RORY S. RETTERER, PETITIONER-APPELLEE, v. MICHAEL J. LITTLE, RESPONDENT-APPELLANT.
CASE NO. 9-11-23
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
January 17, 2012
[Cite as Retterer v. Little, 2012-Ohio-131.]
Appeal from Marion County Common Pleas Court Trial Court No. 2011 CV 0283 Judgment Affirmed and Cause Remanded
APPEARANCES:
J. C. Ratliff and Jeff Ratliff for Appellant
Michael N. Schaeffer and Scott N. Schaeffer for Appellee
{1} Respondent-Appellant, Michael Little (“Michael“), appeals the judgment of the Court of Common Pleas of Marion County granting Petitioner-Appellee, Rory Retterer (“Rory“), and his wife, Lorinda Retterer (“Lorinda“), a civil stalking protection order (“CSPO“) against Michael. On appeal, Michael contends that the record contains insufficient evidence to support the issuance of the CSPO for Rory; that the record contains insufficient evidence to support the issuance of the CSPO for Lorinda; that granting Rory the CSPO was against the manifest weight of the evidence; and, that including Lorinda as a protected person under the CSPO was against the manifest weight of the evidence. Based on the following, we affirm the judgment of the trial court.
{2} On April 27, 2011, Rory filed a petition seeking a CSPO against Michael, on behalf of himself and Lorinda. That same day, the trial court issued an ex parte protection order and scheduled the matter for a full hearing.
{3} On May 10, 2011, the matter proceeded to a full hearing during which the following evidence and testimony was adduced.
{4} Rory and Lorinda (collectively “the Retterers“) testified that they have resided at 3854 Maple Grove Road for eight years. Michael and Melody Little (“Melody“), Michael‘s wife, (collectively “the Littles“) testified that they have resided at 3878 Maple Grove Road for ten years. Both properties are located on
{5} Rory and Lorinda testified that since 2006 they have been the victims of routine verbal abuse from Michael. Rory and Lorinda described Michael‘s verbal abuse as being threatening, aggressive, profanity infused speech which is triggered whenever Michael hears or sees them on their property outside their residence. Lorinda testified that Michael‘s verbal abuse “is not just a minute or two * * * he stands out there for an extended length of [time] screaming at the top of his voice.” Hearing Tr., p. 6. Lorinda further explained that during episodes of Michael‘s verbal abuse his entire body shakes as though he is consumed with rage. Rory and Lorinda testified that they believe Michael‘s routine verbal abuse towards them is meant to provoke an altercation, intimidate, and instill fear.
{6} Rory testified that the first incident with Michael occurred in 2006 (hereinafter “the tree-trimming incident“). A dispute arose regarding trees that were planted on the Retterers’ property along the Littles’ northern property line. Michael complained that the tree branches were hanging over his property. Rory testified that Michael trimmed the branches which hung over his property and threw the branches into his (Rory‘s) yard. Rory testified that he attempted to discuss the matter with Michael in a “civil manner“, but Michael crossed onto his property and “got into [his] face” telling him to cut the trees down. Hearing Tr., p.
{7} Michael and Melody testified that in 2006 they trimmed portions of the Retterers’ trees which hung over their property. In order to determine which branches hung over their property, Michael laid PVC piping along his property line. Michael testified that he did not cross onto the Retterers’ property when he trimmed the trees, nor did he have a face-to-face confrontation with Rory. Melody acknowledged that the Retterers’ contacted the Marion County Sheriff about the incident, but no charges were filed.
{8} Lorinda testified that an incident occurred in the fall of 2007 (hereinafter “the truck incident“). Lorinda was returning home from a church function at night. As she approached her residence, Lorinda noticed an individual
{9} Lorinda testified that she and Rory had a surveillance system equipped with cameras installed on the exterior of their residence. One of the surveillance cameras was positioned over the garage pointing south towards the Littles’ property. Lorinda testified that immediately after the incident she and Rory reviewed the surveillance video. Petitioner‘s Exhibit B. The surveillance video shows a vehicle driving across the Littles’ property towards the Retterers’ garage with its headlights on as another vehicle, presumably Lorinda‘s vehicle, drives into the garage.1
{10} The following day, the Retterers reported the incident to the Marion County Sheriff. Joint Exhibit 1, pp. 1-6. Rory and Lorinda testified that they,
{11} Michael and Melody testified that they have continued problems with loud music emanating from the Retterers’ residence, as well as barking dogs and beeping car alarms. On the night of the truck incident, Melody recalled loud music emanating from the Retterers’ residence causing the walls of her residence to vibrate. In an effort to quell the music emanating from the Retterers’ residence, Michael testified that he drove his truck up to, but not over, the Retterers’ property line, parked it, and honked his horn. Michael testified that a sheriff‘s deputy visited him at work the following day to discuss the incident. Michael testified that the sheriff‘s deputy informed him that Lorinda thought he was going to hit her vehicle and that she was frightened by his actions. Michael testified that he had no intention of frightening Lorinda.
{12} Shortly after the incident involving the truck, Lorinda became severely ill and spent much of the following three years in the hospital. Rory testified that he spent much of that time with Lorinda. Consequently, neither Rory nor Lorinda spent much time at their residence. However, Rory and Lorinda
{13} On April 16, 2011, the Retterers’ hosted a wedding reception for Lorinda‘s brother, Jeremy Pelphrey (hereinafter “the wedding reception incident“). Pelphrey testified that he and another guest were standing outside the Retterers’ residence while guests were arriving for the reception. During this time, Pelphrey witnessed Michael yelling profanities and gesturing with clenched fists at guests who parked their vehicle along the road in front of his property. Pelphrey testified that the incident made him very uneasy. Though Rory and Lorinda testified that they did not witness Michael‘s behavior towards their guests, Lorinda testified that Michael‘s behavior created an air of concern among the guests.
{14} Michael and Melody testified that the Retterers’ did not ask them whether their guests could park their vehicles along the road in front of their property. Michael and Melody explained that several of the Retterers’ guests
{15} The last incident occurred on April 23, 2011 (hereinafter “the dog barking incident“). Rory testified that he was working in his garage, when his dogs started barking towards the trees abutting the Littles’ property. Rory walked out of his garage to determine why the dogs were barking and saw Michael standing in the tree line. Rory, without objection, testified that Michael looked at him and said, “You afraid? Are you - - you think that I‘m gonna come over and kill your puppies?” Hearing Tr., pp. 70-71. Rory continued that Michael followed this remark stating, “You would be next asshole.” Id. at 71. Rory testified that he interpreted Michael‘s remarks as a threat of physical harm. Three days after the incident, Rory filed a report with the Marion County Sheriff. Joint Exhibit 1, pp. 7-9. The report contained an allegation that Michael threatened to harm the Retterers’ dogs, but did not contain an allegation that Michael threatened Rory. Id.
{16} Michael testified that the incident involving the dogs occurred while he was mowing his lawn. Michael explained that each time he mowed near the
{17} As a result of the foregoing incidents and Michael‘s alleged verbal abuse, Rory and Lorinda testified that they have significantly altered how they enjoy their property. Rory testified that he planted trees along his property line abutting the Littles’ property in an effort to minimize contact with Michael. Rory and Lorinda testified that they moved all of their outdoor possessions located nearest to the Littles’ property to the opposite side of their yard. Similarly, Rory, Lorinda, and Pelphrey testified that family and friends are encouraged to avoid that portion of their yard nearest to the Littles’ property. Lorinda testified that in 2009 she and Rory attempted to sell their residence because of Michael‘s actions, but abandoned the endeavor due to the market value of their residence.
{18} Rory and Lorinda each testified that they fear Michael will cause them physical harm. Michael, however, testified that he has never intended to cause the Retterers to be in fear of physical harm or cause them mental distress. Rory and Lorinda explained that they have delayed seeking a protection order in the hopes that Michael‘s actions towards them would subside. As a result of the incidents that occurred in April 2011, Rory and Lorinda testified that they sought the protection order because they could no longer ignore Michael‘s actions.
{20} It is from this judgment Michael appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT THE STALKING PROTECTION ORDER FOR RORY RETTERER.
Assignment of Error No. II
Assignment of Error No. III
THE STALKING PROTECTION ORDER GRANTED FOR RORY RETTERER IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. IV
THE STALKING PROTECTION ORDER GRANTED FOR LORINDA RETTERER IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{21} Due to the nature of Michael‘s assignments of error, we elect to address all four assignments of error together.
Assignments of Error Nos. I, II, III & IV
{22} In his first, second, third, and fourth assignments of error, Michael contends that the record contains insufficient evidence to support the issuance of the CSPO for Rory and Lorinda, and that the issuance of the CSPO for Rory and Lorinda was against the manifest weight of the evidence. We disagree.
{23} When reviewing a trial court‘s decision to grant a civil protection order, we will not reverse the decision absent an abuse of discretion. Van Vorce v. Van Vorce, 3d Dist. No. 2-04-11, 2004-Ohio-5646, ¶ 15, citing Kramer v. Kramer, 3d Dist. No. 13-02-03, 2002-Ohio-4383, ¶ 11. An abuse of discretion requires
{24}
(C) 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 * * *;
{25} To be entitled to a CSPO, the petitioner must show by a preponderance of the evidence that the respondent engaged in a violation of
{26}
(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.
Accordingly, pursuant to
Pattern of Conduct
{27} Michael first contends that Rory failed to establish that he engaged in a pattern of conduct for the purposes of
{28}
[T]wo 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.
{29} Notably, the statute does not define “closely related in time.” “In failing to delimit the temporal period within which the two or more actions or incidents must occur, the statute leaves that matter to be determined by the trier of fact on a case-by-case basis.” Ellet v. Falk, 6th Dist. No. L-09-1313, 2010-Ohio-6219, ¶ 22, citing State v. Dario, 106 Ohio App.3d 232, 238, 665 N.E.2d 759 (1st Dist. 1995). In determining whether the actions or incidents described during the CSPO hearing constituted a pattern of conduct the trier of fact should consider the “evidence in the context of all the circumstances of the case.” Middletown v. Jones, 167 Ohio App.3d 679, 2006-Ohio-3465, ¶ 10 (12th Dist.), quoting State v. Honeycutt, 2d Dist. No. 19004, 2002-Ohio-3490, ¶ 26. Therefore, depending upon the particular circumstances, a pattern of conduct can arise out of two or more actions or incidents occurring on the same day, Shockey v. Shockey, 5th Dist. No. 08CAE070043, 2008-Ohio-6797, ¶ 19, citing State v. Scruggs, 136 Ohio App.3d 631, 634, 737 N.E.2d 574 (2d Dist. 2000), or it may consist of two or more intermittent actions or incidents occurring over a period of years. Ellet at ¶ 25; see
{30} Though we presume the trial court found that Michael engaged in a pattern of conduct against Rory and Lorinda, we note that the trial court, in granting the CSPO, did not enter findings of fact as to which actions or incidents constituted a pattern of conduct. Nevertheless, review of the record reveals that the trial court was presented with four specific incidents between Michael and the Retterers, to wit: the tree-trimming incident; the truck incident; the wedding reception incident; and, the dog barking incident. In addition to those four incidents, the trial court also heard testimony concerning Michael‘s routine verbal abuse towards Rory and Lorinda. Based on the four incidents and Michael‘s verbal abuse, Rory maintains that Michael engaged in a pattern of conduct prohibited by
{31} Of the four incidents testified to during the hearing, we find that the wedding reception incident does not support a finding that Michael engaged in a pattern of conduct that would cause Rory or Lorinda to believe that he was going to cause either of them physical harm or mental distress. Pelphrey, a guest at the wedding reception, testified that he witnessed Michael yelling profanities at guests who parked their vehicles along the portion of the road that abutted the Littles’ property. Rory and Lorinda each testified that they did not witness Michael‘s
{32} Aside from the wedding reception incident, the Retterers testified that in 2006, during a dispute over tree limbs hanging over the Littles’ property, Michael came onto the Retterers’ property and got “in [Rory‘s] face” and yelled at him while clinching his fists and making quick movements with his hands (Hearing Tr. Pp. 8, 61); that in 2007 Michael drove his truck towards Lorinda‘s vehicle as she drove up her driveway; that on April 23, 2011, Michael threatened to kill Rory; and, that Michael has verbally abused them on a routine basis since 2006. In response to each of the foregoing incidents, Michael provided either an innocent explanation for his conduct, a different version of events, or highlighted inconsistencies in the Retterers’ testimony in an attempt to discredit the same. As
{33} Viewing Michael‘s conduct towards the Retterers together, we are not persuaded by Michael‘s contention that the evidence offered at trial was insufficient to establish that he engaged in a pattern of conduct that would cause Rory and Lorinda to believe that he would cause them physical harm or mental distress. First, the record contains evidence of at least two or more “actions or incidents” which caused Rory and Lorinda to believe that Michael was going to cause them physical harm or mental distress. Secondly, though each of the specific incidents occurred over a period of five years, that fact alone does not prohibit a finding that the Michael engaged in a pattern of conduct for purposes of
Knowingly
{34} Next, Michael contends that he could not have known that his actions towards the Retterers caused them to believe that he would cause them physical harm or mental distress. Upon review of the record, we find that the record contains competent, credible evidence that sufficiently demonstrates that Michael
{35} Knowingly is defined as follows:
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.
R.C. 2901.22(B)
Consequently, a petitioner seeking a CSPO under
{36} During the hearing, the trial court heard testimony regarding Michael‘s routine verbal abuse of Rory and Lorinda, as well as three specific incidents, to wit: the tree-trimming incident; the truck incident; and, the dog barking incident. The trial court also heard testimony that the Retterers contacted law enforcement after each incident and that Michael was aware of the same. Though Michael maintains that the he could not have known that the foregoing conduct caused the Retterers to believe that he would cause them physical harm or mental distress, the trial court, based on the nature of the foregoing incidents and the Retterers’ response thereto, could reasonably conclude that Michael engaged in a pattern of conduct with knowledge that his conduct caused Rory and Lorinda to believe that he would cause them physical harm or mental distress.
Belief of Physical Harm or Mental Distress
{38} Last, Michael contends that he neither caused Rory nor Lorinda to believe that he was going to cause them physical harm or mental distress. Upon review of the record, we find that the record contains competent, credible evidence that sufficiently demonstrates that Michael‘s actions did cause Rory and Lorinda to believe that he would cause them physical harm or mental distress.
{39} By its very language,
{40}
(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.
{41} “[M]ental distress for purposes of menacing by stalking is not mere mental stress or annoyance.” Caban v. Ransome, 7th Dist. No. 08 MA 36, 2009-Ohio-1034, ¶ 29.
{42} Though we presume the trial court found that Michael‘s pattern of conduct caused Rory and Lorinda to believe that he would cause them physical harm or mental distress, we note that the trial court, in granting the CSPO, did not enter findings of fact as to whether Michael‘s pattern of conduct caused Rory and Lorinda to believe that he would cause them physical harm, mental distress, or both. Nevertheless, review of the record reveals that there was competent, credible evidence that sufficiently demonstrates that Michael‘s pattern of conduct caused Rory and Lorinda to believe that he would cause them physical harm or mental distress.
{43} During the hearing, the trial court heard testimony from Rory and Lorinda concerning their respective beliefs that Michael would cause them physical harm. Rory testified that he believed Michael was going to cause him physical harm as a result of his actions during the tree-trimming incident and the dog barking incident. Considering the nature of the tree-trimming incident and the dog barking incident, it is reasonable to conclude that Rory believed that Michael would cause him physical harm. As for Lorinda, she testified that she believed
{44} The trial court also heard testimony from Rory and Lorinda concerning their respective beliefs that Michael would cause them mental distress. Instead of believing that Michael was going to cause him mental distress, Rory testified that he has suffered mental distress as a result Michael‘s pattern of conduct. In 2009, Rory took two months off of work and sought counseling as a result of Michael‘s pattern of conduct, his father‘s recent death, and Lorinda‘s illness. Rory also testified that during this period of time he suffered from various maladies, including stress, migraines, and symptoms of IBS. Though Rory‘s maladies and decision to take time off of work and seek counseling may have, in part, resulted from his father‘s recent death and Lorinda‘s illness, as Michael contends, Rory also testified that his maladies and decision to take time off of work to seek counseling was, in part, due to Michael‘s pattern of conduct. There is no requirement that one‘s mental distress must solely be attributable to the
{45} Furthermore, the record contains evidence that Michael‘s conduct caused Rory and Lorinda to alter their lifestyle. Rory and Lorinda each testified that they only utilize the portion of their yard furthest away from the Littles’ property to avoid contact with Michael. Rory testified that he planted trees near the Littles’ property line in an effort to minimize contact with Michael. Lorinda testified that she and Rory attempted to sell their residence in 2009 as a result of Michael‘s conduct, but abandoned the endeavor due to the market value of their residence.
{46} Considering the foregoing testimony, we find that there is competent, credible evidence that sufficiently demonstrates that Michael‘s pattern of conduct caused Rory and Lorinda to believe that he would cause them physical harm or mental distress.
{48} Having found no error prejudicial to Appellant herein, in the particulars assigned and argued, we affirm the issuance of the CSPO, but remand the judgment of the trial court for further proceedings, but only to clarify the mandatory distance of separation between Appellant and Appellee and his wife in the protection order.
SHAW, P.J. and WILLAMOWSKI, J., concur.
Judgment Affirmed and Cause Remanded