[Cite as Vargo v. Massa, 2024-Ohio-1973.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

BRITTANY VARGO, : JUDGES:

: Hon. Craig R. Baldwin, P.J.

 Petitioner- Appellant : Hon. W. Scott Gwin, J.

: Hon. John W. Wise, J.

-vs- :

:

KEVIN MASSA, : Case No. 2023CA00114

:

 Respondent - Appellee : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court 

of Common Pleas, Family Court 

Division, Case No. 2023 DV 66

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: May 22, 2024

APPEARANCES:

For Petitioner-Appellant For Respondent-Appellee

HENNA R. SCHAFER KEVIN MASSA, Pro Se

SHANNON R. DILLON 1428 Rowland Ave NE

Community Legal Aid Services Canton, Ohio 44705

401 Market Ave., North, Suite 103

Canton, Ohio 44702
Stark County, Case No. 2023CA00114 2

Baldwin, J.

{¶1} Appellant Brittany Vargo appeals the trial court’s decision overruling her 

objection to the magistrate’s denial of her Petition for Domestic Violence Civil Protection 

Order. The appellee is Kevin Massa. 

STATEMENT OF THE FACTS AND THE CASE

{¶2} The appellant and appellee were in a relationship for a number of years 

and, although never married, resided together. They have three children together. 

{¶3} On June 15, 2023, the appellant filed a Petition for Domestic Violence Civil 

Protection Order with the trial court. Her written petition statement was detailed and 

lengthy, and included specific incidents, with dates, of the appellee’s alleged violence 

towards her. Her ex parte request was granted, and a full hearing was scheduled. 

{¶4} On June 27, 2023, the full hearing on the appellant’s petition proceeded 

before the magistrate. Both parties appeared pro se. The appellant testified that the 

appellee raised a bat to her, threatened to kill her, and held a gun to her. The appellant 

also testified that the appellee hit her in the face with a hanger and pushed her into a 

cabinet in the bathroom. She testified further that she was afraid of the appellee, and was 

afraid to go home. During her testimony, the appellant told the magistrate that she had 

with her evidence of the appellee's violent and abusive behavior in the form of pictures 

and voice recordings on a flash drive. The magistrate failed to acknowledge or respond 

to the appellant’s reference to this evidence. The magistrate proceeded to ask if the 

appellant had anything else she wished to say, which she did not.

{¶5} The appellee waived his opportunity to cross-examine the appellant, and 

proceeded to his case in chief. The appellee testified that he loved the appellant, that he 
Stark County, Case No. 2023CA00114 3

believed the appellant was cheating on him, and that the petition was an attempt to force 

him from his home. The appellee did not refute the appellant’s allegations of domestic 

violence until the magistrate explicitly questioned him. The appellee testified that he had 

“never done any violence towards” the appellant.

{¶6} The appellant was then given an opportunity to cross examine the appellee, 

at which time she attempted to impeach him with her photographic and audio evidence 

of the alleged abuse. However, the magistrate denied her efforts to submit the evidence 

of the alleged abuse, stating that the appellant was required to present any photographs 

or voice recordings during her case in chief only, and that because her case was over 

she was not permitted to submit the evidence. 

{¶7} The magistrate announced her findings at the conclusion of the hearing, 

stating that the definition of domestic violence is narrow and does not include “bad 

behavior, shouting, screaming and ugliness toward one another.” The magistrate also 

stated that she did not hear testimony that the appellee “actually” harmed the appellant, 

determined that the appellant had not met her burden of proof, and denied her request 

for a full civil protection order.

{¶8} The magistrate issued a written Magistrate’s Decision on June 28, 2023, in 

which she denied the request for a Full Civil Protection Order and dismissed the case. 

On July 11, 2023, the appellant, through counsel, objected to the Magistrate’s Decision, 

and on July 24, 2023 filed a supplemental memorandum in support of the Objections to 

the Magistrate’s Decision. On August 14, 2023, the trial court conducted a hearing on the 

appellant’s objections. The appellant appeared with counsel, and the appellee appeared
Stark County, Case No. 2023CA00114 4

pro se. The trial court overruled the appellant’s Objections to the Magistrate’s Decision 

the same day. 

{¶9} The appellant filed a timely appeal in which she sets forth the following three 

assignments of error: 

{¶10} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S 

REQUEST FOR A DOMESTIC VIOLENCE CIVIL PROTECTION ORDER WHERE THE 

MANIFEST WEIGHT OF THE EVIDENCE SUPPORTED THE ISSUANCE. 

(MAGISTRATE’S DECISION OF JUNE 28, 2023).”

{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING 

APPELLANT THE OPPORTUNITY TO FULLY PROSECUTE HER CASE AS A PRO SE 

LITIGANT WHEN IT REFUSED TO ALLOW HER TO PRESENT PHYSICAL EVIDENCE 

IN SUPPORT OF HER TESTIMONY. (PROTECTION ORDER HEARING TR. AT 5 

LINES 16-20, 8 LINES 7-14).”

{¶12} “III. THE TRIAL COURT ERRED WHEN IT MISAPPLIED REVISED CODE 

3113.31 IN DENYING THE APPELLANT’S REQUEST FOR A DOMESTIC VIOLENCE 

CIVIL PROTECTION ORDER. (PROTECTION ORDER HEARING TR. AT 8, LINES 17-

19).”

STANDARD OF REVIEW

{¶13} “When granting a protection order, the trial court must find that petitioner 

has shown by a preponderance of the evidence that petitioner or petitioner's family or 

household members are in danger of domestic 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. 

“Preponderance of the evidence” is “evidence which is of greater weight or more 
Stark County, Case No. 2023CA00114 5

convincing than the evidence which is offered in opposition to it; that is, evidence which 

as a whole show that the fact sought to be proved is more probable than not.” Black's 

Law Dictionary 1182 (6th Ed.1990).

{¶14} A reviewing court must not substitute its judgment for that of the trial court 

where there exists some competent and credible evidence supporting the judgment 

rendered by the trial court. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 

N.E.2d 517. The weight to be given to the evidence and the credibility of the witnesses 

are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 

(1990). The trier of fact “has the best opportunity to view the demeanor, attitude, and 

credibility of each witness, something that does not translate well on the written page.” 

Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶15} The decision regarding whether to grant a civil protection order lies within 

the sound discretion of the trial court. L.L. v. R.B., 5th Dist. Guernsey No. 17 CA 02, 2017-

Ohio-7553, 2017 WL 3980553; Singhaus v. Zumbar, 5th Dist. Tuscarawas No. 

2015AP020007, 2015-Ohio-4755, 2015 WL 7300195. In addition, “[d]ecisions involving 

the admissibility of evidence are reviewed under an abuse-of-discretion standard of 

review.” Est. of Johnson v. Randall Smith, Inc., 135 Ohio St. 3d 440, 2013-Ohio-1507, 

989 N.E.2d 35 at ¶ 22.

{¶16} In order to find an abuse of discretion, the appellate court must determine 

that the trial court's decision was unreasonable, arbitrary or unconscionable and not 

merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 

N.E.2d 1140 (1983).

ANALYSIS
Stark County, Case No. 2023CA00114 6

{¶17} We begin our analysis with the appellant’s second assignment of error, in 

which she argues that the trial court abused its discretion when it refused to permit her to 

submit evidence of her claims of domestic violence. We agree.

{¶18} The appellant testified during the presentation of her case that she had 

photographic evidence and voice recordings demonstrating the appellee's violent and 

abusive behavior in her possession at the time of the hearing. The magistrate failed to 

acknowledge or respond to the appellant’s statement regarding this evidence. The 

appellant made no further attempt to proffer the evidence during the presentation of her 

case. 

{¶19} During the appellee’s presentation of his case, he refuted the appellant’s 

allegations of domestic violence when questioned by the magistrate, testifying that he 

had “never done any violence towards her.” The appellant was then given an opportunity 

to cross examine the appellee, at which time she attempted to impeach him with her 

photographic and audio evidence of the alleged abuse. The magistrate prohibited her 

from submitting her evidence of the appellee’s alleged abuse, stating that the appellant 

was required to present any photographs or voice recordings during her case in chief 

only, and that because her case was over she was not permitted to submit the evidence. 

We find that the magistrate’s refusal to permit the appellant to proffer this rebuttal 

evidence was an abuse of discretion.

{¶20} The court in State v. Bowman, 144 Ohio App. 3d 179, 759 N.E.2d 856 

succinctly defined rebuttal evidence as follows:

Rebuttal evidence is that which is given to explain, refute, counteract, 

or disprove facts given in evidence by the adverse party. State v. McNeill
Stark County, Case No. 2023CA00114 7

(1998), 83 Ohio St.3d 438, 446, 700 N.E.2d 596, 605–606; Nickey v. Brown

(1982), 7 Ohio App.3d 32, 35, 7 OBR 34, 37–38, 454 N.E.2d 177, 181–182. 

Rebuttal evidence becomes relevant only to challenge the evidence offered 

by the adverse party, and such evidence limits its scope. Id. The admission 

or exclusion of rebuttal testimony is within the discretion of the trial court 

and will not be reversed absent an abuse of discretion. See, e.g., McNeill,

83 Ohio St.3d at 446, 700 N.E.2d at 605–606.

Evid.R. 613 governs the procedures for impeachment of a witness 

by self-contradiction.2 There are two types of self-contradiction 

impeachment recognized by Evid.R. 613: prior inconsistent statements and 

prior inconsistent conduct. Extrinsic evidence of a prior inconsistent 

statement or prior inconsistent conduct is generally admissible if two 

conditions are met. See Evid.R. 613(B). First, if the evidence is offered for 

the sole purpose of impeaching the witness, the proponent must lay the 

proper foundation and the witness must have the opportunity to explain or 

deny the inconsistent behavior or conduct.3 Evid.R. 613(B)(1); State v. 

Hartman (Apr. 5, 1999), Clermont App. No. CA98–06–040, unreported, 

1999 WL 188145.

Id. at 186–187. 

{¶21} The appellant attempted to proffer her photographic and audio evidence in 

order to rebut the appellee’s testimony in which he asserted that he had “never done any 

violence towards her.” We cannot say if the appellant would have been able to lay the 

proper foundation, as the magistrate did not allow the appellant proffer the evidence. This 
Stark County, Case No. 2023CA00114 8

was not only an error of law, as parties have an absolute right to submit evidence to rebut 

an opponent’s testimony if a proper foundation is laid and the witness can respond, it was 

also unreasonable, arbitrary, and capricious. We therefore sustain the appellant’s second 

assignment of error, and remand the matter to the trial court for further proceedings 

consistent with this opinion. 

{¶22} In light of our decision regarding assignment of error number two, we find 

that assignments of error numbers one and three are moot. We note, however, that the 

definition of the term “domestic violence” encompasses more than the narrow definition 

referenced by the magistrate at the conclusion of the June 27, 2023 hearing. The term is 

defined in R.C. 3113.31, which states in pertinent part:

(A) As used in this section:

(1) “Domestic violence” means any of the following:

(a) The occurrence of one or more of the following acts against a family 

or household member:

(i) Attempting to cause or recklessly causing bodily injury;

(ii) Placing another person by the threat of force in fear of imminent 

serious physical harm or committing a violation of section 2903.211 

[menacing by stalking] or 2911.211 [aggravated trespass] of the 

Revised Code;

(iii) Committing any act with respect to a child that would result in the 

child being an abused child, as defined in section 2151.031 of the 

Revised Code;

(iv) Committing a sexually oriented offense.
Stark County, Case No. 2023CA00114 9

(b) The occurrence of one or more of the acts identified in divisions 

(A)(1)(a)(i) to (iv) of this section against a person with whom the 

respondent is or was in a dating relationship.

CONCLUSION

{¶23} Based upon the foregoing, the judgment of the Stark County Court of 

Common Pleas, Family Court Division, is hereby reversed and remanded back to the trial 

court for further proceedings consistent with this opinion. 

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.