Lead Opinion
{¶ 2} "IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL [SIC] TO CONCLUDE THAT APPELLANT VIOLATED OHIO REVISED CODE SECTION
{¶ 3} R.C.
{¶ 4} R.C.
{¶ 5} The court applies a preponderance of the evidence standard in a determination of whether to grant a stalking civil protection order, see, e.g., Davis v. DiNunzio, Lake App. No. 2004-L-106,
{¶ 6} The magistrate to whom the matter was referred made findings of fact. The magistrate listed nine incidents which he found supported a decision appellant has *3 engaged in a pattern of conduct against appellee or the children. The magistrate found one incident occurred approximately two years before the hearing, another approximately one month prior to the hearing, and one three weeks prior to the hearing. The magistrate made no findings of when any of the other incidents occurred.
{¶ 7} The magistrate found appellee is the custodial parent, and has been given the care, custody, and control of the two children. The magistrate found appellant is interfering with appellee's parenting, and physical harm and inappropriate behavior has resulted from her interference. The magistrate also found appellant's daughter, the children's mother, has continued to allow appellant access to the children during her parenting times. The magistrate found absent an order from the court, further harm could occur to the children.
{¶ 8} Appellant argues the evidence adduced at trial was insufficient to establish she had knowingly engaged in a pattern of conduct that caused appellee or her grandchildren to believe she might cause physical harm or mental distress to them. She urges the incidents were too remote in time, and some were not even due to appellant's own actions.
{¶ 9} R.C.
{¶ 10} The statute does not define the term "closely related in time," but case law suggests the trier of fact should consider the evidence in the context of all circumstances of the case, Middletown v. Jones,
{¶ 11} The statute defines "mental distress" as any mental illness or condition that involves some temporary substantial incapacity, or any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not the person requested or received the psychiatric, psychological, mental health services. The statute does not require that the victim actually experience mental distress, but only that the victim believes the stalker would cause mental distress or physical harm,State v. Horsley, Franklin App. No. 05AP-350,
{¶ 12} We find the incidents listed by the magistrate constitute ample evidence appellant engaged in a pattern of conduct to knowingly cause appellee to believe she would cause physical harm or mental distress to him and/or the children.
{¶ 13} The assignment of error is overruled.
{¶ 14} For the foregoing reasons, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.
*5Gwin, P.J., and Farmer, J., concur; Hoffman, J., concurs separately
Concurrence Opinion
{¶ 15} I concur in the majority's disposition and, in general, with its analysis of Appellant's sole assignment of error. I write separately only to note I am not persuaded, as is the majority and the Tenth District Court of Appeals, the statute does not require the victim to actually experience mental distress. *6