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Date: 06-13-2019

Case Style:

A.V. v. STEVEN R. McNICHOLS

Case Number: 18CA17

Judge: Michael D. Hess

Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

Plaintiff's Attorney: James R. Kingsley

Defendant's Attorney: Courtenay Balvin

Description:





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A.V. filed a petition for a civil stalking protection order against McNichols in
June 2018 under R.C. 2903.214 and R.C. 2903.211. The trial court issued a temporary
ex parte CPO, held an evidentiary hearing, and granted A.V. a CPO against McNichols,
effective until June 29, 2019. At the hearing the trial court heard the following evidence.
{¶5} A.V. and McNichols were involved in a romantic relationship from August
2014 until the fall of 2017 and lived together for six months from approximately
September 2014 to February 2015. During that time they broke up and reunited several
times.
{¶6} As a child A.V. had been sexually abused by several male relatives and
McNichols was aware of the abuse. McNichols used knowledge of the sexual abuse to
Hocking App. No. 18CA17 3

inflict mental distress on her. McNichols repeatedly called A.V. a “whore” for wearing
certain clothes or makeup. A.V. testified that she attended a relative’s funeral and
McNichols told her to be home by 2:00 PM. When she arrived a few minutes late,
McNichols tormented her with accusations that the reason she was late was so that her
“uncles can take turns with me sexually.” On another occasion McNichols told A.V. that
if he saw her being raped by six guys, he would not help her. Another time McNichols
told A.V. to “go find your dad and grandpa so they can go rape you.” McNichols told
A.V. that if she ever got involved with anybody else, he would tell that person that A.V.
liked anal sex because he knew that her grandfather had raped her in that manner as a
child. A.V. testified that when McNichols made these remarks, she had tearful
breakdowns and his response would be “go ahead and cry those crocodile tears.”
{¶7} During their relationship, A.V. had to quit a job because McNichols
accused her of having an affair at work. McNichols would not allow A.V. to see her
family members and threatened to “throw all [A.V.’s] stuff out” if she visited her brother.
A.V. testified that McNichols would follow A.V. in his car and on one of those occasions
he circled his car around her four times as she was getting gasoline. A.V. testified that
there were so many instances of McNichols inflicting emotional distress that she could
not recall them all, “It was constant.” A.V. told McNichols many times to leave her alone
and that she only wanted “to be friends, nothing more.” But McNichols told her, “If we
can’t be together, I will get you evicted” from her home. A.V. told McNichols that if he
would not leave her alone, she would get a restraining order. McNichols replied, “It’s just
a piece of paper. I can walk through it.” A.V. testified that there were times McNichols
drove by her house and revved his engine. A.V. did not want McNichols to come onto
Hocking App. No. 18CA17 4

her property. She complained to her landlord, who was McNichols’s uncle, about
McNichols and her landlord advised her to get a restraining order.
{¶8} A.V. acknowledged that she had been to McNichols’s house several times
in June 2018. She testified that her dog had puppies and McNichols had the puppies at
his house and encouraged her to visit the puppies. She also went to McNichols’s house
to return property that belonged to him. A.V. stated that if she did not go to his house,
then McNichols would come to her house. If she did not answer the door, he would
shout through the window. A.V. testified that by going to McNichols’s house, she was
“trying to keep peace.”
{¶9} A.V. filed her petition for a civil stalking protective order after several
incidents in June 2018. On June 26, 2018 McNichols went to A.V.’s sister’s house
looking for A.V.. Her sister texted her that McNichols was looking for her. A.V. testified
that she called the Hocking County Sheriff’s Office, but the dispatcher instructed A.V. to
seek a protective order. When A.V. returned home that evening McNichols was in her
driveway. She asked him to leave but he refused and said he would sleep in the
driveway. Another neighbor arrived, and an altercation broke out. Several Hocking
County Sheriff’s Department deputies arrived, and A.V. made an incident report against
McNichols with one of the deputies.
{¶10} In mid-June, McNichols went to A.V.’s residence while she was at work
and left a planter with a flower on her porch with a plaque that read, “You are my
sunshine.” A.V. took the planter inside but left the plaque outside. McNichols came back
a few days later, saw the plaque, broke it in half and took it with him. He returned the
plaque a few days later and had written on the back of it, “You really was (IS) is my
Hocking App. No. 18CA17 5

sunshine. That made me feel so warm inside and out. My heart used to be 1. Now
cracked just like this. Is no more sunshine. My sunshine left me. Love and care always
for AFV [A.V.’s initials]. You are the love of my heart, body, soul.”
{¶11} A.V. testified that because of McNichols’s behavior she carries pepper
spray and wasp spray for defense, she suffers from anxiety when she sees a silver
vehicle similar to the one McNichols drives, and she suffers from nightmares about
three times a week due to McNichols’s stalking behavior. A.V. testified that although she
does not take medication, “Once all of this is over with, I will be going to seek
counseling.”
{¶12} McNichols testified and admitted that he did not want his relationship with
A.V. to be over. He admitted that he put the planter and plaque on A.V.’s front porch
when she was not there and that he wrote the message on the plaque because she had
broken his heart. McNichols testified that he circled around A.V. three times – not four –
when she was getting gasoline. McNichols admitted that A.V. asked him to leave her
alone at least five times before she filed her CPO petition.
{¶13} The trial court granted A.V. a civil stalking protection order for a period
ending June 29, 2019. McNichols appealed.
II. ASSIGNMENT OF ERROR
McNichols assigns the following error for our review:
I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ISSUED A CPO AGAINST RESPONDENT


III. LAW AND ANALYSIS
A. Standard of Review
Hocking App. No. 18CA17 6

{¶14} Because the decision on whether to grant a civil protection order is within
the trial court's sound discretion, we will not reverse it absent an abuse of that
discretion. McKinley v. Kuhn, 4th Dist. Hocking No. 10CA5, 2011-Ohio-134, ¶ 12-13;
Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757, ¶ 10 (4th
Dist.). “The term ‘abuse of discretion’ * * * implies that the court's attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶15} Moreover, an “appellate court may not simply substitute its judgment for
that of the trial court so long as there is some competent, credible evidence to support
the lower court findings.” State ex rel. Celebrezze v. Environmental Enterprises, Inc., 53
Ohio St.3d 147, 154, 559 N.E.2d 1335 (1990). When an appellate court reviews a trial
court's judgment, it must generally defer to the fact-finder's weight of the evidence and
credibility determinations. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 81,
461 N.E.2d 1273 (1984). As the Court explained in Seasons Coal:
A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not. The determination of credibility of testimony and evidence must not be encroached upon by a reviewing tribunal, especially to the extent where the appellate court relies on unchallenged, excluded evidence in order to justify its reversal.

Id. The trier of fact is free to believe all, part, or none of the testimony of any witness
who appears before it. McKinley v. Kuhn at ¶ 13.
B. Knowingly Cause Mental Distress
Hocking App. No. 18CA17 7

{¶16} McNichols argues that the trial court abused its discretion in finding that he
acted “knowingly” and in finding that A.V. suffered “actual” mental distress. He does not
deny that he behaved the way A.V. described, but rather claims that a reasonable
person would not have suffered mental distress from his behavior.
{¶17} A petitioner must demonstrate by a preponderance of the evidence that
the respondent has engaged in menacing by stalking in violation of R.C. 2903.211.
Strausser v. White, 8th Dist. Cuyahoga No. 92091, 2009-Ohio-3597, ¶ 30; Caban v.
Ransome, 7th Dist. Mahoning No. 08MA36, 2009-Ohio-1034, ¶ 7. The menacing by
stalking statute, R.C. 2903.211(A)(1), provides: “No 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.”
{¶18} The term “knowingly” is defined in R.C. 2901.22(B):
A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

{¶19} Thus, a petitioner seeking a civil stalking protection order under R.C.
2903.211 is not required to prove either purpose or intent to cause physical harm or
mental distress. It is enough that the alleged offender knowingly preformed an act that
resulted in causing the victim mental distress. See Caban v. Ransom at ¶ 21-24. In
other words, the offender’s subjective intent is not relevant under R.C. 2903.211.
Instead the issue is whether the offender acts when he is aware that his conduct will
probably cause mental distress, regardless of whether it was his purpose to cause that
result.
Hocking App. No. 18CA17 8

{¶20} Here the record contains sufficient evidence that McNichols acted
knowingly when he performed acts that were mentally distressing to A.V.. He witnessed
her tearful breakdowns when he taunted her about sexual abuse and rape; he knew she
had repeatedly asked him to leave and stay away; he purposely left a planter and
plaque on her porch while she was away and then broke the plaque and left an
emotional note; and he refused to leave her home and told her he was going to sleep in
her driveway.
{¶21} McNichols’s contention that his verbal abuse is protected by the First
Amendment is meritless and was properly rejected by the trial court. State v. Benner, 96
Ohio App.3d 327, 329–30, 644 N.E.2d 1130, 1132 (1st Dist.1994) (It is not “within the
protection of the First Amendment's guarantee of free speech to knowingly cause
another to believe one will cause physical harm or mental distress to him or her by
engaging in two or more actions or incidents closely related in time”). Additionally, aside
from a superficial assertion, he provides no further analysis on this issue. Accordingly,
we will not address this argument further. See App.R. 16; App.R. 12(A)(2); Wallace v.
Masten, 4th Dist. Hocking No. 02CA13, 2003-Ohio-1081, ¶ 35.
{¶22} McNichols also contends that there was no credible evidence in the record
that A.V. actually suffered mental distress because she did not seek professional care
for her distress. Mental distress is defined in R.C. 2903.211(D)(2)(a) as any “mental
illness or condition that involves some temporary substantial incapacity.” Incapacity is
substantial if it has a significant impact upon the victim’s daily life, such as causing a
change in one’s routine. Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, ¶ 20
(4th Dist.). However, “Mental distress need not be incapacitating or debilitating.”
Hocking App. No. 18CA17 9

McKinley v. Kuhn at 17. “[A] trial court may rely on its knowledge and experience in
determining whether the petitioner suffered mental distress.” Id.
{¶23} The trial judge witnessed A.V.’s and McNichols’s character and demeanor
and assessed their credibility at the hearing. As the trier of fact, the trial court was free
to draw its own conclusions about credibility and to disbelieve all, part, or none of their
testimony. We typically defer to trial courts on issues of weight and credibility because
the trial court observed demeanor, gestures and voice inflections and uses those in
weighing testimony. Smith v. Wunsch, 162 Ohio App.3d 21, 2005-Ohio-3498, 832
N.E.2d 757, ¶ 21 (4th Dist.).
{¶24} The record allows a rational decision maker to find that A.V. suffered
mental distress. A.V. testified that she suffered from anxiety and nightmares and carried
pepper spray and wasp spray because she was fearful of McNichols. She has relocated
and does not want McNichols to know where she lives. She testified that she did not
want to state her address for the record because she did not want McNichols to learn
where she was living. She testified that McNichols was constantly mentally abusive
towards her, causing her to breakdown in tears. She suffered from anxiety when she
saw a silver car because McNichols’s car was silver and he was frequently driving
around trying to find and follow her. She had nightmares three times a week because
McNichols was stalking her. Testimony that a respondent’s conduct caused the person
considerable fear can support a finding of mental distress. McNaughton v. Cochenour,
4th Dist. Ross No. 15CA3479, 2015-Ohio-4648, ¶ 30, citing Middletown v. Jones, 167
Ohio App.3d 679, 683, 2006-Ohio-3465, 856 N.E.2d 1003, 1006, ¶ 8 (12th Dist.)
(testimony that petitioner felt “nervous,” “frightened,” “upset,” “worried,” and “scared”
Hocking App. No. 18CA17 10

was sufficient to support a finding of mental distress). We find no abuse of discretion in
the trial court’s finding that McNichols knowingly caused A.V. to suffer mental distress
as a result of his persistent conduct, which exceeded the level of a mere annoyance
and became threatening or alarming to its recipient.
C. The Civil Stalking Protection Order Statutes Do Not Require the Parties to be “Family or Household Members” or “Living as a Spouse”

{¶25} McNichols argues that “living as a spouse” is an element of R.C.
2903.214. He is wrong. A.V. sought a civil stalking protection order. The two relevant
statutory provisions are R.C. 2903.214 (Protection orders and electronic monitoring;
persons who may seek relief; ex parte) and R.C. 2903.211 (menacing by stalking). R.C.
2903.214 allows a person to file a CPO petition with the court containing an allegation
that the respondent is engaged in menacing by stalking under R.C. 2903.211:
(C) A person may seek relief under this section for the person, or any parent or adult household member may seek relief under this section on behalf of any other family or household member, by filing a petition with the court. The petition shall contain or state all of the following:

(1) An allegation 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 or committed a sexually oriented offense against the person to be protected by the protection order, including a description of the nature and extent of the violation;

(2) If the petitioner seeks relief in the form of electronic monitoring of the respondent, an allegation that at any time preceding the filing of the petition the respondent engaged in conduct that would cause a reasonable person to believe that the health, welfare, or safety of the person to be protected was at risk, a description of the nature and extent of that conduct, and an allegation that the respondent presents a continuing danger to the person to be protected;

(3) A request for relief under this section. (Emphasis added.)

{¶26} R.C. 2903.211 provides:
Hocking App. No. 18CA17 11

(A)(1) No 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. In addition to any other basis for the other person's belief that the offender will cause physical harm to the other person or the other person's family or household member or mental distress to the other person or the other person's family or household member, the other person's belief or mental distress may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs. (Emphasis added.)

{¶27} While both statutory provisions allow a family or household member to
seek a CPO on behalf of another family or household member, there is no requirement
that the petitioner and respondent be “family or household members” or “living as a
spouse.” McNichols raised this flawed argument at the evidentiary hearing, insisting that
A.V. had to prove that she and McNichols were “family or household members.” The
trial court properly rejected it and correctly explained that the relevant statutes do not
require such a showing. McNichols raised it again after the hearing and argued that the
CPO must be vacated on the ground that A.V. did not show they were “living as a
spouse.” Again, the trial court properly rejected it.
{¶28} A.V. was not required to show that she and McNichols were “family or
household members” or “living as a spouse.”
{¶29} We find no abuse of discretion in the trial court’s decision granting A.V.’s
petition for a civil stalking protection order against McNichols.

Outcome: We overrule McNichols’s assignment of error and affirm the judgment of
the trial court.

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Defendant's Experts:

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