[Cite as Spaulding v. Spaulding , 2021-Ohio-533.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Daniel Spaulding Court of Appeals No. L-20-1102 Appellee Trial Court No. DV 2017-0621

v. Keith Spaulding DECISION AND JUDGMENT Appellant Decided: February 26, 2021

* * * * * Douglas A. Wilkins, for appellant.

* * * * * PIETRYKOWSKI, J. {¶ 1} Appellant, Keith Spaulding, appeals the judgment of the Lucas C ounty Court of Common Pleas, Domestic Relations Division, issuing a d omestic violence civil protection order on behalf of appellee, Daniel Spaulding. 1

1 Appellee has not filed a brief in this appeal.2. Facts and Procedural Background {¶ 2} On October 16, 2017, appellee filed a petition for domestic vio lence civil protection order, pursuant to R.C. 3113.31, stating that he fea red for his safety, as appellant—appellee’s father—had engaged, and was continuing to engage, in various acts of domestic violence. Specifically, appellee alleged: From 11/20/16-10/07/17 [appellant] is stalking [appellee]. [Appellant] sits outside [appellee’s] home and blocks him from leaving the driveway. [Appellant] chased [appellee] down the road when [ap pellee] was on his way to the doctor. [Appellant] sat in the parking l ot of the doctor’s office. Staff from the doctor’s office had to walk [a ppellee] to his car. * * * [Appellant] also told [appellee] that he was going t o “extinguish” him. [Appellant] also told [appellee] that he was going to kil l him and his family. [Appellant] has pointed a gun at [appellee] in the past. [Appe llant] also told [appellee] that when [appellee] was assaulted and hos pitalized several years ago, that [appellant] arranged the attack on him. {¶ 3} A consent agreement and domestic violence civil protective orde r was entered, pursuant to R.C. 3113.31, on January 30, 2018, effecti ve through January 25, 2020. One of the requirements of the protective order was that appellant was to stay at least 500 feet away from appellee. In November of 2018, appell ant was convicted in the Sylvania Municipal Court, case No. CRB-18-00906, for violating the protective order.3. Respondent was given one year of probation, served 30 days with electronic monitoring, and attended anger management. {¶ 4} On December 17, 2019, appellee made a pro se request to the tri al court to extend or renew the consent agreement and domestic violence civ il protection order beyond January 25, 2020, stating: “RESPONDENT HAS BEEN CHARGED &

CONVICTED OF VIOLATING THE ORDER CASE # CRB 1800906 VIO TPO

SYLVANIA COURT.” {¶ 5} Hearing on the motion was held before a magistrate on January 6 , 2020. At the hearing, appellee, in response to the magistrate’s inquiry about the circumstances that brought appellee to file the renewal, testified as follows: I would like to get a renewal just because there has been a vio lation that [appellant] was convicted on. There’s still an amount of fear. * * * [H]e was recently released off of probation and since then things have already started to happen again. For example, there was * * * my in-laws

* * * there was a funeral last Friday and he showed up to that, and my family called me and told me don’t come to that because he is present. But it was actually my in-laws, no relation to him whatsoever.

And there’s just an ongoing fear that this is gonna start right up. He’s violated numerous times and only been convicted on the one offense, so. I would just say for my own peace and my family’s peace, * * * I believe I’m the sixth immediate family member that has had a protection4. order on Keith, * * * I want to say in the past ten years. A couple no contact orders as well with immediate family.

So * * * there’s a deep history of violence and I know it’s going to be ongoing. So it is a fear and that’s * * * the reason why I would like to get it extended for my own safety. (Emphasis added.) {¶ 6} Appellee further testified, on redirect examination, regarding appellant’s conduct in connection with the sale of certain real property th at belonged to appellee and was located adjacent to appellant’s property. Specifically, ap pellee stated: Yes. There was contact in 2019. * * * I did sell my property i n 2019. * * * [Y]es, there was contact through my realtor. * * * [M]y realtor * * * almost dropped my listing because of the harassment from Keith. * * * [T]he property almost didn’t sell because of Keith. * * * I’m going back to 2018 on the thing I was just about to say. So that wou ld have been in 2018, but the sheriffs at the end of 2018 came out to the pr operty because

Keith was there. {¶ 7} After hearing the foregoing testimony, the magistrate issued fi ndings of fact and conclusions of law, and, further, issued an order extending the protection order against appellant for a period of one year. Appellant filed ob jections to the magistrate’s order. A judge found appellant’s objections not well-taken, an d denied the same by written entry dated May 26, 2020, concluding that appellant “en gaged in a pattern of5. conduct that caused [appellee] to fear for his safety and knowi ngly caused him mental distress as prohibited by R.C. 2903.211(A)(1).” Appellant time ly filed a notice of appeal on June 22, 2020. Assignment of Error {¶ 8} Appellant assigns the following as his sole error for our revie w: I. The Lower Court Abused Its Discretion in that the Evidence offered by Appellee in Support of Extending the CPO was Insuffi cient and/or Against the Manifest Weight of the Evidence, and, additi onally, Violated His Right Not to [be] Punished Twice for the same offe nse. Analysis {¶ 9} Ohio law provides that a protection order issued pursuant to R. C. 3113.31 may be renewed in the same manner as the original order or agre ement was issued or approved. R.C. 3113.31(E)(3)(c). Renewal of such a protection order requires “a new finding of domestic violence, or threat thereof * * * to justif y issuance of what amount[s] to an effectively new [protection order].” Lundin v. Niepsuj , 9th Dist. Summit No. 28223, 2017-Ohio-7153, ¶ 18. {¶ 10} This court, in Olson v. Olson , 6th Dist. Wood No. WD-15-002, 2016-Ohio149, set forth the standard for granting a civil protection ord er, as follows: “When granting a protection order, the trial court must find th at petitioner has shown by a preponderance of the evidence that petitioner or petitioner’s family or household members are in danger of domes tic6. violence. R.C. 3113.31(D).” Felton v. Felton , 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus. “The decisio n to grant or dismiss a request for a civil protection order is within the discretion of

the trial court.” Rangel v. Woodbury , 6th Dist. Lucas No. L-09-1084, 2009- Ohio-4407, ¶ 11, citing Deacon v. Landers , 68 Ohio App.3d 26, 31, 587 N.E.2d 395 (4th Dist.1990). “An appellate court will not rever se a trial court’s decision regarding a civil protection order absent an a buse of

discretion.” Id. , citing Parrish v. Parrish , 146 Ohio App.3d 640, 646, 767 N.E.2d 1182 (4th Dist.2000). An abuse of discretion connotes t hat the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “ If the trial court’s decision is supported by credible and competent evidence, the appellate court will not reverse the decision as an abuse of discretion. ” Rangel at ¶ 11, citing Jarvis v. Jarvis , 7th Dist. Jefferson No. 03-JE-26, 2004-Ohio-1386, ¶ 13. Pursuant to R.C. 3113.31, a person who is subject to domestic violence may petition a court for a protection order. Relevant here,

domestic violence means “Placing another person by the threat of force in fear of imminent serious physical harm,” or “[E]ngaging in a pattern of conduct [that knowingly causes] [a family or household member] to believe that the offender will cause physical harm to the other person or cause7. mental distress to the other person.” R.C. 3113.31(A)(1)(b) and 2903.211(A)(1). Expounding on those elements, “‘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). “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.’” Ensley v. Glover , 6th Dist. Lucas No. L-11-1026, 2012-Ohio-4487, ¶ 10, quoting Middletown v.

Jones , 167 Ohio App.3d 679, 2006-Ohio-3465, 856 N.E.2d 1003, ¶ 10 (12th Dist.).

“Mental distress” means “Any mental illness or condition that involves some temporary substantial incapacity,” or “Any mental illness or condition that would normally require psychiatric treatment, ps ychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological trea tment, or other mental health services.” R.C. 2903.211(D)(2). “The statute, however, ‘does not require that the victim actually experience mental distress, but only that the victim believes the stalker would cause mental distress or physical harm.’” Ensley at ¶ 13, quoting Bloom v. Macbeth , 5th8. Dist. Ashland No. 2007-COA-050, 2008-Ohio-4564, ¶ 11. “Moreove r, the testimony of the victim herself as to her fear is sufficient to establish mental

distress. ” Id., citing State v. Horsley , 10th Dist. Franklin No. 05AP-350, 2006-Ohio-1208, ¶ 48. Notably, we recognize that “mental distr ess for purposes of the menacing by stalking statute is not mere mental stress or annoyance.” Fondessy v. Simon , 6th Dist. Ottawa No. OT-11-041, 2013- Ohio-3465, ¶ 19, quoting Caban v. Ransome , 7th Dist. Mahoning No. 08 MA 36, 2009-Ohio-1034, ¶ 29.

Id . at ¶ 12-15 (emphasis added). {¶ 11} In the instant matter, appellant argues that the evidence offer ed by appellee in support of the extension was insufficient and/or against the manifest weight of the evidence. Testimony by appellee established that he was fearfu l, and suffered mental distress, as a result of appellant’s pattern of conduct followi ng the imposition of the initial protective order on January 30, 2018. Such conduct inc luded—in addition to appellant’s violation of the protective order that resulted in his November 2018 conviction—appellant’s surprise appearance at the funeral for o ne of appellee’s in-laws just days before the January 6, 2020 hearing, appellant’s conti nuing conduct to harass and intimidate in connection with the sale of appellee’s property i n 2019, and appellant’s presence at appellee’s property in 2018, which led to a visit b y the sheriffs. {¶ 12} Appellee’s uncontroverted testimony concerning his continuing f ear of appellant based upon appellant’s “deep history” of “ongoing” vi olence—as evidenced by9. appellee’s additional testimony concerning the existence of pro tection orders for five other relatives in addition to appellee—further supports the re asonableness of appellant’s

fear. “Threats of violence constitute domestic violence for th e purposes of R.C. 3113.31 if the fear resulting from those threats is reasonable.” Kiedrowicz v. Kiedrowicz , 6th Dist. Huron No. H-98-049, 1999 WL 197793, *4 (Apr. 9, 1999), citing Eichenberger v. Eichenberger , 82 Ohio App.3d 809, 815, 613 N.E.2d 678 (10th Dist. 1992). L ikewise, “[t]he reasonableness of the fear felt by the petitioner is det ermined with reference to the petitioner’s history with the respondent.” Id. , citing Eichenberger at 816; Conkle v. Wolfe , 4th Dist. Athens No. 98CA2 (Nov. 18, 1998). {¶ 13} Appellee’s mental distress is further corroborated by the fact of his changed routine in paying respect to his deceased in-law. He testified on cross-examination that he did not attend the funeral the previous Friday, “because I, out of respect for the family I was asked that it would be a good idea that I didn’t go becau se he was there.” “Evidence of a changed routine corroborates a finding of mental distress.” Smith v.

Wunsch , 162 Ohio App.3d 21, 2005-Ohio-3498, 832 N.E. 2d 757, ¶ 20 (4t h Dist.), citing

Noah v. Brillhart , 9th Dist. Wayne No. 02CA0050, 2003-Ohio-2421, ¶ 16, and State v.

Scott , 9th Dist. Summit No. 20834, 2002-Ohio-3199, ¶ 14. {¶ 14} Appellant’s presence at a funeral for someone with whom he had no relationship and where he may have known he was unwelcome demon strates his intention to cause appellee mental distress, as he knew that appellee wou ld be attending to pay respect to his deceased in-law.10. {¶ 15} All of the foregoing constitutes evidence of specific conduct b y appellant that occurred at specific times. Although each of the incident s occurred over a period of three years, together they show, by a preponderance of competen t, credible evidence that appellant engaged in a pattern of conduct that knowingly caused appellee mental distress, as prohibited by R.C. 2903.211(A)(1). Accordingly, we find the evidence sufficient to support the trial court’s renewal of the protection order again st appellant for an additional

year. {¶ 16} To the extent that appellant argues that there is no evidence t hat appellee was in fear of “imminent serious physical harm in December 2019 ,” appellant is reminded that an offender violates R.C. 2903.211(A)(1), menacin g by stalking, by engaging in a pattern of conduct that knowingly causes another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person. Thus, elements of R.C. 2903.211(A)(1) include “physica l harm” or “mental distress,” but do not include “imminent serious physical harm.” The use of the word “or” in R.C. 3113.31(A)(1)(b) permits the trial court to find that a n offender committed

domestic violence either by placing another person by the threat of force in fear of imminent serious physical harm or by committing a violation of R.C. 2903.211 [menacing by stalking] or R.C. 2911.211 [aggravated trespass]. Any argument to the contrary is properly dismissed as meritless. {¶ 17} Finally, we look to appellant’s claim that the extension of the protection order violated appellant’s “constitutional right not to be puni shed twice for the same11. offense.” In making this argument, appellant relies on the fal se premise that the motion to extend the term of the protection order “was based entirely upon [a]ppellant’s conviction in the Sylvania Municipal court.” From this false p remise appellant concludes that “[b]y extending the [protection order] for an additional y ear based on the Sylvania conviction, the Domestic Relations Court effectively enhanced [ a]ppellant’s punishment for his 2018 conviction.” Stated differently, appellant conten ds that “[o]ther than the Sylvania conviction, [a]ppellee failed to offer the court any n ew evidence that would support a finding that he was in imminent fear of physical harm by [a]ppellant in

December 2019.” As the court’s earlier discussion reveals an a bundance of additional evidence in support of the trial court’s finding that appellant engaged in a pattern of conduct that knowingly caused appellee mental distress, as proh ibited by R.C. 2903.211(A)(1), appellant’s argument to the contrary—which addi tionally references a standard for an altogether separate violation—is dismissed as m eritless. Appellant’s sole assignment of error is found not well-taken. {¶ 18} For all of the foregoing reasons, the judgment of the Lucas Cou nty Court of Common Pleas, Domestic Relations Division, is affirmed. Appell ant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.12. Spa ulding v. Spaulding C .A. No. L-20-1102

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.