MICHAELA PINKSTON v. AARON WHITE
CASE NO. CA2019-06-094
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/16/2019
[Cite as Pinkston v. White, 2019-Ohio-5165.]
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS DOMESTIC RELATIONS DIVISION Case No. DV18-08-0420
Berry & Karl, LLC, Kristie A. Karl, 312 Walnut Street, Suite 1600, Cincinnati, Ohio 45202, for appellant
PIPER, J.
{1} Respondent-appellant, Aaron White, appeals from the decision of the Butler County Court of Common Pleas, Domestic Relations Division, granting a domestic violence civil protection order (“DVCPO“) against him in favor of petitioner-appellee, Michaela
{2} In August 2017, Pinkston and White began a sexual relationship, which resulted in the birth of A.W. in July 2018. Thereafter, on August 6, 2018, Pinkston petitioned for, and was granted, an ex parte DVCPO for herself and A.W. In the petition, Pinkston alleged that an altercation occurred between the parties when she went to White‘s home to retrieve some of A.W.‘s belongings. Upon arriving at White‘s home, Pinkston discovered that a “friend” of White‘s, whо was later identified as White‘s girlfriend, was present. According to Pinkston, she was conversing with White‘s girlfriend when White suddenly began “choking” Pinkston and attempted to “slam” her to the ground. Pinkston stated White continued to choke her and dug his nail into her skin. She further alleged that White said “I will break your face” and tried to “bang” her head against a trailer. Pinkston then claimed White took A.W. from his “seat” and would “not give him back” until the police arrived. Pinkston stated she was afraid to take A.W. awаy from White without police assistance.
{3} In October 2018, a two-day final domestic violence hearing was held before a magistrate. Pinkston, White, White‘s mother, White‘s neighbor, White‘s girlfriend, and one of the responding officers testified at the hearing. After the hearing, the magistrate denied Pinkston‘s request for a DVCPO and dismissed the ex parte DVCPO on the merits. In her written decision, the magistrate found that Pinkston had failed to prove, by the preponderance of the evidenсe, that White engaged in acts or behaviors that constituted domestic violence as defined in
{4} After a hearing, the trial court overruled the decision denying the final DVCPO, finding that a denial of a DVCPO was inappropriate based on the facts in evidence and the transcript of the hearing. As such, the trial court issued a DVCPO and named Pinkston as the sole person protected by the order.
{5} White now appeals, raising two assignments of error. For ease of discussion, White‘s assignments of error will be addressed together.
{6} Assignment of Error No. 1:
{7} THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVIEWING THE MAGISTRATE‘S DENIAL OF DVCPO PURSUANT TO CIV.R. 53.
{8} Assignment of Error No. 2:
{9} THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT OVERRULED THE MAGISTRATE‘S DENIAL OF A CIVIL PROTECTION ORDER AND ISSUED A CIVIL PROTECTION ORDER.
{10} White initially argues the trial court erred in denying the DVCPO pursuant to
{11} In the instant matter, the trial court granted Pinkston a DVCPO pursuant to
{12} A magistrate‘s order granting a protection order after a full hearing is not effective unless adоpted by the trial court.
{13} The objecting party “has the burden of showing that an error of law or other defect is evident on the face of the order, or that the credible evidence of record is insufficient to support the granting or denial of the protection order, or that the magistrate abused the magistrate‘s discretion in including or failing to includе specific terms in the protection order.”
{14} In the instant matter, the record reflects the magistrate cited
{15} On appeal, White argues the trial court errеd in conducting its own independent review before ruling on Pinkston‘s objections because orders issued pursuant to
{16} Furthermore, the implicatiоn of an independent review by the trial court is also supported by the recent amendment of
{17} Although the trial court, at times, mistakenly referenced
{18} White next argues that the trial court improperly “substituted its judgment on the credibility and believability” of the witnesses and that its deсision granting a DVCPO was against the manifest weight of the evidence and contrary to law. Similarly, White also argues that Pinkston failed to meet her burden of proving that the credible evidence of record was insufficient to support the initial denial of the DVCPO.
{19} Pursuant to
{20} As defined by
(i) Attempting to cause or recklessly causing bodily injury;
(ii) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 [menacing by stalking] or 2911.211 [aggravated trespass] of the Revised Code[.]
{21} “A trial court‘s decision to deny or grant a [DV]CPO will not be reversed where such decision is supported by the manifest weight оf the evidence.” Glancy v. Spradley, 12th Dist. Butler No. CA2012-02-024, 2012-Ohio-4224, ¶ 8. Under a manifest weight challenge, this court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.” Schneble v. Stark, 12th Dist. Warren Nos. CA2011-06-063 and CA2011-06-064, 2012-Ohio-3130, ¶ 67; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.
{22} At the full hearing, Pinkston testified that she felt White was going to hurt or kill her. This belief wаs based, in part, on an incident which occurred on August 5, 2018. Pinkston testified that she went to White‘s home that evening to retrieve “baby stuff.” When she arrived, White and White‘s girlfriend, Dawnie Komotios, were in White‘s garage. At that point, White, Komotios, and Pinkston began arguing about the nature and duration of White and Komotios’ relationship. During the argument, Pinkston testified White “came full-fledged” at her, choked her, and held her against his trailer. Pinkston indicated White “had [her] pinned up against the trailеr” before she was able to break free. She further indicated that
{23} Pinkston further testified that she sustained injuries as a result of the incident and photographs documenting her injuries were submitted into evidence. Pinkston described her injuries as bruising on her arms in the shape of a handprint, marks on her neck and skin from where White‘s nail dug into her skin, and red marks on her neck. Pinkston stated she sought medical attention for those injuries “some hours” after the incident.
{24} The court also heard the testimony of White‘s neighbor, Lindsay Holliday, who lived across the street from White. Holliday indicated she was unfamiliar with Pinkston, but had seen White every day “out front or in his garage” for approximately two years. According to Holliday, she was in bed when she heard “banging that seemed unusual.” At that point, she got up, looked out her second-story bedroom window, and saw “the struggle between the two people.” The neighbor then described “the struggle,” and indicated “[White] was slamming [Pinkston] repetitively into the side of the trailer - - which was the sound that [she] heard.” Although Holliday was “so alarmed [she] didn‘t count” the amount of time she witnessed White “slam” Pinkston into the trailer, she testified it was “more than just several.” According to Holliday, although it was dark at the time of the incident, she was “positive” that it was White doing the “slamming.” She also confirmed she had no doubt that she witnessed White slamming Pinkston into the trailer.
{25} Holliday further testified that, because she was afraid someone was going to get hurt, she called 9-1-1. At that point, a recording of the neighbor‘s 9-1-1 call was played for the court, which was transcribed into the record. On the recording, Holliday told the dispatcher that there was a “domestiс issue” directly across the street from her home. She
{26} The court then heard testimony from White, who testified that he had never been physically violent with Pinkston and offered his version of the altercation on August 5, 2018. Specifically, White indicated that when Pinkston unexpectedly showed up at his residence she was “irate,” screaming, and cussing at White. According to White, Pinkston was making a scene and then came toward his garage where his girlfriend, Komotios, was standing. At that point, White testified he put his hands out, stopped Pinkston, and restrained her by “pushing her back[.]” While White was restraining Pinkston, Pinkston was “swinging on [him;]” however, he failed to inform the officers of Pinkston‘s “swinging.” White further admitted that Pinkston fell on the ground while he was restraining her; however, White stated he only restrained Pinkston to stop her from coming into the garage. White reiterated in his testimony that he never hit or slammed Pinkston against the side of the trailer.
{27} In the midst of the struggle, White called the police and informed them that he was taking A.W. to the garage. According to White, when the police arrived both parties stated they had not been injured or physically harmed. At that point, the police told White to return A.W. to Pinkston, which he did. At the hearing, White estimated the altercation lasted approximately 10 minutes before the police arrived.
{28} White also offered testimony from Officer Carter, who was one of the two officers who responded to the scene. The officer testified that when he arrived at the residence, the parties were separated, and he spoke with Pinkston. According to the officer, Pinkston indicated she was not injured or assaulted, but that she wаs upset because she needed help with A.W. The officer testified he did not see any visible injuries on Pinkston that evening, and that she did not request medical attention. The officer further stated that he did not interview or otherwise follow up with the 9-1-1 caller.
{29} Komotios and White‘s mother also testified on White‘s behalf. Komotios testified that she was present during the altercation and never saw White slam Pinkston into the trailer. Rather, she indicated that Pinkston arrived at White‘s rеsidence and started arguing with Komotios and White regarding their relationship. During the argument, Pinkston came toward Komotios and at that point, White put his arm out and Pinkston went “crazy,” “swinging and kicking” while he was “restraining” her. Komotios then testified that White ultimately released Pinkston, and Pinkston said “I‘ll tell them you hit me.” After being released, Pinkston attempted to enter the garage a second time and White restrained her again, “taking her like against the trailer[.]” White‘s girlfriend then indicated Whitе attempted to take A.W. from the car, which prompted another struggle between the parties. At that point, White called the police. Komotios admitted she did not inform the officers that Pinkston attempted to come after her twice. White‘s mother testified that on the evening of the incident White called her because Pinkston was “going crazy” and talking to Komotios. Similar to Komotios’ testimony, White‘s mother indicated she heard someone sаy, “I‘m gonna tell the police you hit me.” According to White‘s mother, her call with White lasted a few minutes and she arrived at White‘s residence a few minutes later. Neither White‘s mother nor Komotios saw any injuries on either party the night of the incident.
{30} After hearing the above testimony, the magistrate concluded that the testimony
{31} After reviewing the record, we find that Holliday‘s and Pinkston‘s testimony, if believed, prove by a preponderance of the evidence that White engaged in an act of domestic violence against Pinkston. As such, we find the trial court‘s decision granting the DVCPO was supported by sufficient evidence and was not against the manifest weight of the evidence.
{32} As noted above, White initially argues the trial court wrongfully substituted its judgment for that of the magistrate and discоunted the credibility determination regarding the testimony of Pinkston and Holliday. ”
{33} We also reject White‘s argument that the trial court‘s finding that White engaged in domestic violence in violation of
{34} Similarly, we disagree with White‘s claim that the record does not reflect that Pinkston was injured as a result of White‘s actions. The record reflects Pinkston testified that she sustained bruises in the shape of handprints, red marks on her neck, and that White‘s nail dug into her skin and neck. Although Pinkston informed Officer Carter that she had not been injured as a result of the incident, Officer Carter testified that, at thе time of their interview, Pinkston was excited from the argument and A.W. remained with White in the garage. Moreover, despite her indication she had not been injured, Pinkston testified she ultimately sought medical attention shortly after the incident and took “picture[s] from * * * the incident from when he grabbed [her] arm.” Those photographs were admitted into evidence. Pinkston also sought a protection order the day after the incident occurred. As such, we find the recоrd adequately reflects that Pinkston was injured and placed in fear of imminent serious physical harm the night of the incident.
{35} Based on the facts in evidence and the transcript of the hearing, we find, like the trial court, that granting the DVCPO was appropriate in this case. Stated differently, pursuant to
{36} Accordingly, White‘s first and second assignments of error are overruled.
{37} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.