[J.R.] v. [E.H.]
No. 16AP-431
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 14, 2017
2017-Ohio-516
SADLER, J.
(C.P.C. No. 16DV-02-0220); (REGULAR CALENDAR)
Rendered on February 14, 2017
On brief: Capital University Law School Family Advocacy Clinic, Ryan Sander, and Lorie McCaughan, for appellant. Argued: Ryan Sander and Lorie McCaughan.
On brief: Vassy Law Office, and Nicholas E. Vassy, for appellee. Argued: Nicholas E. Vassy.
APPEAL frоm the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
SADLER, J.
{¶ 1} Petitioner-appellant, J.R., appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, denying her petition for a civil protection order (“CPO“). For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant and respondent-appellee, E.H., began a relationship in 2010. They lived together in appellant‘s home until June 2014 when appellee moved out. Though the relationship continued “on and off” until December 2015, the testimony of the parties establishes that the relationship was acrimonious. (Tr. at 7.) In her testimony, appellant referred to appellee as her ex-fiancé and stated that appellee was “very abusive
{¶ 3} On February 12, 2016, appellant filed the instant petition alleging three separate incidents of domestic violence. Appellant testified that the most recent incident occurred in January 2016 after the relationship had ended. According to appellant, appellee entered her home without permission at 3:00 a.m., pointed a 9 mm handgun in her face as she lay in bed, and told her “I will shoot you like your dad did your mom.” (Tr. at 8.) According to appellant, on that day, appellee left the residence without further incident but left the weapon bеhind. Appellant testified that she took her children to a motel for the night because she feared appellee might return. She also changed the locks at her house because appellee still had a key.
{¶ 4} Appellant testified that on December 26, 2015, she and appellee got into an argument which culminated in a “shoving match.” (Tr. at 9.) Appellant maintained that she filed a police report regarding the incident and went to Florida for three weeks.
{¶ 5} With respect to the incident that occurred on October 26, 2015, appellant testified as follows:
I asked him to get out of the truck. We were leaving my mother‘s barn in London, Ohio. I asked [appellee] numerous times to get out of my truck because he just started being mentally and verbally abusive at that moment and it was starting to be a screaming mаtch. He was drunk and I was, like, I am not doing this with you. He tries to take my truck into oncoming traffic and said, Bitch, I will just kill us right here. Then 20 minutes go by, and I am trying to find an exit that is lit up. It is 3:00 a.m. Trying to find an exit to go in public, I then pull into a truck stop on Wilson and Interchange Drive off of 70 West, I go into the gas station, and my phone, it started recording but to my knowledge I knew none of this until days later that my phone even picked up what happened. I go in the gas station and I all looking around and I‘ll like, oh, my God, there is no one big enough to get him out of my car or
help me in any situation. So I get back in my truck and I tell him, you know, this is it. It is over. You can‘t do this to me anymore. And he keeps saying what did I do, and I just said I am tired of what you do. You verbally attack me, physically attack me, I‘m done. This is not good. And then I pull out of the parking lot and I am sitting at the light, he then yanks me from the driver‘s seat into the passenger seat and is pounding my head, my ribs, my face. I had seven concussions that day. I had a bloody -- like, bloody up here. He took a chunk out of my arm where he bit me. I still have the scar from October on my arm, they couldn‘t even stitch it back up, it is to the bone -- and left me. Left me there. Stole my truck right after he did all of that. He stole my truck and left me there. His sister came back with the truck.
(Tr. at 10-11.)
{¶ 6} The trial court admitted an аudiotape recording taken from appellant‘s cell phone as petitioner‘s exhibit 1.1 Appellant‘s counsel played the audiotape during appellant‘s direct examination, and she identified her voice and that of appellee. Appellee did not deny that his voice is on the audiotape. Because no transcription was made, the trial court listened to it in chambers prior to issuing its ruling.
{¶ 7} In the audiotape recording of the October 26, 2015 incident, appellant can be heard screaming for help and crying during her struggle with appellee. The audiotape also picked up the voice of a bystander who arrived at the scene after appellee fled in appellant‘s truck. The bystander, who identified himself as a firefighter, observed an injury to appеllant‘s wrist and stated it “looks like a burn.” Appellant responded “[h]e bit me.”2
{¶ 8} On May 10, 2016, the trial court issued a judgment entry wherein the trial court found “[apppellant] has failed to present any credible or competent evidence to prove her allegations by a preponderance of the evidence.” Appellant timely appealed to this court from the judgment of the trial court.
{¶ 9} Apрellant asserts a single assignment of error as follows:
The trial court erred when it denied Appellant‘s Petition for a Full Domestic Violence Civil Protection Order because the court‘s ruling was Against the Manifest Weight of the Evidence.
III. STANDARD OF REVIEW
{¶ 10} This court will not reverse the trial court‘s decision regarding the issuance of a CPO for being contrary to the manifest weight of the evidence if there is some competent, credible evidence going to the essential elements of the case. Bradley v. Cox, 10th Dist No. 04AP-118, 2004-Ohio-4840, ¶ 9, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St. 2d 279 (1978), syllabus. See also Strassell v. Chapman, 10th Dist. No. 09AP-793, 2010-Ohio-4376, ¶ 7-9. “We presume that the findings of the trial court are correct, because the trial court can view the witnesses and weigh the credibility of the parties’ testimony.” Guthrie v. Long, 10th Dist. No. 04AP-913, 2005-Ohio-1541, ¶ 13, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984). “[T]he weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact.” Guthrie at ¶ 13, citing State v. Jamison, 49 Ohio St. 3d 182 (1990), cert. denied, 498 U.S. 881.
IV. LEGAL ANALYSIS
{¶ 11} For purposes of a domestic violence protectiоn order,
(A) As used in this section:
(1) “Domestic violence” means the occurrence of one or more of the following acts against a family or household member:
(a) Attempting to cause or recklessly causing bodily injury;
{¶ 12}
(C) A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person‘s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that such circumstances are likely to exist. * * *
(E) When recklessness suffices to establish an element of an offense, then knowledge or purpose is also sufficient culpability for such element.
{¶ 13} Though
{¶ 14} At the conclusion of the hearing, the trial court announced its decision on the record as follows:
THE COURT: Back on the record in the matter of Raines versus Hanеs, 16DV-220, let the record reflect I have had an opportunity to review the exhibits, and more closely listening to the tape, and I‘ve had an opportunity to review the notes. In regards to the Civil Protective Order and the hearing today, I can state unequivocally the two parties involved should not, repeat, should not be in a relationship. If I were to believe either one of you, there is more than еnough conflict here that this relationship should terminate, end of discussion. In regards to the incident in January, I am troubled as to what may or may not have occurred, but the description left some real doubt in my mind.
In regard to the incident that occurred in December, once again, I have a hard time fathoming who started these arguments and how they escalated to the point that people feel thе need to run and go to a hotel and, et cetera. So really the incident that I spent the time trying to understand is the incident in October and how we got to a point that the two of you are beating on each other in a truck and why that occurred. I heard testimony as to injury but, unfortunately, I don‘t have verification. I hear testimony that the police are a regular person you have contact with on а regular basis, but I don‘t have any reports to tell me why. So I have these two large gaps in making my determination as to what occurred and who is the more credible.
The fact that she has been before this court -- domestic court on numerous prior occasions and been dismissed have no b[e]aring. That is not an uncommon occurrence for domestic violence in the usual so that doesn‘t tell me anything one way or the other. So having explained to you my thought process, and understanding the significant implications of a Civil Protective Order, I do not find sufficient evidence for the granting of a Civil Protective Order in this matter and the request for the same is hereby denied.
(Emphasis added.) (Tr. at 61-63.)
{¶ 15} The “statutory criterion to determine whether or not to grant a civil protection order pursuant to
{¶ 16} We are mindful that this is not an appeal from an order granting an ex parte CPO which would have required proof that a CPO was “necessary to protect [appellant] from domestic violence” or the “[i]mmediate and present danger of domestic violence.”
{¶ 17} Pursuant to
Q. Now, there is an argument, do you -- do you -- are you guys both arguing back and forth?
A. Yes. Yeah.
Q. Okay. And then what happens?
A. She went into the gas station, came back out and pulled to the traffic light. It got pretty heated and I slapped the dash. We were yelling at each other. She scratched my face, which the officer I believe took pictures. When she was gouging me right here, I bit her on the backside of her arm, so she has pictures of that also. She jumped out of the vehicle she was driving, ran over, she thought there were officers there and security there and she jumped on the ground and started screaming like she was really hurt. I was scared I was going to be arrested for something I didn‘t do, so I drove off a couple blocks away to my sister‘s house and had her take the vehicle back to her.
(Tr. at 48.)
{¶ 19} On redirect, appellee described the event as follows:
Q. If we can talk briefly about the bite on the arm. Why don‘t you go a little more in depth as far as what actually physically happened in that vehicle?
A. We were arguing. We were at the stoplight. I had asked her about some guy she was talking to, basically, and she heard -- she -- whenever, like, she gets really angry and screams and she push -- put her hand in my face like this and started scratching me. So, basically, I just pushed her hand up. When I pushed her up, I bit her on the arm and I just pushed her. The next thing I know she gets out the vehicle and she thought she seen two officers, she started running in their direction screaming.
Q. So when that happened were you attempting to, basically, get her away from you?
A. Yeah, I didn‘t want to be scratched anymore.
(Tr. at 57-58.)
{¶ 21} Moreover, self-defense is an affirmative defense, which means that appellee had the burden to establish that he caused or attempted to cause bodily injury to appellant in self-defense. Burke at ¶ 14. See also
{¶ 22} In support of the conclusion that appellant failed to produce competent, credible evidence that she was the victim of domestic violence, the trial court also stated that there was no verification that appellant sustained an injury on October 26, 2015. There is, however, no requirement in
{¶ 24} For the foregoing reasons, we sustain appellant‘s solе assignment of error, reverse the judgment of the trial court, and remand this case for the trial court to determine the scope of the domestic violence CPO.
V. CONCLUSION
{¶ 25} Having sustained appellant‘s sole assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas, Domestic Division, Juvenile Branch, and remand this matter for the trial court to determine the scope of the domestic violеnce CPO.
Judgment reversed; cause remanded with instructions.
DORRIAN and HORTON, JJ., concur.