Eckstein v. Colian

2012 Ohio 4038

• Court: Ohio Court of Appeals
• Decided: August 27, 2012
• Docket: 11 CO 22
• Status: Published

Opinion

[Cite as Eckstein v. Colian, 2012-Ohio-4038.] STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

KATHRYN ECKSTEIN ) CASE NO. 11 CO 22 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ANTHONY T. COLIAN ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 11 DR 168

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Jeffrey Lilly Community Legal Aid Services First National Tower 11 Central Square, Suite 700 Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Tracey Laslo 3258 East Main Street Alliance, Ohio 44601

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: August 27, 2012 [Cite as Eckstein v. Colian, 2012-Ohio-4038.] WAITE, P.J.

{¶1} Appellant Anthony T. Colian appeals the judgment of the Columbiana

County Court of Common Pleas adopting a magistrate's decision to grant a domestic

violence civil protection order (“DVCPO”). Appellant argues that the manifest weight

of the evidence does not support the decision to grant the DVCPO. The record

reflects that Appellant had been married to the victim, Kathryn Eckstein (“Kathryn”).

Appellant went to the victim's home to pick up their two minor children. Appellant and

Kathryn engaged in an argument and Appellant punched Kathryn in the head. The

evidence presented at trial supports a determination that Kathryn needed protection

against Appellant and that the DVCPO was justified. The judgment of the trial court

is affirmed.

Background

{¶2} Appellant and the victim were divorced in 2008. They had two children

together, now ages four and five. On March 27, 2011, Appellant went to Kathryn's

house to pick up the children on their usual exchange day. He was accompanied by

his fiancée Mandy Grimes, who waited in the car. Kathryn was on her front porch

and as Appellant approached he began yelling and swearing at her. He punched her

in the head while she was kissing one of the children goodbye. Kathryn then called

her mother and the police. She was taken by ambulance to the hospital, where she

was told she had a concussion.

{¶3} On March 29, 2011, Kathryn filed for a DVCPO. She filed on only her

own behalf. A hearing was held on April 7, 2011. Kathryn and her parents testified -2-

for the issuance of the order and Appellant’s fiancée, Mandy Grimes, testified for the

defense. Appellant also testified on his own behalf.

{¶4} Kathryn stated that when Appellant arrived she was in the house with

the children. She stepped out onto the porch to talk to Appellant about changing the

next exchange day. She saw Grimes in the car. While they were on the porch,

Appellant became angry and “flipped out all of a sudden.” (Tr., p. 7.) When she was

bending over to kiss one of her children, Appellant punched her in the head. She did

not see the punch coming. She started crying and things became fuzzy. Grimes

then got out of the vehicle and told Appellant to get in the car. (Tr., p. 8.) Kathryn

called her parents, who said they would come right away. She then called the police.

Kathryn’s parents and the police arrived at the same time. Appellant's mother,

Barbara Eckstein (“Barbara”), put an ice-pack on Kathryn's head. The police

questioned her and called for an ambulance. She was taken to Salem Hospital,

where they took a CAT scan. Kathryn testified that she had a concussion and that

she is still being treated for headaches and neck pain from the attack. She said that

she was afraid of Appellant, that he has a bad temper, and that he had attacked her

in the past. (Tr., pp. 11-12.)

{¶5} Barbara and Michael Eckstein (“Michael”), Kathryn's parents, also

testified. Barbara stated that Kathryn lives with them, but Barbara acknowledged that

she was not at home when the attack happened. Kathryn called Barbara and was

sobbing and hysterical. (Tr., p. 37.) She said that Appellant had punched her.

Barbara said that she would come home immediately. The police arrived shortly after -3-

Barbara got there. Barbara saw Kathryn sitting on the front stairs sobbing and

holding her head. She put a cold compress on Kathryn's head. An ambulance

arrived and took Kathryn to the hospital. Barbara testified that she had never seen

Kathryn so upset or scared before, and that Kathryn is still suffering head and neck

pain from the attack. She also testified that she had experienced Appellant's temper

in the past and that she is afraid of him. (Tr., pp. 41-43.)

{¶6} Michael testified that his daughter Kathryn lives with him. He and his

wife Barbara were only a mile and a half away when Kathryn called them. He said

that Barbara received the call and that she was “[p]anic stricken” after the call. (Tr.,

p. 29.) He testified that he arrived at his home on March 27, 2011, to find his

daughter sitting on the steps holding her head, scared and sobbing, saying “Tony

punched me in my head.” (Tr., p. 29.) Paramedics soon arrived. They brought a

gurney in and took Kathryn away. He and Barbara went to the hospital while Kathryn

was being treated. He testified that he has known Appellant for eight or nine years.

He carries pepper spray in his car because he is concerned that Appellant poses a

threat to his wife and daughter's safety. (Tr., p. 33.) He related an incident that

occurred shortly after Kathryn and Appellant were divorced. Kathryn had phoned

Appellant to tell him that the children were sick and she would not allow them to leave

to go to church with him that day. Appellant arrived at the house anyway, and started

beating on the front door. Michael intended going to go out to talk to him, but

Barbara said, “[d]on't go out; he's a mad man.” (Tr., p. 36.) They called the police,

who got Appellant to leave. -4-

{¶7} Grimes testified that she was present when Appellant went to pick up

his children on March 27, 2011. She and Appellant had been engaged to be married

for two years. She saw Appellant go up to the porch and knock on the door. She

saw Kathryn and the children come out. She saw Appellant and Kathryn talking, and

although she could not hear exactly what they were talking about, she stated that

“[a]t one point in time I noticed things were getting heated.” (Tr., p. 50.) She could

hear the argument getting louder over a period of about 13 minutes. (Tr., pp. 54-55.)

She eventually got out of the vehicle and told Appellant that it was time to go. (Tr., p.

50.) She testified that she did not see Appellant touch Kathryn at all during the

argument. (Tr., p. 51.) She also testified that even though she was watching the

entire argument, she could have missed something “in a blink of an eye.” (Tr., p. 56.)

{¶8} Appellant testified that he arrived at 6:00 p.m. to pick up the children.

Kathryn asked if she could have the children on Easter Sunday, and he refused.

They began to “bicker back and forth.” (Tr., p. 62.) He stated that Kathryn swore at

him and yelled at him. He stated that he was not angry at any point and that the

bickering did not become loud. He testified that Grimes told him it was time to go, so

he took the children and left for home. Appellant lives only two doors away from

Kathryn, and he soon saw the police and ambulance arrive. He stated: “I had no

clue what was going on. She went out on a stretcher. You know, for all I know she

rammed her head in the wall.” (Tr., p. 63.)

{¶9} Appellant also testified that soon after the divorce there was a day

when Kathryn told him the children could not go to church. He admitted that he went -5-

to Kathryn's house and banged on the door of the house so hard that the vibrations

set off the anti-theft alarm on his truck. (Tr., p. 70.)

{¶10} The magistrate issued the DVCPO on April 15, 2011. The magistrate

found that Appellant was less than credible, particularly when he claimed he never

got angry. The magistrate noted that Appellant exhibited his anger during cross-

examination. The magistrate also considered the contradictory testimony between

Appellant and his own witness Mandy Grimes regarding whether a heated argument

had taken place. The DVCPO was issued for a period of five years, terminating on

March 29, 2016.

{¶11} On April 25, 2011, Appellant filed a motion to set aside the DVCPO,

claiming that it was issued against the manifest weight of the evidence. The court

treated this motion as an objection to the magistrate's order. The court ruled on the

objection on June 27, 2011. The court determined that competent credible evidence

supported the magistrate's findings. This appeal followed.

ASSIGNMENT OF ERROR

THE TRIAL COURT’S AFFIRMATION OF THE MAGISTRATE’S

DECISION TO GRANT A FINAL DOMESTIC VIOLENCE CIVIL

PROTECTION ORDER WAS AN ABUSE OF DISCRETION, AS IT

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶12} Appellant believes the trial court's decision to issue the DVCPO was

against the manifest weight of the evidence. The issuance of a DVCPO will be

upheld against a challenge to the manifest weight of the evidence if the trial court’s -6-

decision was supported by sufficient, competent, credible evidence. Rosine v.

Rosine, 7th Dist. No. 09-MA-18, 2010-Ohio-613, ¶11, citing C.E. Morris v. Foley

Construction Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). When reviewing the

evidence, the appellate court must indulge every reasonable presumption in favor of

the trial court's judgment and findings of fact. Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 79, 461 N.E.2d 1273 (1984). The rationale for this presumption is that

the trial court is in the best position to view witnesses and observe their demeanor,

voice inflection, and gestures, and to weigh the credibility of each witness. Id.

{¶13} R.C. 3113.31 provides for a petitioner's right to request a DVCPO on

behalf of herself or anyone living in the residence with her in order to obtain

protection from domestic violence. Domestic violence is defined in R.C.

3113.31(A)(1), in part, as follows:

(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;

(b) Placing another person by the threat of force in fear of imminent

serious physical harm or committing a violation of section 2903.211 or

2911.211 of the Revised Code;

{¶14} The Ohio Supreme Court has held that “[w]hen granting a protection

order, the trial court must find that petitioner has shown by a preponderance of the

evidence that petitioner or petitioner's family or household members are in danger of -7-

domestic violence.” Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997),

paragraph two of the syllabus. “Preponderance of the evidence” means the greater

weight of the evidence, or evidence that leads the trier of fact to find that the

existence of the contested fact is more probable than its nonexistence. State v.

Stumpf, 32 Ohio St.3d 95, 102, 512 N.E.2d 598 (1987).

{¶15} Five witnesses testified at the final hearing in this case. Kathryn

testified about the encounter with Appellant, the heated argument that ensued, and

that she had been punched in the head by him resulting in her calls to the police and

her parents. There is no dispute that paramedics arrived and took her to the hospital.

Kathryn's parents did not see the attack, but their testimony confirms that she was

crying and very upset after the incident, that she was holding her head when they

arrived, and that she told them Appellant had punched her. Two witnesses testified

that Kathryn is still suffering the side effects of a concussion from the incident.

Appellant's own witness, Mandy Grimes, confirmed that a heated argument had

taken place, although she did not personally witness the punch to the head. Michael

Eckstein testified that there was a prior incident where Appellant was beating on the

front door and acted like a “mad man.” Michael Eckstein also testified that he carries

pepper spray with him because he is afraid of what Appellant might do. Appellant

denied that he became angry at Kathryn or that a heated argument had taken place,

but the court did not find him to be credible and discounted his testimony. The court

particularly noted that Appellant displayed his violent temper during his testimony. -8-

There is abundant evidence in the record to support the issuance of a DVCPO in this

case.

{¶16} Appellant takes issue with the fact that only Kathryn specifically testified

about being punched and that none of the other witnesses saw it happen. This

observation disregards the extensive circumstantial evidence that supports Kathryn's

testimony, and circumstantial evidence has the same probative value as direct

evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).

Furthermore, “[t]he mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for resolving

disputed facts. The degree of proof required is determined by the impression which

the testimony of the witnesses makes upon the trier of facts, and the character of the

testimony itself.” Cross v. Ledford, 161 Ohio St. 469, 477-478, 120 N.E.2d 118

(1954).

{¶17} Because there is competent credible evidence to support the trial

court’s judgment granting a DVCPO, the judgment is affirmed.

Vukovich, J., concurs.

DeGenaro, J., concurs.