[Cite as Prater v. Mullins, 2013-Ohio-3981.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

HEATHER D. PRATER, 

 PETITIONER-APPELLEE, CASE NO. 2-13-04 

 v. 

SHAWN E. MULLINS, O P I N I O N 

 RESPONDENT-APPELLANT. 

 

Appeal from Auglaize County Common Pleas Court 

Civil Division 

Trial Court No. 2012-CV-336 

Judgment Reversed and Cause Remanded 

Date of Decision: September 16, 2013 

 

APPEARANCE: 

William E. Huber for Appellant 

 
Case No. 2-13-04 

-2- 

PRESTON, P.J. 

{¶1} Respondent-appellant, Shawn E. Mullins (“Mullins”), appeals the 

January 4, 2013 judgment of the Auglaize County Court of Common Pleas, 

granting the request of petitioner-appellee, Heather D. Prater (“Heather”), for a 

civil stalking protection order (“CSPO”) protecting Heather, her husband, Brian 

Prater (“Brian”), and her two sons, D.P. and J.O. On appeal, Mullins argues that 

the trial court abused its discretion by issuing a 500-foot no-contact order and by 

giving the CSPO a four-year duration. Mullins also argues that there was 

insufficient evidence to support the CSPO. For the reasons that follow, we 

reverse. 

{¶2} On December 20, 2012, Heather filed a petition for a CSPO against 

Mullins. In the petition, Heather alleged that Mullins “caused mental distress to 

[her] family by posting cruel and threatening directed [sic] to my family everyday 

on Facebook” and by following and yelling things at D.P. (Doc. No. 1). That 

same day, the trial court issued an ex parte CSPO, effective until January 20, 2013, 

and set the matter for a January 2, 2013 hearing on the merits. (Doc. No. 5). 

{¶3} The trial court held the hearing as scheduled on January 2, 2013. (Jan. 

2, 2013 Tr. at 3). Heather and Mullins and his counsel were present at the hearing. 

(Id.). Brian, D.P., and J.O. were not present and did not testify. (See id.). The 

trial court that day issued a mostly handwritten CSPO against Mullins, effective 

until January 2, 2017, protecting Heather, Brian, D.P., and J.O. (Doc. No. 11). 
Case No. 2-13-04 

-3- 

The trial court found that Mullins “threatened and harassed members of 

[Heather’s] family and is [sic] entitled to a CSPO, having caused mental distress 

as defined in the statute.” (Id.). Two days later, on January 4, 2013, the trial court 

issued a CSPO nunc pro tunc, which was typewritten and added an order that 

Mullins “not post any item on any social network (facebook, twitter, etc.) or 

medium concerning [Heather] or protected persons.” (Doc. No. 15). 

{¶4} Mullins filed his notice of appeal on January 23, 2013. (Doc. No. 21). 

He raises three assignments of error for our review.1

 Because it is dispositive, we 

address Mullins’ third assignment of error. 

Assignment of Error No. III 

The trial court erred in granting the stalking order as there is 

insufficient evidence to support the same. 

{¶5} “When reviewing a trial court’s decision to grant a civil protection 

order, we will not reverse the decision absent an abuse of discretion.” Retterer v. 

Little, 3d Dist. Marion No. 9-11-23, 2012-Ohio-131, ¶ 23, citing Van Vorce v. Van 

Vorce, 3d Dist. Auglaize No. 2-04-11, 2004-Ohio-5646, ¶ 15. “An abuse of 

discretion suggests the trial court’s decision is unreasonable, arbitrary, or 

unconscionable.” Goldfuss v. Traxler, 3d Dist. Wyandot No. 16-08-12, 2008-

Ohio-6186, ¶ 8, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

 

1

 Heather has failed to file an appellee’s brief in this case. Under those circumstances, App.R. 18(C) 

provides that 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.” Heilman v. Heilman, 3d Dist. 

Hardin No. 6-12-08, 2012-Ohio-5133, ¶ 16. 
Case No. 2-13-04 

-4- 

“Further, if there is some competent, credible evidence to support the trial court’s 

decision regarding a CSPO petition, there is no abuse of discretion.” Retterer at ¶ 

23, citing Warnecke v. Whitaker, 3d Dist. Putnam No. 12-11-03, 2011-Ohio-5442, 

¶ 12. 

{¶6} R.C. 2903.214 governs the issuance of a CSPO. Under that section, a 

person may seek civil relief for themselves, or on behalf of a family or household 

member, against an alleged stalker by filing a petition that alleges “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.” R.C. 2903.214(C)(1). R.C. 2903.211—Ohio’s menacing-by-stalking 

statute—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 cause mental distress to the other person.” R.C. 

2903.211(A)(1). 

{¶7} “To be entitled to a CSPO, the petitioner must show by a 

preponderance of the evidence that the respondent engaged in a violation of R.C. 

2903.211 * * * against him or her.” Retterer at ¶ 25, citing Warnecke at ¶ 13. In 

other words, the petitioner must establish by a preponderance of the evidence that 

the respondent (1) engaged in a pattern of conduct (2) that the respondent knew (3) 

would cause the person to be protected under the CSPO to believe that the 
Case No. 2-13-04 

-5- 

respondent would cause the person physical harm or mental distress. (Emphasis 

sic.) Retterer at ¶ 26, citing R.C. 2903.211. 

{¶8} “[W]here the petitioner seeks protection of a ‘family or household 

member’ under a CSPO, the petitioner must show by a preponderance of the 

evidence that the respondent engaged in a violation of R.C. 2903.211 against the 

‘family or household member’ to be protected.” Retterer, 2012-Ohio-131, at ¶ 25, 

citing Luikart v. Shumate, 3d Dist. Marion No. 9-02-69, 2003-Ohio-2130, ¶ 11 

(holding that there was sufficient evidence that respondent engaged in a pattern of 

conduct against petitioner, but insufficient evidence as to petitioner’s wife and 

children, who petitioner listed as persons to be protected under the CSPO). See 

also Woodward v. Head, 1st Dist. Hamilton No. C-120341, 2013-Ohio-1127, ¶ 8-9 

(holding that petitioner presented sufficient evidence to support the issuance of the 

CSPO covering petitioner’s daughter, but insufficient evidence as to petitioner, 

who had “minimal” contact with the respondent, and as to petitioner’s husband);

Holloway v. Parker, 3d Dist. Marion No. 9-12-50, 2013-Ohio-1940, ¶ 35 (holding 

that petitioner presented insufficient evidence to support the issuance of the CSPO 

covering petitioner, petitioner’s wife, and their three minor children). 

{¶9} In other words, a petitioner may not obtain a CSPO covering the 

petitioner and the petitioner’s family or household members simply by presenting 

evidence as to one of the persons to be covered. See Retterer at ¶ 25. Rather, the 

petitioner must present evidence that the respondent engaged in a pattern of 
Case No. 2-13-04 

-6- 

conduct that the respondent knew would cause each person to be protected under 

the CSPO to believe that the respondent would cause the person physical harm or 

mental distress. Id. See also R.C. 2903.214(C)(1) (requiring that a petition for a 

CSPO contain an allegation that the respondent “engaged in a violation of section 

2903.211 of the Revised Code against the person to be protected by the protection 

order” (emphasis added)). Of course, the same evidence may establish the 

elements of R.C. 2903.211(A)(1) as to multiple persons to be protected under a 

CSPO—for example, in the case of a pattern of conduct directed at multiple 

persons. See, e.g., Retterer at ¶ 32. 

{¶10} We conclude that the trial court abused its discretion in granting the 

CSPO because there was not some competent, credible evidence to support its 

decision. We first address the CSPO as to Brian. Even assuming Heather 

established that Mullins engaged in a pattern of conduct against Brian and that 

Mullins acted knowingly, she failed to satisfy the third element required under 

R.C. 2903.211—that Mullins caused Brian to believe that Mullins would cause 

Brian physical harm or mental distress. See Retterer at ¶ 39, citing Warnecke at ¶ 

14. 

{¶11} The trial court judge asked Heather whether she believed Mullins 

wanted to do her harm and whether she believed Mullins wanted to beat either her 

or her husband: 
Case No. 2-13-04 

-7- 

[TRIAL COURT]: Do you really believe that either of you wants to 

do each other harm? 

[MULLINS]: No. 

[HEATHER]: Yes, Sir. 

[TRIAL COURT]: You really believe he wants to beat you up or 

beat up your husband? 

[HEATHER]: No, Sir. 

(Jan. 2, 2013 Tr. at 43). 

{¶12} Neither this exchange nor any other testimony or evidence in the 

record suggests that Brian believed Mullins would cause him physical harm or 

mental distress. Therefore, the trial court abused its discretion in granting the 

CSPO as to Brian. 

{¶13} The trial court also abused its discretion in granting the CSPO as to 

Heather, D.P., and J.O. because Heather presented no evidence demonstrating that 

Mullins engaged in conduct constituting menacing by stalking as to her and her 

sons. When she filed her petition, Heather alleged that Mullins had yelled things 

at D.P. while Mullins followed D.P. (Doc. No. 1). At the hearing, however, 

Mullins testified that it was Mullins’ son’s friend—not Mullins—who followed 

and yelled things at D.P. out of Mullins’ Jeep. (Jan. 2, 2013 Tr. at 20-22). 

Mullins was not even in the vehicle at the time. (Id. at 19). Heather did not refute 

that testimony. 
Case No. 2-13-04 

-8- 

{¶14} As for Mullins’ threatening Facebook statements, he testified that 

they were directed at Brian, and a plain reading of the statements indicates that 

they were. (Id. at 26-27); (Court’s Ex. A). Mullins also testified that after Brian 

saw his Facebook statements, Brian called Mullins and asked whether Mullins’ 

statements were directed at Brian and his family. (Jan. 2, 2013 Tr. at 27). Mullins 

testified that he told Brian the statements were not directed at Brian’s family. 

(Id.). Therefore, there was not competent, credible evidence supporting the trial 

court’s conclusion that Heather and her sons were entitled to a CSPO against 

Mullins, and the trial court abused its discretion in granting one. 

{¶15} Mullins’ third assignment of error is therefore sustained. 

Assignment of Error No. I 

The trial court abused it’s [sic] discretion in issuing a 500 foot no 

contact order. 

Assignment of Error No. II 

The trial court abused it’s [sic] discretion in setting a date of 

four years for the duration of the stalking order as no credible 

evidence was introduced to support this length of time. 

{¶16} In his first assignment of error, Mullins argues that the trial court 

abused its discretion by ordering that he stay at least 500 feet away from Heather, 

Brian, D.P., and J.O. In his second assignment of error, Mullins argues that the 

trial court abused its discretion by ordering that the CSPO remain in effect for four 

years, until January 2, 2017. 
Case No. 2-13-04 

-9- 

{¶17} In light of our decision that the trial court abused its discretion when 

it granted the CSPO, Mullins’ remaining assignments of error have been rendered 

moot, and we decline to address them. App.R. 12(A)(1)(c). 

{¶18} Having found error prejudicial to the appellant herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI and ROGERS, J.J., concur. 

/hlo