[Cite as Ferguson v. Ferguson , 2021-Ohio-297.]

COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

ANGELEA FERGUSON, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, J. -vs- : : SHAWN A. FERGUSON, : Case No. 20AP0004 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court of Common Pleas, Case No. 2019DV0200

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 3, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

JANA C. WOODBURN KRISTOPHER K. HILL 214 W. Liberty Street 17 N. 4th Street McConnelsville, Ohio 43756 Zanesville, Ohio 43701Morgan County, Case No. 20AP0004 2

Baldwin, J. {¶1} Defendant-appellant Shawn Ferguson appeals from the June 18, 20 20 Journal Entry of the Morgan County Court of Common Pleas granti ng a Domestic Violence Civil Protection Order to plaintiff-appellee Angelea F erguson.

STATEMENT OF THE FACTS AND CASE {¶2} On October 10, 2019, a deputy responded to a call of a domestic violence dispute at the home of the parties and appellant was detained a nd arrested. Appellant was charged with domestic violence. {¶3} On October 10, 2019, appellee had filed a Petition for a Domest ic Violence Civil Protection Order against appellant pursuant to R.C. 3113. 31. Appellee also sought relief on behalf of the parties’ young son. An ex parte Domesti c Violence Civil Protection Order was filed on October 10, 2019. A final hearing was held o n June 2, 2020. {¶4} At the hearing, appellee testified that appellant was her husba nd and that they had been married since December 29, 2016. She testified th at she was living with appellant on October 10, 2019 and that the relationship between the two was “[t]umultuous.” Transcript at 7. She testified that appellant w as sometimes full of rage and would yell at her and throw stuff at her. She testified that sh e had a coffee cup, a coffee pot and a plate thrown at her and that appellant had thrown a plate at her and her son once. While none of the items hit her, she testified that she w as afraid when the items were coming at her. {¶5} On October 10, 2019, appellee woke up around 5:00 a.m. for work . She had fallen asleep on the bed with her two sons and appellant slept on the sofa or in the guest room. While her oldest son, who was eight years old, is not app ellant’s son, appellant isMorgan County, Case No. 20AP0004 3

the father of her youngest son, who was two and a half years ol d. When appellee got up, appellant came in and laid in bed with the boys. Appellee testi fied that her oldest son wanted to go into his room and that appellant told him no. Afte r she told her son to go ahead, appellant got frustrated and the two started arguing. Ap pellant then woke up their son by picking him up and the two started arguing and fighting. {¶6} Appellee finally got their son back and when she tried to leave through the bedroom door, appellant would not let her. Appellant, appellee testified, did not want her to leave with both the kids and started pulling on the child th at she was holding causing marks on his back. Appellee was finally able to get out of the room and called the police. {¶7} Appellee testified that during the argument, appellant did not hit her or throw anything at her and that she did not recall him threatening her . Only the two-and-a-halfyear-old was injured. Appellee testified that appellant was yan king the child while she held him, causing abrasions on his lower back from the diaper. Appellee took a photograph of the child’s lower back a couple of days later. S he testified that he did not have any marks on his backside prior to this incident and had n ot been harmed by appellant in any way before. Appellee testified that appellant had grabbed her before countless times when she was trying to leave. She testified tha t he had not done any other physical harm to her in the past and had not threatened h er verbally but that if he was mad and did not want her to leave, “he’s like body checking me and blocking me from leaving, I personally take that as a threat.” Transcript a t 15. Appellant would “take his chest and keep pushing it into me and pushing it into me un til I’m, like, backed into, like a corner or stuck somewhere.” Transcript at 15. Appellee t estified that appellant had caused property damage and had busted their kitchen door by elb owing it or punching itMorgan County, Case No. 20AP0004 4

out and had caused other property damage by throwing things. Wh en asked, she testified that she was afraid of appellant because of “[a]ll of these exp eriences combined.” Transcript at 16. She testified that she was asking for the Ci vil Protection Order because she was scared that if she did not have one “he’s going to barg e back in hot in his emotions because it’s already happened before.” Transcript at 1 6. Appellant had texted her once during the Civil Protection Order because he thought t hat the charges were dropped and had spoken to her twice. {¶8} Appellee testified that appellant was charged after the October 10, 2019 incident but was not found guilty. The following testimony was adduced when she was asked if anything happened after that trial: {¶9} A. That night he showed up to the house ‘cause he thought all the charges were dropped so he showed up with one of the town cops, Ferguso n. And my mom FaceTimed me because I was working nights at the time, and Shaw n [appellant] tried charging into the house. He was saying how he’s going to conta ct his lawyer and evict my mom. My mom asked him to calm down because my oldest son wa s there ‘cause he was crying. He said he didn’t c are. So I had to leave work ea rly to come home. {¶10} Transcript at 18. {¶11} Appellee testified that she told her sister once or twice about the incidents and that she believed that serious physical harm would happen t o her if she did not have

the Civil Protection Order and that she did not feel safe. {¶12} On cross-examination, appellee testified that prior to October 10, 2019, she and appellant had argued and he had accused her of being unfait hful. She agreed that she had admitted under oath during appellant’s trial that she h ad cheated on appellantMorgan County, Case No. 20AP0004 5

and that he had never threatened her before. Appellee testified that on October 10, 2019, appellant did not hit her or intend to hit her, did not strike her, and did not verbally threaten her. She further testified that she admitted that, on October 10, 2019, the struggle over their young son was because appellant did not want her to take the child and that appellant was not trying to hurt their son. Appellee testified that appellant was a good

father who cared a lot for his son. {¶13} On redirect, appellee testified that she filed for divorce shor tly after the incident over concerns about safety for her and the children. S he testified that she did not use the court proceedings to try to take advantage of her child ren’s’ fathers and did not use the court to get what she wanted. {¶14} Appellant testified that he never struck appellee, never hit he r and never threatened her. He admitted throwing stuff, but testified that he did not throw stuff at her so as to hit her. He testified that he threw his phone at the w all causing a gash in the wall and pushed a coffee pot off of an island, causing it to fall to the ground and break. He testified that he did not intend to cause physical harm to thei r son that day, but wanted their son to stay there with him. When asked, he testified that he never had done anything to try to cause physical harm to appellee and that he believed that appellee had filed the motion to get what she wanted in the divorce. He testified that the mark on the child’s lower back happened three days prior to the incident. {¶15} On cross-examination, appellant testified that he raised his vo ice a lot and that he agreed that someone might be scared if they saw someone throw a phone against the wall. He testified that he intentionally knocked the coffee pot off of the counter and that he thought that might scare someone. He denied ever physically blocking appellee fromMorgan County, Case No. 20AP0004 6

leaving a room or grabbing ahold of appellee but later testifie d that he blocked the kitchen doorway to keep appellee from taking their son. The following i s an excerpt from appellant’s testimony: {¶16} Q. So you blocked the doorway. Do you think that could threate n or intimidate someone if you stand in a doorway and you don’t let them escape? {¶17} A. Yes. Well, I did end up letting her leave, though. I let her leave ‘cause then she would get in her car and she went to the parking lot t o cool down, come back. I always let her leave. She always took - - when this would happ en, she always left. {¶18} Q. So you let her leave so you control when she can leave? {¶19} A. I didn’t let her leave, but you just said that I would stan d in front of the doorway so then, therefore, I would move out of the way to let her leave, yeah. {¶20} Transcript at 42-43. {¶21} Bruce Ferguson, Sr., appellant’s father, testified that he baby sat the parties’ son from time to time and that the child got the mark on his lo wer back from a trampoline a week or so before the October 10, 2019 incident. He testified that appellant never did anything to hurt his son. He testified on cross-examination th at he never saw appellant throw anything and that the parties’ son got the marks from toy s on the trampoline. {¶22} At the conclusion of the hearing, the court, pursuant to a Jour nal Entry filed on June 2, 2020, ordered that each party submit Proposed Findi ngs of Fact and Journal

Entries within two weeks. {¶23} On June 5, 2020, appellee filed a motion asking that the court modify the ex parte Domestic Violence Civil Protection Order to remove the pa rties’ minor child as aMorgan County, Case No. 20AP0004 7

protected party. As memorialized in a Journal Entry filed on J une 10, 2020, the motion was granted. {¶24} The trial court, via a Journal Entry filed on June 18, 2020, gr anted the

Domestic Violence Protection Order and ordered that it remain i n effect, as modified, for a period of five years. {¶25} Appellant now appeals, raising the following assignment of erro r on appeal: {¶26} “I. THE TRIAL COURT ERRED IN ISSUING A CIVIL PROTECTION ORDER, BASED UPON R.C. 3113.31, AS THE APPELLEE FAILED TO ESTAB LISH, BY A PREPONDERANCE OF THE EVIDENCE, SUFFICIENT CREDIBLE EVIDENCE T HAT

APPELLANT ENGAGED IN ACTS OR THREATS OF DOMESTIC VIOLENCE. THER E

WAS NO INCIDENT OF DOMESTIC VIOLENCE BETWEEN THE PARTIES TO

SUPPORT A FINDING THAT APPELLEE WAS IN IMMINENT DANGER OF DOMES TIC

VIOLENCE AT THE TIME OF THE FILING OF THE PETITION.”

I {¶27} Appellant, in his sole assignment of error, argues that appelle e failed to establish, by a preponderance of the evidence, sufficient evide nce that appellant had engaged in acts or threats of domestic violence and that there was no incident of domestic violence between the parties to support a finding that appellee was in imminent danger

of domestic violence at the time of the filing of the petition. We disagree. {¶28} Pursuant to R.C. 3113.31, in order to obtain a domestic violenc e CPO, the petitioner must prove by a preponderance of the evidence the re spondent has engaged in an act of domestic violence against petitioner or petitioner 's family or household

members. Felton v. Felton , 79 Ohio St.3d 34, 679 N.E.2d 672 (1997). As defined by R.C.Morgan County, Case No. 20AP0004 8

3113.31(A)(1), the phrase “domestic violence” means the occurre nce of one or more of the following acts against a family or household member: {¶29} (a) Attempting to cause or recklessly causing bodily injury; {¶30} (b) Placing another person by threat of force in fear of immin ent serious physical harm or committing a violation of section 2903.211 [me nacing by stalking] or 2911.211 [aggravated trespass] of the Revised Code; {¶31} (c) Committing any act with respect to a child that would resu lt in the child being an abused child, as defined in section 2151.031 of the Re vised Code; {¶32} (d) Committing a sexually oriented offense. {¶33} The decision whether to grant a civil protection order lies wit hin the sound

discretion of the trial court. Singhaus v. Zumbar , 5th Dist. Tuscarawas No. 2015AP020007, 2015-Ohio-4755. Therefore, an appellate court sho uld not reverse the

decision of the trial court absent an abuse of discretion. In o rder to find an abuse of discretion, this court must determine that the trial court's de cision was unreasonable, arbitrary or unconscionable and not merely an error of law or j udgment. Blakemore v.

Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶34} In State v. Awan , 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), the Ohio Supreme Court noted the choice between credible witnesses and t heir conflicting testimony rests solely with the finder of fact, and an appellat e court may not substitute its judgment for that of the fact finder. A trial court is in a muc h better position than an appellate court to weigh the evidence, because it views the wit nesses and observes their demeanor, gestures, and inflections. See Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). The fact finder is free to believe all, part, or none of theMorgan County, Case No. 20AP0004 9

testimony of each witness. See State v. Caldwell , 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Therefore, a judgment supported by competent and credible evidence going to all the elements of the case generally will not be dis turbed by a reviewing court.

See Masitto v. Masitto , 22 Ohio St.3d 63, 488 N.E.2d 857 (1986). {¶35} In Watts v. Watts , 5th Dist. Fairfield No. 13-CA-63, 2014-Ohio-1901, we cited to the Tenth District's analysis necessary to determine w hether to grant a domestic

violence CPO: Civil protection orders are intended to prevent violence before it happens. Young v. Young , 2d Dist. No.2005-CA-19, 2006-Ohio-978, ¶ 105. Where a trial court grants a CPO based on a petitioner's fear o f imminent serious physical harm, the critical inquiry under [R.C. 3113.31 ] is whether a reasonable person would be placed in fear of imminent (in the s ense of unconditional, non-contingent), serious physical harm. Fleckner v. Fleckner , 10th Dist. Franklin No. 98AP-1213, quoting Strong v. Bauman , (May 21, 1999), 2d Dist. No. 17256. Threats of violence constitute domestic violence for the purpos es of R.C. 3113.31 if they fear resulting from those threats is

reasonable. Fleckner at ¶ 21, quoting Lavery v. Lavery (Dec. 5, 2001), 9th Dist. No. 20616, appeal not allowed (2002), 95 Ohio St.3d 1409 (internal quotation marks omitted). The reasonableness of the fear should be determined with reference to the history between the petitioner and the respondent. Id. , quoting Gatt v. Gatt (April 17, 2002), 9th Dist. No. 3217-M,Morgan County, Case No. 20AP0004 10

citing Eichenberger v. Eichenberger , (1992), 82 Ohio App.3d 809, 613

N.E.2d 678. Courts use both a subjective and an objective test in determini ng the reasonableness of the petitioner's fear. The subjective test in quires whether the respondent's threat of force actually caused the petitioner to fear imminent serious physical harm. Fleckner at ¶ 23 (collecting case). By contract, the objective test inquires whether the petitioner's fear is

reasonable under the circumstances. Id. Strassel v. Chapman , 10th Dist. Franklin No. 09AP-793, 2010-Ohio-4376, paragraphs 7-

9. {¶36} Further, trial courts may take every action into consideration, even if some actions in isolation would not seem particularly threatening. McElroy v. McElroy , 5th Dist. Guernsey No. 15 CA 27, 2016-Ohio-5148. Evidence of past abuse i s relevant and may be an important factor in deter mining whether there is a reason able fear of further harm; however, even with past abuse, there must be some competent, cr edible evidence that there is a present fear of harm. Solomon v. Solomon , 157 Ohio App.3d 807, 2004–Ohio– 2486, ¶ 23 (7th Dist.). The reasonableness of fear should be de termined with reference to the history between the petitioner and respondent. Fleckner v. Fleckner , 10th Dist. Franklin No. 07AP-988, 2008-Ohio-4000. {¶37} Appellant specifically contends that there was insufficient evi dence that appellant was in imminent danger of domestic violence at the ti me of the filing of the petition. He argues that appellee failed to show by a preponder ance of the evidence that

domestic violence had occurred.Morgan County, Case No. 20AP0004 11

{¶38} Upon our review of the record, we find that there was sufficien t evidence that appellant attempted to cause physical harm to appellee and that appellee did not fail to show by a preponderance of the evidence that domestic violen ce occurred. In the case sub judice, there was testimony that appellant aggressivel y attempted to grab the parties’ minor child out of appellee’s arms. There was testimon y that appellant had thrown items at appellee in the past and had grabbed her from behind c ountless times to restrain her physically. We find that appellee had a reasonable fear of future harm from appellant. The trial court, as trier of fact, was in the best position to assess credibility. {¶39} Appellant’s sole assignment of error is, therefore, overruled. {¶40} Accordingly, the judgment of the Morgan County Court of Common Pleas is

affirmed. By: Baldwin, J. Delaney, P.J. and Wise, Earle, J. concur.