J.H. v. S.P.J.H. v. S.P.
Rendered on September 5, 2013
Tyack, Blackmore, Liston & Nigh Co., LPA, and Joseph A. Nigh, for appellee.
Elizabeth N. Gaba, for appellant.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
BROWN, J.
{¶ 1} S.P., by and through her mother, T.P., respondent-appellant, appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, in which the court granted the request for a juvenile protection order filed by J.H., by and through her mother, S.H, petitioner-appellee.
{¶ 2} Appellant is a minor female and was a sophomore in high school at the time of the present incident. Appellee is a minor female and is in the same grade at the same high school as appellant. Appellant and appellee were friends from seventh to ninth
{¶ 3} On December 30, 2011, appellee‘s mother filed a petition for a juvenile civil protection order (“CPO“) against appellant. The trial court granted an ex parte juvenile CPO. On January 10, 2012, the trial court entered another ex parte juvenile CPO. On May 18, 2012, the magistrate held a full hearing and subsequently issued a juvenile CPO against appellant. Appellant requested findings of fact and conclusions of law, and the magistrate issued an amended decision on July 31, 2012. Appellant filed objections, and the trial court issued a decision on August 24, 2012, overruling appellant‘s objections. Appellant appeals the judgment of the trial court, asserting the following assignments of error:
- The trial court erred when it determined that the Appellant engaged in menacing by stalking even though no evidence was presented to establish the legal elements necessary to make such a finding. The evidence was insufficient to support the finding that the Appellant engaged in menacing by stalking.
- The trial court erred when it determined that the Appellee‘s allegations and absence on the day of trial met the legal standards necessary to issue a juvenile order of protection pursuant to
R.C. 2151.34(D)(1) . - The decision of the trial court that the Appellant acted in a manner towards the Appellee which would allow the issuance of a juvenile protective order was against the manifest weight of the evidence.
{¶ 4} We will address appellant‘s first and third assignments of error together, as they both raise essentially the same argument. Appellant argues in her first assignment of error that the trial court‘s determination that she engaged in menacing by stalking was based upon insufficient evidence. Appellant argues in her third assignment of error that the trial court‘s decision was against the manifest weight of the evidence.
(C)(1) Any of the following persons may seek relief under this section by filing a petition with the court:
* * *
(b) Any parent or adult family or household member on behalf of any other family or household member;
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(2) The petition shall contain or state all of the following:
(a) An allegation that the respondent engaged in a violation of section
2903.11 ,2903.12 ,2903.13 ,2903.21 ,2903.211 ,2903.22 , or2911.211 of the Revised Code, committed a sexually oriented offense, or engaged in a violation of any municipal ordinance that is substantially equivalent to any of those offenses against the person to be protected by the protection order, including a description of the nature and extent of the violation;* * *
(E)(1)(a) After an ex parte or full hearing, the court may issue any protection order, with or without bond, that contains terms designed to ensure the safety and protection of the person to be protected by the protection order.
{¶ 6} In 2010,
{¶ 7} The petitioner‘s burden of proof in obtaining a juvenile CPO and the standard for reviewing such orders comes from analogous case law addressing adult CPOs. Insani v. Federici, 2d Dist. No. 2010 CA 79, 2011-Ohio-6322, ¶ 22, citing In re E.P. at ¶ 14. Thus, “the trial court must find that petitioner has shown by a preponderance of the evidence that petitioner [is] in danger of * * * violence.” Felton v. Felton, 79 Ohio St.3d 34 (1997), paragraph two of the syllabus. Preponderance of the evidence is defined as “that measure of proof that convinces the judge or jury that the existence of the fact sought to be proved is more likely than its nonexistence.” State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54. Like the statute in Felton,
{¶ 8} To obtain a juvenile CPO under
(A)(1) No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender
will cause physical harm to the other person or cause mental distress to the other person. (2) No person, through the use of any electronic method of remotely transferring information, including, but not limited to, any computer, computer network, computer program, or computer system, shall post a message with purpose to urge or incite another to commit a violation of division (A)(1) of this section.
* * *
(D) As used in this section:
(1) “Pattern of conduct” means two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents. * * * [T]he posting of messages or receipt of information or data through the use of an electronic method of remotely transferring information, including, but not limited to, a computer, computer network, computer program, computer system, or telecommunications device, may constitute a “pattern of conduct.”
(2) “Mental distress” means any of the following:
(a) Any mental illness or condition that involves some temporary substantial incapacity;
(b) Any mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health services, whether or not any person requested or received psychiatric treatment, psychological treatment, or other mental health services.
{¶ 9} The relevant testimony at trial was as follows. Phillip Smith, the assistant principal at appellant and appellee‘s high school, testified that, in November 2010, the school gave appellant an in-school suspension for threats she made toward appellee after previously being warned to cease such activities. He then testified that, in January 2012,
{¶ 10} Appellee testified that, in November 2010, appellant told her on the phone that she was going to beat her up. Appellant also texted her and told her she needed to watch her back because she was going to beat her up. Appellee believed these communications were threatening. The two girls briefly reconciled and became friends again until November 2011, when appellant began posting threatening Twitter messages and making threatening phone calls.
{¶ 11} Appellee testified that, on December 27, 2011, appellant tweeted “yeah you are scared considering you won‘t answer your fucking phone! Pussy ass bitch.” Appellee said she felt threatened by this tweet. Appellee stated that her mother immediately called appellant and told her to stop. Appellant then tweeted, appellee “is really havin her mom call me? Hahahhha #mature.” Also on December 27, 2011, appellant tweeted, “[appellee] * * * him while we were dating,” which refers to appellant‘s belief that appellee had sexual contact with appellant‘s boyfriend. Around the same time, appellant phoned appellee and told her she needed to watch her back because appellant was going to “beat [appellee‘s] ass.” Appellee then tweeted, “After that call I‘m really scared #not.” Appellee said the tweet was in response to the call from appellant, and appellee said she really was not scared.
{¶ 12} Appellee further testified that, on January 4, 2012, the day appellant was served with the temporary CPO, appellant tweeted, “haha wow you are a scared little bitch.” In March 2012, while the temporary CPO was in effect, appellant asked appellee as they passed in the school hallway if she had a problem with her, to which appellee responded “no.” She asked appellant if she had a problem with her, and appellant said, “yes.” Appellant‘s actions violated the specific terms of the CPO. Appellee reported such to school officials. Also, appellee stated that appellant had walked through the gym on her way to softball practice and would stand with her arms crossed staring at her during cheerleading practice, which was also in violation of the CPO. Appellee reported this to school officials. Appellee said she feels threatened by appellant. Appellee also testified that, after the temporary CPO was issued, appellee tweeted from school, “I‘m scared of my
{¶ 13} A photograph was presented during appellee‘s testimony in which appellee and appellant were sitting near each other at a high school softball game the weekend before the hearing. Appellee testified she knew appellant was at the game but she was not afraid because she was with her family. Appellee also said that she sat on the opponent‘s bleachers to stay away from appellant, and she was in the photograph in close proximity to appellant because she was with her mom speaking to a friend‘s mom at the time. Appellee said that appellant‘s actions have ruined her first two years of high school, and she wants them to stop so she can enjoy her last two years.
{¶ 14} T.P., appellant‘s mother, testified that she monitored appellant‘s tweets and other electronic communications and discussed and reviewed her Twitter postings with her every night. T.P. said appellant now used her Twitter account appropriately.
{¶ 15} Appellant first argues that appellee never testified that she feared appellant would commit future offenses against her. Although we agree appellee never explicitly testified to such, the trial court had sufficient testimony to conclude such. Appellant was previously warned by the school to cease making threats to appellee, but she failed to do so. In November 2010, the school gave appellant an in-school suspension for continuing to make threats against appellee. Appellee‘s mother also asked appellant to stop making threats in December 2011, but the threats continued. The school again warned appellant in January 2012 to stop. Appellant‘s threats included threats of physical violence, and appellee testified that she, in fact, felt threatened by them. Appellee also testified that, even after the temporary CPO went into effect, appellant still spoke to her in the hallway in an aggressive manner and stared at her in the gym with her arms folded, both violations of the CPO. After the temporary CPO was issued, appellee tweeted from school, “I‘m scared of my life.” Appellee also said that she wanted the CPO so that appellant‘s actions would stop and she could enjoy her final two years of high school. Therefore, it was apparent by the evidence presented that appellee feared appellant would continue
{¶ 16} Appellant next asserts that there was no evidence presented to support that appellee suffers a present risk of harm from appellant. We disagree. Appellant has repeatedly threatened appellee that she needed to watch her back and that she would beat her up. Appellee feels threatened by appellant‘s behavior. Appellant has been suspended for her actions and reprimanded by school officials but continues to engage in menacing behavior. The evidence supports that appellee suffers a present risk of harm from appellant.
{¶ 17} Appellant next argues that appellee failed to demonstrate any “pattern of conduct,” as defined by the menacing by stalking statute, because both girls would engage in tweeting and “sniping” at each other, and appellant never actually harmed appellee. Appellant contends that appellee had no reason to believe her words were anything more than words without significance. Appellant points out that appellee never cried or cowered in fear or suffered depression. We disagree with appellant‘s contentions. As is plainly evident by the testimony summarized above, a pattern of abusive and threatening conduct existed, starting with multiple incidents in November 2010 and continuing on multiple occasions in December 2011 and January 2012. Although appellant seeks to characterize the behavior as mere mutual “sniping,” the record contains no evidence of threats made by appellee toward appellant. Furthermore, despite the lack of actual physical harm or cowering, neither of which are necessary prerequisites to granting a CPO, appellee testified that appellant‘s words and actions instilled fear in her and she felt threatened by them. Although appellant takes the position that her words were “without significance,” appellee‘s testimony evinces otherwise, and the trial court apparently believed appellee.
{¶ 18} Appellant further argues that appellee failed to demonstrate that appellant “knowingly” caused appellee to believe she would cause her physical harm or mental
{¶ 19} Although we agree there was no evidence that appellant actually carried out her threats of physical violence against appellee, the trial court had sufficient evidence to conclude that appellant knowingly caused appellee to believe she would cause her physical harm or mental distress. Appellant‘s repeated tweets and text messages threatening to beat appellee up can be characterized as nothing less than knowing attempts to cause appellee to believe appellant would cause her physical harm.
{¶ 20} In sum, appellee presented evidence from which the trial court could have concluded, by a preponderance of the evidence, that if a juvenile CPO were not granted, appellee was in danger of physical harm or mental distress. The trial court‘s conclusion was not against the manifest weight of the evidence. Appellant‘s first and third assignments of error are overruled.
{¶ 21} Appellant argues in her second assignment of error that the trial court erred when it determined that appellee‘s allegations and absence on the day of trial met the legal standards necessary to issue a juvenile CPO pursuant to
{¶ 22} Appellant‘s arguments are without merit. We first note that appellant failed to raise this issue before the trial court. It is axiomatic that a litigant‘s failure to raise an issue at the trial court level waives the litigant‘s right to raise that issue on appeal. Shover v. Cordis Corp., 61 Ohio St.3d 213, 220 (1991), overruled on other grounds in Collins v. Sotka, 81 Ohio St.3d 506 (1998). Thus, appellate courts generally will not consider any error a party failed to bring to the trial court‘s attention at a time when the trial court could have avoided or corrected the error. Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982). Appellant‘s failure to raise this issue before the magistrate or trial court waives the issue for purposes of appeal.
{¶ 23} We also note that motions for CPOs are civil in nature, not criminal. See Butcher v. Stevens, 182 Ohio App.3d 77, 2009-Ohio-1754 (4th Dist. 2009). The right to confront one‘s accusers is a fundamental right embodied in the Sixth Amendment to the U.S. Constitution and applies to state criminal trials under the Fourteenth Amendment Due Process Clause. State v. Good, 12th Dist. No. CA86-11-168 (Dec. 28, 1987), citing Pointer v. Texas, 380 U.S. 400 (1965). Thus, the Confrontation Clauses of the U.S. and Ohio Constitutions apply only to criminal matters. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, ¶ 4.
{¶ 24} Also, as appellee points out, there is no requirement in a civil case that the party to that action be personally in the courtroom during trial. Williams v. Bolding, 6 Ohio App.3d 48, 49 (10th Dist. 1982). Despite S.H.‘s absence at the full hearing, she and appellee were represented by counsel. Further, a subpoena was not issued for the appearance of S.H., which would be a prerequisite to requiring her presence at the trial. See id. If it was necessary to appellant‘s defense that S.H. be available for cross-examination, it was her obligation to serve her with a subpoena. See Dornbirer v. Osborn, 10th Dist. No. 94APG01-43 (May 31, 1994), citing Williams.
{¶ 25} Nevertheless, as quoted above,
Judgment affirmed.
KLATT, P.J., and T. BRYANT, J., concur.
T. BRYANT, J., retired of the Third Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).