2019 Ohio 4293
Ohio Ct. App.2019Background
- Plaintiff Brad Cable (pro se) filed a petition for a civil stalking protection order (CSPO) under R.C. 2903.214 on March 8, 2019; a temporary ex parte CSPO issued the same day and named Cable, his fiancée, and his niece.
- Cable alleged two threatening incidents over consecutive days: March 6 — McHenry seen near Cable’s fence cursing and implying violence and suspected of throwing rat poison (Cable’s dog had died); March 7 — McHenry allegedly videotaped Cable and held a shotgun while saying he would “shoot a motherf*er tonight.”
- Full hearing before a magistrate occurred March 19, 2019; both parties testified pro se and submitted evidence (including allegations of videotaping and prior incident of filming at a window).
- Magistrate granted the CSPO on April 16, 2019; trial court adopted the magistrate’s order. McHenry later filed motions and then appealed on May 14, 2019, divesting the trial court of further jurisdiction.
- The trial court found, by a preponderance of the evidence, that McHenry engaged in a "pattern of conduct" causing Cable to believe McHenry would cause physical harm or mental distress, and therefore issued a final CSPO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the facts alleged and proven established a "pattern of conduct" under R.C. 2903.211 sufficient for a CSPO | Cable: two or more closely related incidents (March 6–7), threats, videotaping, and prior conduct established a pattern causing belief of harm | McHenry: Cable lied; single-episode or constitutionally protected conduct on his property; insufficient evidence of a pattern | Court: Affirmed — two separate threatening acts (and related conduct) could constitute a pattern; evidence met preponderance standard |
| Whether the magistrate abused discretion by crediting Cable and disregarding McHenry’s testimony | Cable: testimony and evidence supported findings; credibility decisions within trier of fact | McHenry: magistrate ignored his testimony and evidence; ruling was an abuse of discretion | Court: No abuse — credibility and weight are for the trier of fact; magistrate reasonably credited Cable and could find requisite knowledge and effect on belief of harm |
Key Cases Cited
- State v. Scruggs, 136 Ohio App.3d 631 (2d Dist. 2000) (two or more actions closely related in time can form a "pattern of conduct")
- Middletown v. Jones, 167 Ohio App.3d 679 (12th Dist. 2006) (contextual inquiry for what is "closely related in time")
- State v. Smith, 126 Ohio App.3d 193 (7th Dist. 1998) (nonverbal acts can suffice to cause reasonable belief of harm)
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (legal standard for reviewing sufficiency of the evidence)
- State v. DeHass, 10 Ohio St.2d 230 (Ohio 1967) (credibility and weight of testimony are primarily for the trier of fact)