[Cite as Kranek v. Richards, 2011-Ohio-6374.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

CHRISTIAN KRANEK ) CASE NO. 11 JE 2 

) 

PETITIONER-APPELLEE ) 

) 

VS. ) OPINION 

) 

SARAH J. RICHARDS ) 

) 

RESPONDENT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Jefferson County, Ohio 

Case No. 10DR227 

JUDGMENT: Affirmed in part. Reversed in part. 

 Remanded. 

APPEARANCES: 

For Petitioner-Appellee: Christian Kranek, Pro se 

111 Euclid Street 

Amsterdam, Ohio 43903 

For Respondent-Appellant: Atty. Peter S. Olivito 

606-612 Sinclair Building 

Steubenville, Ohio 43952 

Atty. Kristopher M. Haught 

2021 Sunset Boulevard 

Steubenville, Ohio 43952 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Dated: December 7, 2011
[Cite as Kranek v. Richards, 2011-Ohio-6374.]

WAITE, P.J. 

{1} Appellant Sarah J. Richards appeals the judgment of the Jefferson 

County Court of Common Pleas which issued a four-year Civil Stalking Protection 

Order (“CSPO”) against her in favor of Appellee Christian Kranek (“Christian”), along 

with Appellee’s wife Nicholette Kranek (“Nicholette”), and three children, C.K.1 (one 

month old), C.K.2 (one year old), and J.K. (ten years old). Appellant and Christian 

were talking on the phone about visitation issues regarding their child J.K. when 

Appellant threatened to kill him and his family. Three weeks later, Christian received 

a threatening message on his answering machine, and identified Appellant’s voice on 

the recording. A CSPO must be based on a pattern of conduct, and two incidents 

closely related in time constitutes a pattern of conduct. R.C. 2903.211(D)(1). Even 

though Christian has not responded to this appeal, the record does not reasonably 

support reversal. However, the record does reflect that the court told the parties it 

would dismiss the CSPO with respect to the child J.K., as all custody issues 

pertaining to that child file was under the jurisdiction of another court. The trial court 

failed to dismiss as to J.K. Hence, the judgment is partially reversed and the case 

remanded for the trial court to file a corrected judgment entry removing J.K. from the 

CSPO. 

{2} On August 3, 2010, Christian filed a petition for a CSPO against 

Appellant. Appellee sought relief for himself, his wife, and three children. The court 

granted a temporary protection order and set a full hearing for August 20, 2010. 

Appellant, Christian and Nicholette testified at the hearing. Christian and Nicholette 

both described the phone call of July 30, 2010. Christian had called Appellant to 
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discuss visitation issues regarding their child J.K. (Tr., p. 14.) J.K. was speaking to 

Appellant, but the child became upset and started to cry, then left the room. (Tr., p. 

6.) Christian picked up the phone and Nicholette activated the speaker phone 

feature so that she could hear the conversation. Nicholette heard Appellant say, “I’ll 

kill you and your family.” (Tr., p. 6.) Christian heard Appellant say: “I’ll kill you and 

your whole family.” (Tr., p. 15.) Christian also heard Appellant say: “You know I’m 

capable of it and if I can’t do it I know someone who will.” (Tr., p. 15.) 

{3} Approximately 30 minutes after the phone call, a police officer arrived at 

the house due to a report of child abuse made by Appellant to the Madison County 

Sheriff’s Department. (Tr., p. 8.) The officer found that J.K. was fine, and took a 

report about the threatening phone call made by Appellant. When Nicholette wrote 

down what Appellant had said, she left out the word “kill” and wrote: “I’m going to 

and you and your family.” (Tr., p. 9.) She testified in court, though, that Appellant 

said she was going to kill them. 

{4} Christian and Nicholette also testified about a message left on their 

telephone answering machine on August 19, 2010, in which the caller said: “I’m 

going to get you. I’m hiding. I’m waiting for you[.]” (Tr., p. 18.) Christian and 

Nicholette both recognized Appellant’s voice leaving this message. (Tr., pp. 11, 18.) 

{5} Christian testified that, sometime before J.K.’s birth in 2000, Appellant 

threw an ashtray at him that left a permanent scar. (Tr., p. 21.) There was also 

testimony that Appellant displayed a gun to Nicholette during a custody exchange of 

J.K. (Tr., p. 11.) This incident occurred in a McDonald’s restaurant approximately 18 
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months prior to the death threat in July of 2010. One other incident mentioned in the 

record is a threat Appellant made to Nicholette: “About a year-and-a-half ago 

[Appellant] was telling me, you know, I just need to butt out, mind my own business 

or else she’ll kick my butt.” (Tr., p. 13.) 

{6} During the CSPO hearing, the parties explained to the court that 

Appellant had permanent custody of J.K. and that Christian had visitation rights. 

Custody and visitation had initially been decided by the Jefferson County Court of 

Common Pleas, Juvenile Division. Jurisdiction over the juvenile was then transferred 

to the Madison County Court of Common Pleas, Juvenile Division, after Appellant 

moved to that county. The trial judge determined that judicial custody of J.K. fell 

under the jurisdiction of Madison County and that the CSPO would be dismissed as 

to J.K. (Tr., pp. 35-36.) 

{7} On August 26, 2010, the court filed its judgment entry making the 

CSPO permanent until August 3, 2014. On September 1, 2010, Appellant filed a 

request for findings of fact and conclusions of law. On January 5, 2011, the court 

issued its findings. The court made several findings: that custody, visitation and 

child support were contested; that Appellant threatened to kill Christian and his family 

due to the custody dispute; and that Appellant was responsible for multiple threats of 

physical harm that were designed to cause mental distress in order to influence the 

outcome of the custody dispute. The court determined that the evidence showed a 

pattern of threats of physical harm against the persons listed on the CSPO petition. 
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{8} Appellant filed this timely appeal on February 3, 2011. Appellee has 

not responded to this appeal. According to App.R. 18(C), we “may accept the 

appellant's statement of the facts and issues as correct and reverse the judgment if 

appellant's brief reasonably appears to sustain such action.” 

{9} Although Appellant lists four assignments of error, the first three 

assignments deal with specific facts found by the court and these findings all relate to 

the fourth assignment of error challenging the manifest weight of the evidence. For 

these reasons, all the assignments will be treated together.

ASSIGNMENTS OF ERROR 1, 2, 3, AND 4

{10} “THE TRIAL COURT ERRED IN FINDING THAT CUSTODY, 

VISITATION AND SUPPORT ARE CONTESTED. 

{11} “THE TRIAL COURT ERRED IN FINDING THAT SARAH J. 

RICHARDS MADE MULTIPLE THREATS OF PHYSICAL HARM DESIGNED TO 

CAUSE MENTAL DISTRESS IN ORDER TO INDUCE CHRISTIAN KRANEK TO 

FORGO ANY CUSTODY CHALLENGES. 

{12} “THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT OF 

SARAH J. RICHARDS CONSTITUTES A PATTERN OF THREATS OF PHYSICAL 

HARM AND CAUSING MENTAL DISTRESS TO CHRISTIAN KRANEK AND THE 

PERSONS LISTED ON THE PETITION FOR A DOMESTIC STALKING CIVIL 

PROTECTION ORDER. 
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{13} “THE TRIAL COURT [SIC] DECISION IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY COMPETENT, 

CREDIBLE EVIDENCE.” 

{14} In this appeal, Appellant is challenging the factual basis of the trial 

court’s judgment. Thus, Appellant’s manifest weight of the evidence argument 

encompasses all issues raised in this appeal. R.C. 2903.214 governs the issuance 

of a CSPO. The petitioner must demonstrate, by a preponderance of the evidence, 

that the respondent has engaged in menacing by stalking. Strausser v. White, 8th 

Dist. No. 92091, 2009-Ohio-3597, ¶30 The decision whether to grant a CSPO 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, ¶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. 

{15} 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. 
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{16} Appellant first contends that the trial court made findings and issued 

rulings over the custody and child support of J.K. that were outside its authority 

because another court, the Madison County Court of Common Pleas, Juvenile 

Division, already has jurisdiction over custody matters regarding J.K. Although 

Appellant does not cite any law to support this contention, she is correct. A standard 

CSPO contains many sections that potentially relate to parental rights and child 

custody issues. Sup.R. Form 10.03-F. If a child is protected by the order and a 

parent is the respondent bound by the order, then most aspects of the CSPO will 

necessarily affect parental rights in some way. The order may prohibit a parent from 

having contact with a child, from visiting the child, or from residing with the child. The 

CSPO may order the parent not to be in the same vehicle with the child, take 

vacations with the child, or enter the child’s school or day care center. Custody and 

visitation would terminate, as a practical matter, if the order contains the standard 

provision requiring the respondent to stay 500 feet away from the victim. 

{17} We recently held that “when the domestic relations court presiding over 

the [civil protection order] is not the court that has jurisdiction over parental rights and 

responsibilities, the domestic relations court has no authority to issue orders 

regarding parental rights or visitation. Every court that has looked at this issue has 

come to the same conclusion.” McCue v. Marlin, 187 Ohio App.3d 1, 2010-Ohio1298, 930 N.E.2d 855, ¶27. “A common pleas court does not have jurisdiction * * * 

where a juvenile court in the same county has already made a determination of 

parental rights and responsibilities.” Couch v. Harrison (Feb. 12, 2001), 12th Dist. 
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No. CA2000-08-063, *4. “[A] trial court issuing a CPO may temporarily allocate 

parental rights and responsibilities for the minor children if no other court has 

previously or is concurrently doing so.” Parker v. Jamison, 4th Dist. No. 

02CA002857, 2003-Ohio-7295, ¶24. Any provisions of a civil protection order that 

attempt to usurp the final child custody orders of another court cannot be enforced. 

McCue, supra. 

{18} The trial court in this case recognized that the juvenile court of Madison 

County had issued custody orders regarding J.K., and thus, the judge notified the 

parties at the CSPO hearing that J.K. would be removed from the CSPO. The court 

failed to do this in its judgment entry, and for that reason, the case must be 

remanded to the trial court to make that correction. 

{19} The second and third issues raised by Appellant involve the court’s 

finding that she made multiple threats that constituted a pattern of conduct. 

Appellant does not agree that there were multiple threats involved, here. To review 

this matter, we must first look to the elements that must be proven to warrant the 

issuance of a CSPO. R.C. 2903.214 contains the procedure for filing a “petition for 

protection order.” R.C. 2903.214(C) provides: 

{20} “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: 
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{21} “(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;” (Emphasis added.) 

{22} At the heart of a CSPO is an allegation that the accused committed 

menacing by stalking as defined by R.C. 2903.211. 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. Strausser v. White, 8th Dist. No. 

92091, 2009-Ohio-3597, ¶30; Caban v. Ransome, 7th Dist. No. 08MA36, 2009-Ohio1034, ¶7. Turning, then, to the appropriate statute governing stalking, R.C. 

2903.211(A)(1), it 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.” 

{23} “ ‘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). One incident is insufficient to 

establish a “pattern of conduct.” McKinley v. Kuhn, 4th Dist. No. 10CA5, 2011-Ohio134, ¶15; State v. Scruggs (2000), 136 Ohio App.3d 631, 737 N.E.2d 574. 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. 
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Long, 10th Dist. No. 04AP-913, 2005-Ohio-1541, ¶12; Miller v. Francisco, 11th Dist. 

No.2002-L-097, 2003-Ohio-1978, ¶11. 

{24} The pattern of conduct described in R.C. 2903.211(D)(1) must occur 

“closely related in time”. “R.C. 2903.211 does not attempt to define or give further 

meaning to the phrase ‘closely related in time.’ ” State v. Bone, 10th Dist. No. 05AP565, 2006-Ohio-3809, ¶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. It has been held that “[t]he 

incidents need not occur within any specific temporal period.” Jenkins v. Jenkins, 

10th Dist. No. 06AP-652, 2007-Ohio-422, ¶18. A period of eight months has been 

accepted as being closely related in time to support a CSPO. McKinley, supra. 

{25} The CSPO in this case appears to have been based on two main 

incidents. The first occurred on July 30, 2010. This was the phone call in which 

Appellant threatened to kill Christian and his family. The second is the phone 

message from August 19, 2010, in which the caller said: “I’m going to get you. I’m 

hiding. I’m waiting for you[.]” (Tr., p. 18.) Christian and Nicholette both testified that 

they heard Appellant’s voice leave this message. (Tr., pp. 11, 18.) Although the 

second incident is not as threatening as Appellant’s initial statement that she would 

kill Christian and his family, it can be seen as shorthand repetition of the initial threat. 

Since a pattern of conduct can be established with two incidents, the record supports 

the trial court’s findings, and, thus, supports the issuance of the CSPO. Additional 
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relevant evidence can also be found in the record. Appellant has inflicted bodily 

harm in the past, as related in the incident in which Appellant threw an ashtray at 

Appellee that left a permanent scar. Christian and Nicholette were also aware that 

Appellant had purchased a handgun, and she publicly displayed it to Nicholette 

during a custody exchange at a McDonald’s Restaurant in Zanesville, Ohio. (Tr., p. 

11.) Nicholette also testified that Appellant threatened to do her some harm. (Tr., p. 

13.) Thus, there appeared to be an extended pattern of threats and violence, 

culminating in the two instances occurring on July 30 and August 19, 2010. Because 

these two incidents occurred less than three weeks apart, there can be no question 

that the two incidents were closely related in time to one another. 

{26} At the CSPO hearing, Appellant contradicted the testimony of Christian 

and Nicholette. She stated that she never made a death threat. (Tr., p. 27.) The 

court apparently did not believe her version of the events. “The trier of fact is free to 

believe or disbelieve any witness * * *.” Sims v. Dibler, 172 Ohio App.3d 486, 2007-

Ohio-3035, 875 N.E.2d 965, ¶44. “The trier of fact is free to believe all, part or none 

of the testimony of each witness.” State v. Jackson (1993), 86 Ohio App.3d 29, 33, 

619 N.E.2d 1135. 

{27} Appellant’s fourth assignment of error simply restates that she is 

challenging the manifest weight of the evidence. Since there is some competent, 

credible evidence that, if believed, supports the trial court’s findings, there is nothing 

unreasonable, arbitrary or unconscionable in its determination that the findings 

warrant the issuance of a permanent CSPO. While the issuance of this CSPO is 
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valid, it is apparent from the record that the trial court should have deleted J.K. from 

the CSPO because jurisdiction of this child fell to the juvenile court of Madison 

County. Because the trial judge stated on the record that it would dismiss the CSPO 

as to J.K., the judgment entry should have been so modified. 

{28} In conclusion, the record supports a pattern of threats made by 

Appellant against Christian Kranek, Nicholette Kranek, and the three children listed in 

petition for a CSPO. A pattern may be established with two incidents, and two 

incidents are clearly proven in the record. The trial court erred, however, in failing to 

comply with its decision to dismiss the minor child J.K. from the CSPO. The court 

found that J.K. was under the jurisdiction of the juvenile court of Madison County and 

announced to the parties in open court that J.K. would be deleted from the CSPO. In 

light of the trial judge’s finding and the fact that Appellee has not filed a brief in this 

appeal, we partially sustain Appellant’s first and fourth assignments of error. The 

judgment of the trial court is reversed with respect to J.K., and the case is remanded 

for the trial court to remove J.K. from the CSPO. 

Donofrio, J., concurs. 

Vukovich, J., concurs.