Cable v. McHenryCable v. McHenry
DON MCHENRY, 5313 Rawlings Drive, Dayton, Ohio 45432 Defendant-Appellant, Pro Se
OPINION
Rendered on the 18th day of October, 2019.
DONOVAN, J.
{¶ 2} On March 8, 2019, plaintiff-appellee Brad Cable filed a petition for a CSPO against McHenry pursuant to
{¶ 3} The full hearing was held before the magistrate as scheduled on March 19, 2019. Neither Cable nor McHenry was represented by counsel, but both men testified and presented evidence. On April 16, 2019, the magistrate granted Cable‘s petition, the trial court adopted the order, and a final CSPO was entered against McHenry.
{¶ 4} On April 29, 2019, McHenry filed a motion to reconsider the issuance of the CSPO. (Dkt.13.) On May 3, 2019, before the magistrate could rule on the motion to reconsider, McHenry filed a motion to dismiss the CSPO. The magistrate scheduled a hearing on McHenry‘s motion to dismiss to be held on June 13, 2019. However, on May 14, 2019, McHenry filed a notice of appeal with this Court, thereby divesting the trial court of jurisdiction to make any further rulings in the case.
{¶ 5} Because they are interrelated, McHenry two assignments of error will be discussed together as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING
THE TRIAL COURT ABUSED ITS DISCRETION BY DISREGARDING APPELLANT‘S TESTIMONY AND EVIDENCE.
{¶ 6}
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 * * * [.]
{¶ 7}
{¶ 8} In the instant case, the record establishes that the parties, who live next door to one another, have a severely strained and contentious relationship. In his petition for a CSPO, Cable averred that on March 6, 2019, he observed McHenry standing in his own backyard near Cable‘s fence. Cable stated that McHenry was cursing while he stood there and told Cable to come on and that he ha[d] something for Cable. Cable also averred that he believed McHenry was throwing rat poison in his yard because Cable‘s dog had recently died from allegedly being poisoned with rat poison.
{¶ 9} Cable further stated that, the next day on March 7, 2019, he was changing the batteries in his outdoor security cameras when he observed McHenry again standing in his own backyard holding a shotgun. Cable heard McHenry state that he [was] going to shoot a motherf***er tonight. Based upon the two instances of McHenry‘s conduct as outlined in the petition, Cable stated that he needed a CSPO for the protection of himself, his fiance, and his niece.
{¶ 11} In his second assignment, McHenry essentially contends that the evidence presented was not sufficient for the issuance of a CSPO. To be entitled to a CSPO, the petitioner must show by a preponderance of the evidence that the respondent engaged in menacing by stalking, a violation of
{¶ 12} Menacing by stalking is defined as engaging in a pattern of conduct that knowingly cause[s] another to believe that the offender will cause physical harm to the other person or a family member of the other person or cause mental distress to the other person or a family member of the other person.
{¶ 13} 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.
{¶ 14} In the decision granting the CSPO against McHenry, the magistrate made the following findings of fact:
The parties are neighbors. Respondent [McHenry] videotapes Petitioner [Cable] and his family members. Respondent carried a gun in the yard and says he will shoot a mother f****r. Petitioner‘s dog was poisoned. Respondent was at Petitioner‘s daughter‘s window videotaping.
{¶ 15} Based upon these findings of fact, the magistrate found by a preponderance of the evidence that McHenry knowingly engaged in a pattern of conduct that caused Cable to believe that McHenry would cause him or his family members physical harm and/or mental distress. Thus, the CSPO was granted.
{¶ 16} The magistrate evidently credited the testimony of Cable where his
{¶ 17} Cable‘s testimony, if believed, established facts upon which the trial court could have reasonably relied in finding that McHenry engaged in a pattern of conduct in an effort to scare and intimidate Cable and his family. The evidence clearly established that McHenry acted in a threatening manner toward Cable. Specifically, he made overt verbal references in Cable‘s presence to shooting someone while brandishing a firearm. Cable further testified that McHenry was constantly videotaping him and his family members. Furthermore, Cable testified that he called the police in December 2018, for an incident in which he observed McHenry pointing a video camera into his daughter‘s window at their residence. We also note that McHenry did not deny that he was openly carrying a shotgun in his backyard on March 7, 2019. McHenry testified that he was not trying to threaten anyone, but rather that he was merely exercising his constitutional rights on his own property.
{¶ 18} On the record before us, we find that the trial court could have reasonably concluded that McHenry‘s actions were committed with the requisite culpability. From these facts, the trial court could have found that McHenry knew that his conduct was likely to cause Cable to believe that McHenry would cause him and/or his family to suffer
{¶ 19} McHenry‘s first and second assignments of error are overruled.
{¶ 20} Both of McHenry‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
HALL, J. and TUCKER, J., concur.
Copies sent to:
Brad Cable
Don McHenry
Hon. Timothy N. O‘Connell