Masucci v. Burnbrier
2015 Ohio 4102
Ohio Ct. App.2015Background
- John Masucci (pro se) petitioned for a civil stalking protection order (stalking CPO) against Carl Burnbrier on behalf of himself, his wife, and two minor daughters.
- Magistrate held a hearing where Masucci and his wife testified; neither daughter who allegedly heard threats testified, nor was a recording or the text message admitted into evidence.
- Magistrate granted the stalking CPO; the trial court adopted the magistrate’s decision and issued a final order. Burnbrier appealed.
- Burnbrier argued the key testimony was inadmissible hearsay and, excluding hearsay, the remaining evidence did not show the statutorily required “pattern of conduct” for menacing by stalking.
- The appellate court found much of the evidence was hearsay with no applicable exception and concluded the non-hearsay evidence did not establish the required pattern. The stalking CPO was vacated and the trial court’s judgment reversed.
Issues
| Issue | Plaintiff's Argument (Masucci) | Defendant's Argument (Burnbrier) | Held |
|---|---|---|---|
| Whether evidence established menacing by stalking (pattern of conduct) | Masucci relied on three incidents (alleged threat heard on a phone call, an in-person intoxicated visit about dropping off shoes, and a text saying “time to take action”) to show a pattern causing fear/mental distress | Burnbrier argued the alleged phone threat, forwarded text, and other testimony were inadmissible hearsay; without them there was no two-or-more incident pattern | Court held most critical evidence was inadmissible hearsay and remaining admissible evidence did not show the required pattern; reversed and vacated CPO |
| Whether testimony admitted was improper hearsay | Masucci implicitly relied on hearsay testimony and second/third‑hand accounts admitted at hearing | Burnbrier argued numerous hearsay objections; no hearsay exceptions or direct testimony from declarants were presented | Court agreed the contested testimony was hearsay, not admissible as party admission, and should not have supported the CPO |
| Relevance and sufficiency of the alleged text message | Masucci treated the forwarded text as evidence of a threat/menacing | Burnbrier argued the forwarded text was hearsay and of unclear meaning/relevance to menacing by stalking | Court found the text was double-hearsay, of marginal relevance, and insufficient to support a stalking CPO |
| Standard of review and remedy | Masucci relied on magistrate/trial court factual findings | Burnbrier invoked abuse of discretion review, arguing the record lacked adequate admissible evidence | Court applied abuse of discretion, found it was abused, reversed judgment and vacated the CPO |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (defines abuse of discretion standard)
- State v. Thompson, 87 Ohio App.3d 570 (9th Dist. 1993) (statements by a party-opponent and requirements for proving such statements)