2019 Ohio 2180
Ohio Ct. App.2019Background
- A.V. and McNichols dated from Aug 2014 to fall 2017 and cohabited for ~6 months; their relationship involved repeated breakups, reunions, and escalating emotional abuse.
- McNichols repeatedly taunted A.V. about prior childhood sexual abuse, made rape-related threats and humiliating comments, followed her, circled his car near her, and refused to leave her driveway when asked.
- In June 2018 McNichols left a planter and plaque at A.V.’s home, later broke and returned the plaque with a lengthy emotional note; he also went to her sister’s house looking for A.V. and appeared in A.V.’s driveway.
- A.V. testified she experienced anxiety, frequent nightmares, carried defensive sprays, relocated, and avoided giving her address because of fear of McNichols.
- The trial court issued a temporary ex parte civil stalking protection order (CPO), held an evidentiary hearing, granted a CPO effective to June 29, 2019, and McNichols appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent "knowingly caused mental distress" under R.C. 2903.211 | A.V.: McNichols’ repeated conduct knowingly caused her anxiety, nightmares, and fear (mental distress). | McNichols: A reasonable person would not have suffered mental distress; no proof of actual mental illness or professional treatment. | Court: Enough competent evidence that respondent acted knowingly and caused mental distress; no abuse of discretion. |
| Whether "family/household member" or "living as a spouse" is required for a CPO under R.C. 2903.214/2903.211 | A.V.: Statutes allow any person to seek relief under R.C. 2903.214 for violations of R.C. 2903.211; no requirement that parties be family/household members. | McNichols: Petition must show parties are family/household or "living as a spouse." | Court: Statutes do not require parties to be family/household or living as spouses; trial court correctly rejected the argument. |
| Whether respondent’s speech is protected by the First Amendment | A.V.: Not asserted as a defense to menacing by stalking. | McNichols: His verbal conduct is protected speech. | Court: First Amendment claim is meritless where conduct knowingly causes mental distress via a pattern of actions; trial court properly rejected it. |
| Whether trial court abused discretion or misapplied law in granting CPO | A.V.: Trial court applied correct standard and credited testimony showing pattern and effects. | McNichols: Trial court’s credibility findings and legal conclusions were erroneous/contrary to law. | Court: No abuse of discretion; appellate court defers to trial court credibility assessments and affirms judgment. |
Key Cases Cited
- Smith v. Wunsch, 162 Ohio App.3d 21 (4th Dist.) (deference to trial court credibility in CPO cases)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (definition of abuse of discretion)
- Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77 (Ohio 1984) (appellate deference to trial-court credibility and weight of evidence)
- State ex rel. Celebrezze v. Environmental Enterprises, Inc., 53 Ohio St.3d 147 (Ohio) (appellate review cannot substitute judgment where competent, credible evidence exists)
- State v. Benner, 96 Ohio App.3d 327 (1st Dist.) (speech not protected when conduct knowingly causes mental distress or fear)
- Middletown v. Jones, 167 Ohio App.3d 679 (12th Dist.) (testimony of fear and anxiety can support finding of mental distress)