JOHN MASUCCI v. CARL DAVID BURNBRIER
CASE NO. 14 MA 78
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
September 30, 2015
[Cite as Masucci v. Burnbrier, 2015-Ohio-4102.]
Hоn. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio, Case No. 14 CV 320. JUDGMENT: Reversed. Vacated.
For Plaintiff-Appellee: John Masucci, Pro se, 7495 Cobblers Run, Poland, Ohio 44514
For Defendant-Appellant: Atty. Jeffrey A. Kurz, 42 N. Phelps Street, Youngstown, Ohio 44503
WAITE, J.
{¶1} Appellant Carl David Burnbrier appeals the issuance of a civil stalking protection order (stalking CPO) granted by the Mahoning County Court of Common Pleas. Appellant argues that the trial court abused its discretion in issuing the stalking CPO because there was no evidence of a pattern of conduсt of menacing. Appellant contends that the evidence Appellee John Masucci presented at the final hearing was hearsay and inadmissible, and therefore, could not establish any incidents of menacing to support a stalking CPO. Appellee has not responded to this appeal. The evidence presented at trial was hearsay, and there are no arguments that any hearsay exception applies. Appellant is correct that, absent the hearsay evidencе, there is no proof of a pattern of menacing to support the stalking CPO as required by
Case History
{¶2} On February 3, 2014, Appellee John Masucci filed a petition for a stalking CPO against Appellant. Appellee filed on behalf of himself, his wife Kristin, and his two daughters S.A. and S.P., both minors. The petition was filed and litigated pro se. The case went to hearing before a magistrate on February 28, 2014. Appellee testified in support of the petition, with the questioning primarily being done by the magistrаte because Appellee did not have counsel. Appellee also called his wife to testify, and he questioned her himself.
{¶3} Both Appellee and his wife testified about an alleged phone call between Appellee‘s daughter S.P. and оne of her friends in which Appellant was
{¶4} The magistrate granted the stalking CPO until January 2, 2015. Appellant filed objections to the magistrate‘s decision, and on May 29, 2014, the trial court, after reviewing the magistrate‘s hearing transcript, overruled the objections and adopted the magistrate‘s decision. This timely appeal followed.
{¶5} On July 22, 2014, we determined that the trial court‘s adoption of the magistrate‘s decision did not constitute a final appealable order, and the case was remanded for 30 days for the court to issue an appealable order. On July 30, 2014, the trial court issued the stalking CPO, and this appeal continued. Appellant filed a brief on February 4, 2015. Appellee did not rеspond.
The Trial Court erred against the manifest weight of the evidence when it granted the civil protection order because Appellee failed to meet his burden of demonstrating, by a preponderance of evidence, that Appellant engaged in a violation of
ORC §2903.211 by engaging in a pattern of conduct that caused Appellee to believe that Appellant would cause physical harm or mental distress to him or his family.The Trial Court errеd when it permitted Appellee and his wife to testify to matters that are inadmissible as hearsay, speculation and conjecture, and to which they had no personal knowledge.
{¶6} Appellant argues that some of the evidence relied on by the trial court was inadmissible hearsay, and without the hearsay evidence there was no proof of a pattern of conduct of menacing by stalking to support a stalking CPO. Appellant is correct in his assertion.
{¶7} Issuance of a protection order pursuant to
{¶8} When looking at a pattern of conduct, the court must take into consideration everything; i.e., the forcible entries, the phone calls, the thinly veiled threats, and the face-to-face meetings between the parties, even if some of respondent‘s actions comprising this behavior, considered in isolation, might not appear to be particularly threatening. Tuuri v. Snyder, 11th Dist. No. 2000–G–2325, 2002 WL 818427, *3.
{¶9} A court of appeals reviews a trial court‘s decision to grant a civil protection order under an abuse of discretion standard. Nguyen v. Chaffee, 7th Dist. No. 08 CO 35, 2009-Ohio-3352, ¶7. An abuse of discretiоn suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶10} Appellant‘s primary objection to the evidence that was presented at the magistrate‘s hearing is that it was inadmissible hearsay. He argues that the remaining non-hearsаy evidence did not establish a pattern of conduct to support a stalking CPO. Hearsay is defined under
{¶11} Thеre were three incidents used to support the petition. The first was a threat Appellant allegedly made to Appellee‘s daughter S.A. S.A. did not testify. Appellee testified about the alleged threat, which he did not hear, and stated that his other daughter heard it in the background during a phone call. The phone call allegedly took place between Appellee‘s daughter S.P. and one of her friends, neither of whom was called to testify about the phone call. A recording of the phone call itself was not introduced as evidence. Allegedly, Appellant was heard to have said in the background of the call that he was going to kick [her] ass. (Tr., p. 3.)
{¶12} The second incident involved Appellant going to Appellee‘s house to drop off tennis shoes for his daughter, who was staying with Appellee for the weekend. Appellant appeared to be intoxicated and allegedly stated to Appellee‘s wife that if he could not personally deliver the shoes he was going to take his daughter bаck home with him.
{¶13} The third incident was a text message from Appellant to his ex-wife stating that it was time to take action. (Tr., pp. 35-36.)
{¶14} Much of the evidence in support of the stalking CPO was given by Appellee while he was questioned by the court. Appellee was representing himself in this matter and the magistrate hearing the case did most of the questioning simply to ascertain what direct information, if any, Appellee had as to two of the incidents. The
{¶15} Appellant raised multiple hearsay objections to the testimony about the alleged threat made to Appellee‘s younger daughter. Although the сourt agreed that the testimony was hearsay, the objections were overruled. (Tr., p. 4.) The alleged threat does not qualify as non-hearsay under
{¶16} Appellee‘s wife testified about the other two incidents that were used to support the stalking CPO. She testified that Appellant arrived at her home intoxicated and told her that he would take his daughter with him if he could not personally deliver a pair of tennis shoes to her. The parties did not dispute that Appellant had a legal right to take custody оf his own child, and Appellee‘s wife clearly indicated that no actual threat of any kind was made during the incident. (Tr., pp. 24, 31.) While this incident could be used to support the conclusion that
{¶17} Appellee‘s wife also discussed a supposedly threatening text message from Appellant, but the messаge is not part of the record. The message was apparently sent by Appellant to his ex-wife, and was then forwarded to Appellee‘s wife‘s cell phone. (Tr., p. 25.) Once again, we are faced with multiple levels of hearsay in an attempt tо introduce an alleged admission of a party opponent under
{¶18} Once the hearsay evidence is excluded from this case, it is clear that the stalking CPO should not have been granted. Based on the lack of appropriate evidence of any clear pattern of menacing, the trial court abused its discretion in issuing the stalking CPO. Appellant‘s assignments of error are sustained and the stalking CPO is vacated.
{¶19} On appeal Appellant argues that the evidence used to support the stalking CPO was inadmissible hearsay and was insufficient to establish menacing by stalking. Appellee has not responded. The record indicates that an alleged phone conversation involving Appellee‘s daughter was hearsay and should not have been admitted. The remaining evidence does not support that there was a pattern of menacing, and without a pattern of menacing consisting of at leаst two incidents, there is no basis for issuing a stalking CPO. Although the stalking CPO has already expired, Appellant is entitled to have it removed from his record. Therefore, Appellant‘s assignments of error are sustained, the judgment of the trial court is reversed, and the stalking CPO is hereby vacated.
Donofrio, P.J., concurs.
DeGenaro, J., concurs.