitioner under the caveat. “The information

above is true, complete, and accurate to the best of my knowledge. I understand that

knowingly providing false information in this document may result in a contempt of

court finding against me which could result in a jail sentence and fine, or criminal

penalties under R.C. 2921.13”

Although the Petition for the Civil Stalking Protection Order, which

was prepared by L.J., makes no reference to any issue when M.P. reported to the

probation department on November 5, 2019, she was permitted, over objection, to

testify as to what she perceived to have occurred on that date. According to L.J.,

after providing M.P. with a notice of a probation violation hearing, he “glared at this

officer in what appeared to be an attempt to intimidate her. He raised his voice and

continued glaring.” She further testified that he “became increasingly agitated and

he began clenching his fists back and forth.” According to L.J., whilst she was “in

the process of contacting the protective services officers for assistance,” M.P.’s case

manager, who was apparently present at the time, escorted him from the offices. A

probation violation hearing was held two days later.

Next to the prepared text of L.J.’s petition is a handwritten notation

“11/05.” In the paragraph prepared by L.J. and which may, or may not be her office

reporting notes, she wrote: DEF REPORTED. CONTACT INFORMATION VERIFIED. 216-***- **** IS BEST WAY TO GET A HOLD OF DEF. THIS IS DEF GF PHONE NUMBER. NO CONTACT WITH LE. DEF SAID THAT HE WAS HIRED BY AMAZON AND THAT HE STARTS ON FRIDAY. HE WILL BE WORKIGN [sic] SUN THRU THURS 7:30AM-5PM. THIS OFFICER CONGRATULATED THE DEFENDAT.[sic] DEF TO PROVIDE OFFICE WITH PROOF OF EMPLOYMENT. DEF SAID THAT HE DID SOMETHING IRRESPONSIBLE AN FORGORT [sic] HIS 12 STEP MEETIGNG [sic] SIGN IN SHEET. ALTHOUGH HIS MURTIS TAYLOR CASE MANAGER BROUGHT HIM HERE, AND WILL VOUGE [sic] FOR HIM ATTENDING MEETINGS. THIS OFFICER ASKED DEF WHEN HE LAST USED ANYTHING. AND HE SAID THAT HE CAN’T RECALL. THIS OFFICER EXPLIANED [sic] TO DEF THAT HIS LAST TEST WAS POSITIVE. DEF SAID I KNOW YOU ARE TRYIGN [sic] TO BE LENIENT WITH ME. THIS OFFICER SAID THAT I WAS NOT BEING LENIENT IN ANY WAY AND THAT HE WOULD BE GOING TO COURT THIS WEEK. DEF UNDERSTANDS. HE SAID THAT HE IS EXPECTING A CALL FOR A DATE FOR ASSESMENT [sic] FOR COUNSELING. DEF SAID THAT HE WOULD NOTIFY THIS OFFICER UPON FINDING OUT THE DATE. DEF SAID THAT HE HASN’T HAD ANYTHING TO DRINK SINCE HE LAST TESTED POSITIVE FOR ALCOHOL. HE SAID HE ISN’T MESSOMG AROUND ANYMORE AN TRYING TO GET IN TROUBLE. DEF PROVIDED WITH WAIVER OF PRELIIM [sic] HEARING AND NOTCEOF [sic] PV HEARING.

L.J.’s notes and her oral testimony fail to comport with one another.

If, in fact, the above notes were prepared contemporaneously with M.P.’s office visit,

they certainly would have contained her claims of agitation demonstrated by M.P.

if, in fact, that behavior by M.P. did occur.

Under cross-examination, as to the purported events of November 5,

2019 to which she testified, L.J. admitted that M.P., on that date, did not make any

verbal threats or any “overt attempts at harming” her nor did he attempt to “lunge

across the desk” at her. L.J. then testified that, on November 15, 2019, she contacted M.P. via

telephone and inquired as to at what time he would be reporting to her office. M.P.

allegedly responded that his case manager never told him to report. “The Defendant

then raised his voice and yelled, quote ‘Ma’am, what the f***? I was just there on

Tuesday and saw your supervisor. Why do I have to come back down? Why do I

have to come in? Why is there a warrant? I have a warrant. You going to arrest

me.’” L.J. then testified that “[t]his officer told the Defendant that I would not

tolerate in any way, shape or form him yelling at me, and I was to be addressed as

officer, nor would aggressive behavior be tolerated at any time.” M.P. established

his location and indicated that he would make arrangements to report.

According to L.J., M.P. did report to her office on November 15, 2019

and was arrested on an active warrant. She testified that “when he was taken into

custody, he resisted arrest, and as he was being taken to the holding cell, he banged

his head against the wall, he was restrained and sheriff’s deputies were called to

assist. The Defendant was yelling and continued to be physically aggressive.”

According to L.J., while he was in “holding” he asked to speak with her but she failed

to indicate that she did, in fact, go to the holding area. L.J. claims that M.P. stated,

“I knew I was going to be arrested. When I get out, I am going to kill her.”

That testimony suggests that those words were related to her rather

than being heard by her. She did, however, testify that when M.P. was removed from

the holding cell, “he continued yelling and resisting while in handcuffs, and he then

glared at this officer and said, quote, ‘I said I was going to kill her,’ end quote.” As to the alleged incident of November 15, 2019, L.J. testified that

while in custody, M.P. “lunged towards me and glared at me and then continued to

resist.”

Menacing by stalking requires that a person engage in a pattern of

conduct that causes another person to believe that the offender will cause physical

harm or mental distress to the other person. “Pattern of conduct” is defined as “two

or more actions or incident closely related in time.”

I find that there was no demonstrable pattern of conduct which would

have supported the issuance of a Civil Stalking Protection Order as the only events

which could support L.J.’s claims occurred only on November 15, 2019 and,

therefore, I would reverse the judgment of the trial court.