[Cite as Z.J. v. R.M.,

.]

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,

,

, ¶ 18, citing Levine v. Beckman,

,

(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,

,

,

(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,

.” Bloom v. Macbeth, 5th Dist. Ashland No. 2007-COA-

050,

.

{¶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,

,

(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.,

,

(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,

,

,

. 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,

,

(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,

. “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,

,

(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,

,

,

, ¶ 14, citing State v. Reeder,

,

(1985) and Connally v. Gen. Constr. Co.,

,

,

(1926); Columbus v. Thompson,

,

(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,

, 231–232,

,

(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,

,

¶ 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,

, * 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.”

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,

,

¶ 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,

, 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