[Cite as Burke v. Queen , 2021-Ohio-3619.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

LEEANNE BURKE JUDGES: Hon. William B. Hoffman, P.J. Petitione r -Appellee Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 21 CAE 02 0009 CRYSTAL QUEEN Respondent-Appellant O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 20 CVH 09 0379

JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: October 5, 2021

APPEARANCES:

For Petitione r -Appellee For Respondent-Appellan t ADAM HUBBLE GEOFFREY SPALL, ESQ. Brenner Hubble, LLC Law Office of Geoffre y Spall, LLC 555 Metro Place North 43 South Franklin Stree t Dublin, Ohio 43017 Delaware, Ohio 43015Delaware Count y , Case No. 21 CAE 02 0009 2

Hoffman, P.J. {¶1} Respondent-appellant Crystal D. Queen appeals the judgment ente red by the Delaware County Common Pleas Court granting Petitioner-appe llee Leann D. Burke a civil stalking protection order, and the judgment overruling Queen’s motion for judgment notwithstanding the verdict or in the alternative for a new tri al.

STATEMENT OF THE FACTS AND CASE {¶2} Burke has a child with Queen’s son, making Queen the grandmothe r of Burke’s child. Queen’s son has a history of drug use. As a res ult, in December of 2019, Burke informed Queen and Queen’s son they would only have super vised visits with the

child. {¶3} Despite Burke’s request, Queen came to Burke’s home uninvited t o see the child on multiple occasions. In December of 2019, shortly afte r being asked not to come to Burke’s home uninvited, Queen showed up uninvited as Burke w as getting ready for work. When Burke told Queen it was not a good time for a visit , Queen became upset. {¶4} On April 21, 2020, Queen texted Burke she had a gift for the ch ild’s birthday. Burke asked Queen to leave the gift at the door. Instead, Quee n knocked on the door, and was allowed inside by another child of Burke’s who resided in the home. Queen hugged her grandchild, which was upsetting to Burke due to the Covid-19 pandemic. Burke explained she did not want Queen to hug the child due to the risk of Covid. The child wanted to give Queen a face mask and disinfecting wipes a nd spray, due to the ongoing pandemic. Burke and the child prepared a bag with the items, and left them at Queen’s door. {¶5} Queen appeared at Burke’s home uninvited again on April 27, 202 0, which was the child’s birthday, while Burke and her family were outsi de in the yard. QueenDelaware Count y , Case No. 21 CAE 02 0009 3

wanted to take the child to her automotive shop so the child co uld visit with her biological father on her birthday. Burke refused to allow the child to go with Queen. {¶6} In August of 2020, Queen posted several times on Facebook, call ing Burke a profane name and criticizing her refusal to allow Queen’s son to see the child unsupervised. Burke again texted Queen to leave her alone. Ho wever, on September 1, 2020, Queen drove up to Burke’s home uninvited while Burke was outside with her family. Queen yelled to her grandchild that she loved her, then gesture d with her middle finger before driving away and parking down the street. The gesture was visible to Queen’s grandchild, as well as to Burke’s other children. Burke took he r children inside the house, and called the police. {¶7} After these incidents, Burke was shaking and nervous, and her h eart was pounding. Further, the child’s behavior would deteriorate foll owing the incidents with Queen. She would become angry and act out, and would refuse to use the bathroom despite being previously potty trained. The child’s pediatri cian recommended counseling

for the child based on the behavioral issues which arose after Queen’s unannounced

visits. {¶8} Burke filed a petition for a civil stalking protection order (h ereinafter “CPO”) on September 2, 2020. The trial court issued an ex parte CPO o n September 14, 2020, following an ex parte hearing. The case proceeded to a full he aring on September 30, 2020, where both parties were represented by counsel and presen ted evidence. Following the hearing, the trial court issued the CPO, restrain ing Queen from coming near Burke, Burke’s fiancé, or the child for a period of three years

.Delaware Count y , Case No. 21 CAE 02 0009 4

{¶9} Queen then filed a motion for a judgment notwithstanding the ve rdict, or in the alternative for a new hearing. The trial court found a mo tion for judgment notwithstanding the verdict was not applicable to a CPO case. The trial court considered the merits of Queen’s request for a new hearing on the basis th e court’s judgment was not supported by the evidence, and overruled the motion. {¶10} It is from the September 30, 2020 and January 11, 2021 judgment s of the trial court Queen prosecutes this appeal, assigning as error:

THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

THE CIVIL STALKING PROTECTION ORDER AS SUCH ORDER WAS

NOT SUPPORTED BY SUFFICIENT EVIDENCE OR THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶11} Queen argues the trial court’s judgment is against the manifest weight and sufficiency of the evidence because: (1) there was insufficient evidence Queen knowingly caused Burke mental distress, (2) there was insufficient eviden ce of a pattern of conduct because the incident in 2019, was too remote in time to the inc idents in 2020, and (3) the trial court improperly relied on evidence of incidents involvin g Queen’s son and Queen’s best friend in reaching its decision. {¶12} The trial court issued a CPO pursuant to R.C. 2903.214. A peti tioner may seek relief under R.C. 2903.214 when the respondent allegedly c ommitted menacing by stalking in violation of R.C. 290 3.11, which provides in pertin ent part:Delaware Count y , Case No. 21 CAE 02 0009 5

(A)(1) No person by engaging in a pattern of conduct shall kno wingly cause another person to believe that the offender will cause ph ysical harm to the other person or a family or household member of the othe r person or cause mental distress to the other person or a family or househ old member of the other person. In addition to any other basis for the oth er 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 ot her person's belief or mental distress may be based on words or con duct of the offender that are directed at or identify a corporation, associ ation, or other organization that employs the other person or to which the othe r person belongs.

{¶13} “A person acts knowingly, regardless of purpose, when the perso n is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature....” R.C. 2901.22(B). “Mental distress” for purp oses of the menacing by stalking statute includes “[a]ny mental illness or condition th at involves some temporary substantial incapacity” and “[ a]ny mental illness or condition that would normally require psychiatric treatment, psychologic al treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.” R.C. 2903.211(D)(2). {¶14} The decision whether to grant a civil protection order lies wit hin the sound

discretion of the trial court. Olenik v. Huff , 5th Dist. Ashland No. 02-COA-058, 2003-Ohio-Delaware Count y , Case No. 21 CAE 02 0009 6

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, arb itrary 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). {¶15} Further, a judgment supported by some competent, credible evide nce will not be reversed by a reviewing court as against the manifest we ight 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 th e trial court where there exists some competent and credible evidence supporting the judg ment 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 th e trial court rests with the knowledge the trial judge is best able to view the witnesses an d 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} Queen argues there was no evidence she had reason to believe he r actions in leaving a birthday gift at the door and knocking, or otherwi se showing up at the house uninvited would cause Burke and the child mental distress, and points to evidence of other invited visits and positive interactions between the part ies in support of her argument. {¶17} Burke presented evidence she repeatedly asked Queen to stay awa y from her home unless Queen was invited. Burke testified concerning her nervousness andDelaware Count y , Case No. 21 CAE 02 0009 7

anxiety after Queen’s unannounced visits, as well the behavior problems the child displayed after Queen’s visits, which ultimately resulted in a recommendation by the child’s pediatrician of counseling for the child. While Queen argues she couldn’t possibly be aware her conduct would cause mental distress, the text mess ages between the parties demonstrate Burke repeatedly stressed to Queen she did not want Queen to visit unannounced. The evidence demonstrated during visits, whether planned or unannounced, Queen continued to argue with Burke regarding Burk e’s refusal to allow Queen’s son to see the child in an unsupervised setting. There was evidence the parties argued during a scheduled visit with the child, and evidence Qu een criticized Burke for her parenting choices regarding the child on social media. Fro m all of this evidence, the trial court could conclude Queen “knowingly” caused Burke and t he child mental distress as defined by statute. {¶18} Queen next argues there is insufficient evidence she engaged in a “pattern of conduct” because her unannounced visit in 2019, was too remo te in time to be considered in conjunction with her conduct in 2020. {¶19} “Pattern of conduct” is defined in R.C. 2903.211(D)(1) as “two or more actions or incidents closely related in time.” In Bloom v. Macbeth , 5 th Dist. Ashland No. 2007-COA-050, 2008-Ohio-4564, this Court found a “pattern of co nduct” was supported by the evidence where one incident occurred approximately two y ears before the CPO hearing, the second incident occurred approximately one month b efore the hearing, and the third incident took place three weeks before the hearing. Id . at ¶8, 12. {¶20} In the instant case, we find the trial court did not err in fin ding a “pattern of conduct” was demonstrated by the evidence where one incident oc curred in DecemberDelaware Count y , Case No. 21 CAE 02 0009 8

of 2019, two incidents occurred in April of 2020, and the third incident occurred in September of 2020. The four incidents were separated by less t han a year. The fact that between the unannounced visits there were mutually arranged-upo n phone calls between Queen and the child and at least one pre-arranged visit does no t negate the pattern of Queen showing up unannounced at the house despite Burke’s repea ted requests she refrain from doing so. {¶21} Finally, Queen argues the court improperly considered evidence Queen’s son came to Burke’s house uninvited, and Queen’s best friend st opped and asked the child to come to her house to swim when the child was playing i n the front yard. While the trial court admitted evidence of incidents involving Queen’ s son and best friend, the

trial court was clear it would not consider this evidence in de termining whether Queen’s behavior violated the statute. Tr. 21-22, 41. Further, in ove rruling Queen’s motion for new trial, the trial court stated, “That testimony provided con text, but I did not rely upon either of those events as forming any part of Queen’s pattern o f conduct.” Judgment entry, January 11, 2021, page 8. We find the incidents involvi ng Queen’s son and friend were not considered by the trial court as evidence of Queen’s p attern of conduct, but merely provided context. {¶22} We find the trial court’s judgment was supported by sufficient evidence and was not against the manifest weight of the evidence, and the tr ial court therefore did not abuse its discretion in granting Burke’s petition for a CPO. The assignment of error is

overruled.Delaware Count y , Case No. 21 CAE 02 0009 9

{¶23} The judgment of the Delaware County Common Pleas Court is affir med.

By: Hoffman, P.J. Wise, John, J. and Wise, Earle, J. concur