[Cite as York v. York, 2022-Ohio-4733.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT 

MEIGS COUNTY 

KAREN YORK, : Case No. 21CA5

:

Petitioner-Appellant, :

: 

v. : DECISION AND JUDGMENT

: ENTRY

GARY YORK, : 

: RELEASED: 12/21/2022

Respondent-Appellee. :

APPEARANCES:

Tracy S. Comisford, Granville, Ohio for Appellant. 

Robert W. Bright, Middleport, Ohio for Appellee.

 

Wilkin, J.

{¶1} This is an appeal by petitioner-appellant, Karen York (“Karen”), from 

a Meigs County Court of Common Pleas judgment entry that denied her petition 

for a civil protection order (“CPO”). Karen asserts a single assignment of error: 

“The trial court erred in dismissing Karen’s petition seeking a domestic violence 

civil protection order.” Respondent-appellee, Gary York (“Gary”) has filed a brief 

in response. After reviewing the parties’ arguments, the record, and applicable 

law, we find that the trial court’s judgment is not against the manifest weight of 

the evidence. Therefore, we affirm the trial court’s judgment entry denying 

Karen’s petition for a CPO. 
Meigs App. No. 21CA5 2

BACKGROUND

{¶2} Gary and Karen were married for 37 years. They have four children, 

three of whom testified in this case: Michael, Amber, and Kaitlyn. All of the 

children are adults; however, Kaitlyn was a minor at the time of the events 

herein. In June 2019, Gary and Karen divorced. Yet, they continued to live 

together, until Gary decided to move in his new wife (“Jelly”). So, in November of 

2019, Karen moved out of the marital home and into a trailer on a nearby 

property that she jointly owned with Gary, although in this decision we will refer to 

it as her property to avoid confusion. Gary, Jelly, and Kaitlyn live in the parties’ 

former marital home. 

{¶3} On August 20, 2020, Karen filed a petition seeking a CPO against 

Gary, pursuant to R.C. 3113.31. The petition was dismissed and immediately 

refiled again on January 20, 2021. The petition alleged that: (1) Gary blocked 

Karen’s driveway for two hours, (2) during this incident Gary chambered a round 

in his pistol and then re-holstered it, (3) Gary asked Karen if she thought that her 

car window would protect her, (4) Gary turned off the electric to her home, (5) 

Gary threatened to shoot both her and her friend, Robert, (6) Gary placed a 

tracking device on Karen’s vehicle, (7) Gary told her that a civil protection order is 

just a piece of paper and a bullet can go through paper, and (8) Gary would 

come over all hours of the day and night to her trailer. The petition listed four 

cases against Gary that purportedly were pending at the time – menacing by 

stalking, abduction, disrupting public services, and domestic violence. 

{¶4} On July 7, 2021, the trial court held a full hearing in which the court
Meigs App. No. 21CA5 3

heard testimony from Karen; Gary; their children Amber, Michael, Kaitlyn; and 

Sergeant Donald Mohler of the Meigs County Sheriff’s Office for the purpose of 

determining whether there was sufficient evidence for the court to grant Karen’s 

petition. 

{¶5} Prior to the questioning of the witnesses, counsel for Gary 

represented to the court that the menacing by stalking, abduction, and disrupting 

public services charges had all been dismissed, while a fourth-degree 

misdemeanor domestic violence charge was set for an August trial. The 

following is summary of the testimony from each of the witnesses at the CPO 

hearing.

A. Testimony

Karen

{¶6} Karen testified that from the date of their divorce until the summer of 

2020 a “majority of the time” she and Gary “got along pretty good.” On June 27, 

2020, she had a cookout that included her boyfriend, Robert, as well as some of 

her children and grandchildren. After the cookout, about midnight, Gary came 

over to Karen’s property on a four-wheeler (“ATV”) and gave her some 

documents, which may have included a bill and some tax papers. He came back 

again about 20 minutes later, but Karen could not remember why. Karen claims 

Gary was “agitated” both times. He texted her four to six times that night after he 

left about getting the taxes done. Gary then invited Karen to his Fourth of July 

party. 
Meigs App. No. 21CA5 4

{¶7} On June 27, 2020, Karen claimed that Gary threatened to shoot 

Robert, if Gary ever caught Robert on his property. Because of the threat, Karen 

decided not to attend Gary’s party. 

{¶8} On July 4, 2020, the night of Gary’s party, Karen claimed that Gary 

texted her numerous family pictures and stated that he had nothing to live for.

Because they were divorced living their own lives, Karen interpreted Gary’s 

actions as he was contemplating suicide. 

{¶9} Karen related that sometime in July 2020, she asked Gary to assist 

her in setting posts in order to construct a lean-to on her property. Gary told 

Karen that he would be bringing his wife to help. On the afternoon of July 31, 

2020, Gary came to Karen’s property to trim branches in preparation to install the 

posts for the lean-to. Meanwhile, Karen was tearing down the old lean-to. Karen 

testified: “something was said. I don’t know if I said must‘ve said something 

about, you know, shooting his wife, I guess is what was said[.]” However, Karen 

continued: “I never said anything like that, unless he made the comment first 

about, you know, the friend being on the property or, you know, he’s threatened 

to shoot the friend and myself and himself before, um, so it . . . something like 

that was said, you know, he just he up and left.” After that exchange, Gary left 

“in kind of a huffy demeanor.” Karen never called law enforcement or sought a 

CPO at that time. 

{¶10} Karen testified that after Gary left she gathered her two 

grandchildren, got in her car, and started to leave the property because of her 

concern over Gary’s mood. She had a loaded gun in the console of the car. 
Meigs App. No. 21CA5 5

However, as she was headed down her driveway, Gary and his wife appeared in 

front of her on an ATV. Gary stepped off the ATV and to the side and he said 

“there she is (Jelly), do what you need to do.” Karen understood Gary’s 

statement to mean “that I was supposed to shoot her.” Gary then returned to the 

ATV, sat on it for a moment, then got up and “put a round in his, um, firearm,” 

then re-holstered it. Karen claimed that scared her and the grandchildren.

{¶11} Jelly then walked home, and Gary came to the window of Karen’s 

vehicle, asked her to roll down the window to talk, but Karen refused. Gary then 

left the immediate area on foot for 10 or 15 minutes, but Karen could not tell 

whether he was still nearby or not.

{¶12} Karen testified that her daughter, Kaitlyn, then arrived on the 

“buggy,” which is similar to an ATV, and parked it behind Gary’s ATV. Karen 

claimed that Kaitlyn was also scared. Karen did not recall saying anything to 

Kaitlyn. Karen stated that she did not have cell service while sitting in the 

driveway. 

{¶13} Her son, Michael, was next to show up. He got out of his vehicle, 

and spoke to Karen. Karen explained to Michael through the car window that 

she was trying to leave but Gary had parked the ATV in front of her car which 

blocked her exit. 

{¶14} Karen estimated the ATV was about 3 feet wide, and her driveway 

was about 14.5 feet wide. However, she claimed that she could not drive around 

the ATV because there was a hillside on the left of the driveway, and trees and a 
Meigs App. No. 21CA5 6

creek to the right. She did not feel comfortable driving on the hillside with her 

grandchildren in the car. 

{¶15} After sitting in her car with her grandchildren in the driveway for 

quite some time, Gary moved both the ATV and buggy off the driveway and 

moved a tractor in their place. Eventually, after approximately two hours of 

sitting in the driveway, Karen opened her window slightly and Gary slid the 

tractor key through the window and told her to move the tractor. Karen claimed 

that she was afraid to get out and move the tractor. Gary returned to Karen’s 

car, and she passed the tractor key out the window. Gary then moved the 

tractor, and Karen was able to leave. She complained to the sheriff’s office that 

Gary had blocked her egress from her home and he “threatened me through the 

window and wanted to take me out to the back and...” Karen decided to stay 

with a friend for a few days. 

{¶16} On August 3, 2020 Karen returned to her trailer. That night Gary 

came over to Karen’s and brought “a bunch of stuff over from his residence that 

he didn’t know what to do with” for her to go through. When asked how she

could do this having just gone through such a harrowing occurrence, she 

explained that it had been her experience during their marriage that although 

Gary would get upset, he calmed down after a couple of days and be “pretty 

much back to normal.” However, she claimed that “something was still different” 

about Gary. Karen and the children went through the things that Gary brought 

over. Karen described Gary as “very cordial, nice, um, good demeanor.” While 
Meigs App. No. 21CA5 7

he was there, Gary fixed the faucet in Karen’s trailer. Karen was in the trailer 

with the grandchildren while Gary was fixing the faucet. 

{¶17} At some point during that day, one of the children spotted what 

appeared to be a tracking device on Karen’s car. Karen took the device to the 

Meigs County Sheriff’s Office, which confirmed it was a tracking device. Karen 

claimed that Gary drove past the sheriff’s office while she was there. The sheriff 

then arrested Gary and he was charged with menacing by stalking. 

{¶18} When asked why she continued to have concerns regarding Gary 

and her safety, she testified that he drove the tractor within 12 feet of her car and 

stated “I don’t know what he is or isn’t going to do.” Karen maintained that Gary 

comes to her place but she does not go to his. She believed his stalking would 

continue. She stated that she did not feel safe going home because she “doesn’t 

know what’s going to happen,” and has not stayed in her trailer since August 

15th of last year. 

Sergeant Mohler

{¶19} Sergeant Mohler of the Meigs County Sheriff’s Office testified that 

on August 3, 2020, Karen came to the sheriff’s office to report that Gary had 

placed a tracker on her vehicle. He also testified that Karen claimed that Gary 

told her that a CPO is only paper and will not stop a bullet. Upon inspection, 

Mohler found a device on Karen’s vehicle that was labeled “Track I,” which he 

believed was a tracking device. He saw Gary drive by the office while Karen was 

there. With the assistance of another deputy, they stopped Gary, who admitted 
Meigs App. No. 21CA5 8

he had been tracking Karen. Sergeant Mohler confiscated Gary’s phone. He 

later learned that the tracking device was linked to Gary’s phone. 

{¶20} Based on the tracking device and Gary’s alleged statement to Karen 

that a CPO is just a piece of paper and it will not protect you, the state charged 

Gary with menacing by stalking and domestic violence. 

{¶21} Mohler admitted that he did not acquire a recorded or written 

statement from anyone, and therefore it was a “he said, she said [case].” He 

also testified that the tracking device alone was not a threat of bodily harm in and 

of itself.

Amber

{¶22} Amber is Karen and Gary’s adult daughter. Amber testified that on 

August 3, 2020 she was helping Karen go through clothes when Gary came over 

on an ATV with some things for Karen to sort through. Her sister, Kaitlyn, and 

Karen’s minor grandchildren were there as well. Amber told her mother that 

Kaitlyn saw Gary place a tracking device on Karen’s car. 

Michael

{¶23} Michael is Karen and Gary’s adult son. Michael testified that on July 

31, 2020 while he was fishing, his fiancé informed him of the situation at his 

mother’s residence regarding Gary blocking Karen from leaving her driveway. 

When Michael arrived at the property, the tractor with the hay-mower attached 

was parked parallel to the road in Karen’s driveway and Gary was on an ATV 

“across the road at the barn.” Karen was in her vehicle with her grandchildren, 
Meigs App. No. 21CA5 9

which was about ten feet from the tractor. Michael stated that with the tractor in 

its current location, Karen could not leave her driveway. 

{¶24} Michael first spoke to Gary who told him to “mind my own business.” 

He then spoke to Karen who informed him she was “scared.” But when asked on 

cross examination if he thought that Karen was scared for her life, he testified “A 

small part of me, yes. But a bigger part of me no.” 

{¶25} He looked for the tractor keys but could not find them. He also 

testified that one of the grandchildren was crying. Michael then told Karen that 

he did not want to get involved and gave her two options: call law enforcement, 

or he could tow the tractor out of the way. Michael was unaware that Karen did 

not have cell service. Michael then left the property and went home without 

contacting law enforcement. He testified that he “knew that [Karen] was ok.” 

Kaitlyn

{¶26} Kaitlyn is Karen and Gary’s daughter. At the time of these events 

she was a minor and resided with her father and his wife. On July 31, 2020 she 

was helping Karen “tear down siding and stuff on the building” in order to 

construct the new lean-to. Gary was also on Karen’s property that day clearing 

brush in order to set posts for the new lean-to. Gary left the property at some 

point that day because he was upset or rather he “looked upset.” Kaitlyn then 

testified that Karen told her to “get the f _ _ k off” her property because she 

(Karen) was upset at Gary. So Kaitlyn went back to Gary’s home. After Kaitlyn 

spoke to Gary about the incident, he and his wife left on an ATV heading back to 
Meigs App. No. 21CA5 10

talk to Karen. Shortly thereafter Kaitlyn followed Gary and his wife to Karen’s 

property in the “buggy” which is a slightly larger ATV. 

{¶27} Kaitlyn parked the buggy right behind Gary’s ATV in the driveway. 

The ATV was not blocking the driveway. Karen could have passed the ATV on 

the right or left. Kaitlyn asserted that Gary was trying to talk to Karen, who was 

in her vehicle. Kaitlyn testified that Gary was asking why Karen had treated 

Kaitlyn so poorly earlier. Karen then “blared out” that she (Kaitlyn) and Gary’s 

wife needed to leave her property. Gary then moved the ATV and buggy and put 

the tractor in its place, and then he left on the ATV with his wife. Gary was gone 

for about 15 minutes and then returned to Karen’s trailer on the ATV.

{¶28} Kaitlyn testified that neither Karen, nor the grandchildren appeared 

to be upset. Kaitlyn also testified that she also was not upset. Then Gary 

slipped the tractor key through the window of Karen’s vehicle and he headed for

the woods. While Gary was in the woods, his wife and Karen were having a 

conversation in which they were “apologizing to each other.” 

{¶29} When Gary returned, he asked Karen for the key to the tractor. 

Karen tossed the key out of the window of her vehicle into a pile of leaves and 

weeds. After about ten minutes Kaitlyn found the key and Gary moved the 

tractor, and everyone “went our separate ways.” Kaitlyn testified that Karen 

could have left at any time. 

{¶30} Although she was unsure of the exact date, Kaitlyn next saw Gary 

and Karen several days later at Karen’s trailer. They were going through boxes 

of family items that Gary had brought over from his house. 
Meigs App. No. 21CA5 11

{¶31} Kaitlyn admitted that she and Karen have a “love hate relationship.” 

She further maintained that she gets along better with her father because she is 

a “daddy’s girl.” 

Gary

{¶32} Gary denied threatening Karen, including Karen’s claim that he told 

her a CPO is merely a piece of paper and would not protect her. He did state 

that Karen threatened to harm his wife.

{¶33} On July 31, 2020, Gary was clearing brush on Karen’s property to 

allow the installation of the lean-to. Also on the property that day were Karen, 

Amber, Kaitlyn, and the grandchildren. Gary asked Karen if his wife (Jelly) could 

help, and claims that Karen responded: “don’t bring her over here, I’ll get my 

gun.” Gary then left on the ATV for home. 

{¶34} Gary testified that after being home for a short while, Kaitlyn came 

in and was crying. She told him that Karen had told her “to get the f_ _ k off her 

property.” Gary decided to go back to get to the “bottom of this,” and left with his 

wife headed for Karen’s property. As he pulled into the driveway, Karen was 

pulling out and both stopped their vehicles. Gary admitted that after he 

dismounted the ATV he chambered a round in his pistol, re-holstered it, and then 

went up to her vehicle and tried to talk to Karen. Gary claimed that he was trying 

to resolve the issue of Karen demanding everyone to stay off her property when 

in fact they (Karen and Gary) owned it jointly. He chambered the round in his 

pistol because Karen had previously threatened his wife. Karen refused to talk to

him so he went back and leaned on the ATV, and his wife attempted to talk to 
Meigs App. No. 21CA5 12

Karen. Gary further stated that Karen could have pulled her vehicle around him 

and the ATV. 

{¶35} Eventually, Gary moved the ATV and replaced it with the tractor, 

claiming that he parked it on his side of the property to symbolize that he owned 

half of the property. He admitted that it was childish to do so, but claims that he 

was not trying to block Karen from leaving. Gary also believed that Karen could 

have driven around the tractor. He then slid the key to the tractor in the window 

of Karen’s car so she could move it. 

{¶36} When Kaitlyn showed up, Gary took a walk in the woods. When he 

got back his wife and Karen were finishing a discussion, and his wife told him 

that she and Karen had apologized to each other. Gary asked Karen to give him 

back the tractor key, and he claims that she threw it into the weeds. After the key 

was found, he moved the tractor. 

{¶37} The next time Gary saw Karen was the following Monday, August 3, 

2020. He took her a check for his half of the property payment and some items 

from his house for her to go through. He also fixed the water faucet in her trailer, 

which Karen had asked him to fix. 

{¶38} Gary admitted that while he was there that day he placed a tracking 

device on Karen’s vehicle. He did so because Karen was not letting him see 

their grandchildren. He wanted to track her car so he would know where the 

grandkids were. He claimed that it was a mere coincidence that he passed by 

the sheriff’s office at the time that Karen was there lodging her complaint about 

Gary placing the tracking device on her vehicle. 
Meigs App. No. 21CA5 13

B. Trial Court’s Decision

{¶39} On July 29, 2021, the trial court issued an entry that stated: “The 

Court finds, based upon the evidence presented and admitted, that [Karen] did 

not prove facts which would allow the Court to issue a domestic violence civil 

protection order. The Court further finds that said Petition For Domestic Violence 

Civil Protection Order should be denied.” It is this judgment that Karen appeals.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DISMISSING KAREN’S PETITION SEEKING 

DOMESTIC VIOLENCE CIVIL PROTECTION ORDER

{¶40} Karen maintains that the trial court’s decision denying her petition to 

issue a CPO pursuant to R.C. 3113.31(A)(1)(ii) was either against the manifest 

weight of the evidence, or was an abuse of its discretion. She maintains that 

there is evidence that Gary’s “ ‘pattern of conduct’ [is] sufficient to satisfy R.C. 

2903.211 [menacing by stalking], and entitle [Karen] to a [CPO] pursuant to R.C. 

3113.31(A)(1)(a)(ii).” [12] In support of her argument, Karen cites the following 

specific testimony/evidence in her appellate brief: (1) Gary several times 

threatened to kill Karen’s boyfriend, (2) Gary sent text messages to Karen 

suggesting he was suicidal raising concerns for her safety, (3) Gary’s act of 

chambering a round in his firearm upon his arrival, (4) Karen’s refusal to engage 

in a discussion in the driveway, (5) Gary’s coming and going for two hours while 

Karen sat in her car in the driveway, (6) Gary replacing the ATVs with a larger 

tractor, (7) Gary placing a tracking device on Karen’s vehicle, (8) Gary appeared 

at the Meigs County Sheriff’s Office after Karen had arrived there to complain 

about the tracking device, (9) Gary’s phone was “pinned” to the tracking device, 
Meigs App. No. 21CA5 14

and (10) Karen testified that she decided to rent a place because she was 

concerned for her safety at home. 

{¶41} Karen maintains that her actions of remaining in her car, not 

brandishing her firearm and, not attempting to go around the ATV or tractor, 

“were thoroughly responsible.” 

{¶42} In a separate argument, Karen asserts that Gary’s placement of the 

tracking device on Karen’s vehicle and his use of the device to track Karen, 

independent of the other facts, constitutes a pattern of conduct that satisfies R.C. 

2903.211(A)(1), which in turn supports issuing a CPO pursuant to R.C. 

3113.31(A)(1)(a)(ii). Therefore, she maintains the trial court’s decision declining 

to issue the CPO was against the manifest weight of the evidence, or an abuse 

of its discretion.

{¶43} In response, Gary claims that our review permits us to reverse only 

if we find that the trial court abused its discretion in reaching its decision. Gary 

further maintains that Karen was required to prove that she was in “fear of 

imminent serious harm” or that Gary committed menacing by stalking as defined 

in R.C. 2903.211. 

{¶44} Gary asserts that the trial court’s judgment should be affirmed 

because Karen did not prove by a preponderance of the evidence that she was in 

imminent fear of physical harm. In support of this argument, Gary points out that 

(1) Karen wanted help from Gary installing a lean-to on July 31, 2020, (2) Karen 

wanted Gary to repair her water faucet on August 3, 2020 just days after the 

driveway incident, (3) Karen claimed that Gary threatened to shoot her six or 
Meigs App. No. 21CA5 15

seven times, but she could not give specific dates, no one else heard the threats, 

she did not report any to law enforcement, or file for a CPO, and Gary denied 

ever threatening to shoot or physically harm Karen, (4) Karen admitted that she 

made some type of statement about killing Gary’s wife that agitated Gary, (5) 

Kaitlyn testified that neither Gary’s ATV nor the buggy were blocking the 

driveway so as to keep Karen from leaving, (6) Michael did not take any action 

such as calling 911 regarding the driveway incident, (7) Kaitlyn testified that 

neither she nor Karen were upset or crying during the driveway incident, and (8) 

Karen testified that during their 37 years of marriage Gary would become 

agitated and then settle down. 

{¶45} Gary also maintains that his use of the tracking device to monitor 

Karen was not a pattern of conduct as defined in R.C. 2903.211(A)(1) which 

prohibits menacing by stalking. 

LAW

A. Standard of Review

{¶46} Gary maintains that our standard of review is whether the trial court 

abused its discretion. Karen on the other hand appears to be unsure whether it 

is an abuse of discretion or a manifest-weight-of-the-evidence review. “ ‘Our 

standard of review upon a challenge to a CPO depends upon the nature of the 

challenge to the CPO.’ ” Wootten v. Culp, 2017-Ohio-665, 85 N.E.3d 198, ¶ 8 

(4th Dist.), quoting Walters v. Walters, 150 Ohio App.3d 287, 2002-Ohio-6455, 

780 N.E.2d 1032, ¶ 9 (4th Dist.), citing Gooderham v. Patterson, 4th Dist. Gallia 

No. 99CA01, 1999 WL 1034472 (Nov. 9, 1999). Like the instant case, 
Meigs App. No. 21CA5 16

[w]hen the issue is whether a CPO should have been issued at 

all, we must determine whether the trial court's finding that the 

petitioner has shown by the preponderance of the evidence that 

the petitioner or petitioner's family or household members are in 

danger of the domestic violence is against the manifest weight of 

the evidence.

Martindale v. Martindale, 2017-Ohio-9266, 102 N.E.3d 19, ¶ 15 (4th Dist.), citing

Wootten at ¶ 18.

{¶47} In undertaking a manifest-weight-of-the-evidence review, “[w]e are 

guided by the presumption that the trial court's factual findings are correct 

because of the knowledge that 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.’ ” Henry v.

Henry, 4th Dist. Ross No. 4CA2781, 2005-Ohio-67, ¶ 14, quoting Seasons Coal.

Co. v. Cleveland, 10 Ohio St.3d 77, 79, 461 N.E.2d 1273 (1984). “[W]e thus 

defer to the trier of fact on these issues[.]” Wootten at ¶ 20, citing State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132. And the 

trier of fact is free to believe all, part, or none of any witnesses’ testimony. Id., 

citing State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. 

{¶48} Under a manifest-weight-of-the-evidence review, “[a]n appellate 

court will not reverse a trial court's judgment so long as it is supported by any 

competent, credible evidence going to all of the essential elements of the 

case.” Bugg v. Fancher, 4th Dist. Highland No. 6CA12, 2007-Ohio-2019, ¶ 9, 

citing C.E. Morris Constr. Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 

N.E.2d 578 (1978).
Meigs App. No. 21CA5 17

Under this highly deferential standard of review, a reviewing court 

does not decide whether it would have come to the same 

conclusion as the trial court. Rather, we are required to uphold the 

judgment so long as the record, as a whole, contains some 

evidence from which the trier of fact could have reached its 

ultimate factual conclusions.

Id., citing Seasons Coal Co., 10 Ohio St.3d 77, 79, 461 N.E.2d 1273 (1984). 

{¶49} Ultimately, a reviewing court should find a trial court's decision is 

against the manifest weight of the evidence only in the exceptional case in which 

the evidence weighs heavily against the decision. Wootten at ¶ 21, citing State

v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 330.

B. Civil Protection Order

{¶50} R.C. 3113.31 (E)(1) authorizes a court to issue a CPO, which 

requires the trial court to “find that the petitioner has shown by a preponderance

of the evidence that petitioner or petitioner's family or household members are in

danger of domestic violence.” Gooderham, 4th Dist. Gallia No. 99 CA 01, 1999 

WL 1034472, at *2 (Nov. 9, 1999), citing Felton v. Felton, 79 Ohio St.3d 34, 37, 

679 N.E.2d 672, at paragraph two of the syllabus, citing R.C. 3113.31(D). In 

pertinent part, R.C. 3113.31(A)(1) defines “domestic violence” as “the occurrence 

of one or more of the following acts against a family or household member: * * * 

committing a violation of section 2903.211 * * * of the Revised Code [.]” 

(Emphasis added.) 

{¶51} Karen alleges that Gary violated the elements of R.C. 2903.211, 

menacing by stalking, thereby justifying a CPO under R.C. 3113.31(E)(1). 
Meigs App. No. 21CA5 18

Menacing by Stalking, R.C. 2903.211

{¶52} R.C. 2903.211(A)(1), states that “[n]o 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.” 

1. Pattern Of Conduct

{¶53} R.C. 2903.211(D) states:

As used in this section:

(1) “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, or 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, directed at one or more persons employed by or 

belonging to the same corporation, association, or other 

organization. * * *.”

{¶54} As explained in Middletown v. Jones, 167 Ohio App.3d 679, 2006-

Ohio-3465, 856 N.E.2d 1003, ¶ 10 (12th Dist.),

Because the statute does not specifically state what constitutes 

incidents “closely related in time,” 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 of the case.” State v. Honeycutt, Montgomery App. 

No. 19004, 2002-Ohio-3490, 2002 WL 1438648, ¶ 26, citing State

v. Dario (1995), 106 Ohio App.3d 232, 238, 665 N.E.2d 759. 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, as appellant argues, “some of the persons 

actions may not, in isolation, seem particularly 

threatening.” Guthrie v. Long, Franklin App. No. 04AP-913, 2005–

Ohio–1541, 2005 WL 737402, ¶ 12; Miller v. Francisco, Lake App. 

No.2002–L–097, 2003–Ohio–1978, 2003 WL 1904066, ¶ 11.
Meigs App. No. 21CA5 19

[W]e will not substitute our judgment for that of the trier of facts, 

and hence, as the judgment of the trial court is supported by 

some competent, credible evidence going to all the essential 

elements of the case, we will not reverse as being against the 

manifest weight of the evidence.

Green v. Marconi, 11th Dist. Warren No. CA84-11-074, 1985 WL 7690, 

at *2 (Ohio Ct. App. July 29, 1985), citing Seasons Coal Co. v.

Cleveland, 10 Ohio St. 3d 77 (1984); C. E. Morris Co. v. Foley

Construction Co., 54 Ohio St. 2d 279 (1978).

2. Mental Distress

{¶55} R.C. 2903.211(D)(2) states:

“Mental distress” means any of the following:

(a) Any mental illness or condition that involves some temporary 

substantial incapacity;

(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.

{¶56} Such “ ‘[m]ental distress need not be incapacitating or debilitating.’ ”

A.V. v. McNichols, 2019-Ohio-2180, 137 N.E.3d 534, ¶ 22 (4th Dist.), quoting

McKinley v. Kuhn, 4th Dist. Hocking No. 10CA5, 2011-Ohio-134, ¶ 17. However, 

“ ‘mental distress for purposes of menacing by stalking is not mere mental stress 

or annoyance.’ ” Kuhn, at ¶ 17, quoting Caban v. Ransome, 7th Dist. Mahoning 

No. 08MA36, 2009-Ohio-1034, ¶ 29. Rather, an “[i]ncapacity [from a “mental 

illness”] is substantial if it has a significant impact upon the victim's daily life, such 

as causing a change in one's routine.” McNichols, at ¶ 22, citing Smith v.

Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 20 (4th Dist.). 
Meigs App. No. 21CA5 20

{¶57} “[E]xpert testimony is not necessary to establish mental distress.” 

Kuhn, at ¶ 17, citing Perry v. Joseph, Franklin App. Nos. 07AP-359, 07AP-360, 

and 07AP-361, 2008-Ohio-1107, at ¶ 8. “Instead trial court may rely on its 

knowledge and experience in determining whether the petitioner suffered mental 

distress.’ ” Id., citing Wunsch, at ¶ 20.

3. Mens Rea

{¶58} The culpable mental state for the issuance of a CPO is “knowing.” 

A person acts knowingly when, regardless of his purpose, “he is aware that his 

conduct will probably cause a certain result or will probably be of a certain 

nature.” R.C. 2901.22(B). “A person has knowledge of circumstances when he is 

aware that such circumstances probably exist.” Id. Therefore, “the issue is 

whether the offender acts when he or she is aware that their conduct will 

probably cause [the victim] mental distress[,] [or to believe that the offender will 

cause the victim “physical harm”], regardless of whether it was [the offender’s] 

purpose to cause that result.” McNichols, at ¶ 19, see also R.C. 2903.211(A)(1).

ANALYSIS

{¶59} Before engaging in our analysis, we find it necessary to address the 

trial court’s entry denying Karen’s petition for a CPO. Notably, it is devoid of 

analysis of the evidence presented at the hearing. Instead, it merely concludes 

that the evidence was insufficient to grant Karen’s petition for a CPO. “[B]ecause 

a lack of findings necessarily circumscribes appellate review, an appellate court 

will generally presume the trial court applied the law correctly and affirm if there 

is some basis in the record for doing so.” Law Office of Natalie F. Grubb v.
Meigs App. No. 21CA5 21

Bolan, 11th Dist. Geauga No. 2010-G-2965, 2011-Ohio-4302, ¶ 26, citing 

Fancher, 4th Dist. No. 06CA12, 2007-Ohio-2019, at ¶ 10. Thus, we must rely 

primarily upon the record for our review. 

{¶60} We begin our analysis by recalling Karen’s list of evidence that 

purportedly constitutes a “pattern of conduct” sufficient to satisfy the 

requirements of R.C. 2903.211: (1) Gary several times threatened to kill Karen’s 

boyfriend, (2) Gary sent text messages to Karen suggesting he was suicidal 

raising concerns for her safety, (3) Gary’s act of chambering a round in his 

firearm upon his arrival, (4) Karen’s refusal to engage in a discussion in the 

driveway, (5) Gary’s coming and going for two hours while Karen sat in her car in 

the driveway, (6) Gary replacing the ATVs with a larger tractor, (7) Gary placing a 

tracking device on Karen’s vehicle, (8) Gary appeared at the Meigs County 

Sheriff’s Office after Karen had arrived there to complain about the tracking 

device, (9) Gary’s phone was “pinned” to the tracking device, and (10) Karen

testified without challenge that due to safety concerns she decided to rent a 

place off the property where she had resided at the time of these events.

{¶61} The trial court was in the best position to evaluate the credibility of 

the witnesses. In the matter at hand, Karen testified that she could not recall 

where many of Gary’s threats occurred and she failed to report most of these 

threats to law enforcement. Even accepting for the sake of argument that the 

threats were credible, some of Karen’s actions and claims could be construed as 

being inconsistent with Gary knowing that he was causing her to believe he 

would physically harm her. For example, despite recent, purported threatening 
Meigs App. No. 21CA5 22

events, Karen asked, or at minimum permitted, Gary to help with certain tasks on 

her property on more than one occasion, i.e., he cleared brush on her property to 

construct the lean-to one day, and he repaired the faucet in her trailer on 

another. 

{¶62} Moreover, there was testimony that contradicted Karen’s testimony 

that Gary’s actions caused her or another to fear for her safety. For example, 

during the driveway incident, she testified that the grandchildren were crying, and 

she was scared. However, several witnesses testified that the grandchildren 

were not crying, and Karen’s son, Michael, when pressed, testified that he did not

really believe that Karen was scared at that time. 

{¶63} Additionally, testimony revealed that both Gary and Karen own 

firearms, both had a permit to carry a concealed weapon, and Gary typically 

carried his pistol with him most of the time. Consequently, Gary possessing his 

firearm on July 31 was not unusual. Further, after loading the round, Gary 

immediately re-holstered his pistol and did not remove it the remainder of the 

time that he was at Karen’s property that day. Finally, Karen testified that Gary

never tried to open the door to her vehicle or otherwise act in a violent manner 

toward Karen at that time. 

{¶64} Lastly, it is undisputed that Gary placed a tracking device on 

Karen’s vehicle that was paired with his phone and he drove by the sheriff’s 

office while Karen was there. However, as Sergeant Mohler opined, using a 
Meigs App. No. 21CA5 23

tracker might support a criminal stalking offense, but also admitted that the 

device alone is not a threat to cause bodily harm to a person.1 

{¶65} Based on the totality of the evidence, we find that there is some 

evidence to support that Gary did not engage in a pattern of conduct that he

knowingly caused Karen to believe that he would cause her physical harm.

Therefore, we find that the trial court judgment’s denying Karen’s petition is not 

against the manifest weight of the evidence. Accordingly, we overrule Karen’s 

sole assignment of error.

CONCLUSION

{¶66} Having overruled Karen’s assignment of error, we affirm the 

judgment of the trial court denying Karen’s petition for a CPO. 

JUDGMENT AFFIRMED.

 

1

In her petition for the CPO, Karen made no express claim, and presented no evidence that she 

suffered from “mental distress,” including any “incapacity” or “mental illness” for purposes of a 

CPO. See R.C. 2903.211(D); McNichols, 137 N.E.3d 534, ¶ 22 (4th Dist.). Her appellate brief 

also makes no such allegations. Rather, her petition and brief pertain to a concern of physical 

harm from Gary. Nevertheless, we find the evidence that supports the trial court’s denial of 

Karen’s petition for a CPO on the basis that she was not in fear that Gary would physically harm 

her, also supports that she did not suffer any mental incapacity or illness.
Meigs App. No. 21CA5 24

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay 

the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the 

Meigs County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the 

date of this entry.

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

27 of the Rules of Appellate Procedure. 

Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________

 Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.