[Cite as Gherman v. Culberson, 2025-Ohio-4513.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLINTON COUNTY
ERIC GHERMAN, et al., :
Appellants, : CASE NOS. CA2025-01-001 CA2025-01-002 : CA2025-01-003 - vs - CA2025-01-004 : OPINION AND MEGAN CULBERSON, et al., : JUDGMENT ENTRY 9/29/2025 Appellees. :
CIVIL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case Nos. DRH 20240128, DRH 20240142, DR 20240129, DRH 20240131
Thomas G. Eagle Co., L.P.A., and Thomas G. Eagle, for appellants.
Brian E. Lusardi, for appellees.
OPINION
HENDRICKSON, P.J.
{¶ 1} Appellants, Eric Gherman and Meghan Carpenter (collectively,
"Appellants"), appeal the trial court's adoption of a magistrate's decision granting civil Clinton CA2025-01-001 CA2025-01-002 CA2025-01-003 CA2025-01-004
stalking protection orders ("CSPOs") in favor of appellees, Megan Culberson and Terri
Culberson (collectively, "Appellees"), and denying Gherman's petition for a CSPO against
Terri.
Factual Background
{¶ 2} Appellants and Appellees are neighbors who live near one another on North
South Street in Wilmington, Ohio. The parties' homes are approximately 60 to 90 feet
apart and are set on the same side of the street with a house in between. Megan and her
husband live at 879 North South Street with their three children, who were six, seven, and
eight years old at the time of the hearing. Megan's mother-in-law, Terri, and father-in-law
also live in the home. Gherman and Carpenter live at 901 North South Street with
Gherman's young daughter.
{¶ 3} Appellants and Appellees have a contentious history, with negative
encounters dating back to 2018. On April 17, 2024 Megan filed petitions for CSPOs
against Appellants. In her petitions, Megan described several occasions between April
and May 2024 where Appellants made threatening statements to, and engaged in
aggressive behavior towards, Megan and her children. That same day, April 17, 2024,
Terri filed a petition for a CSPO against Carpenter. To support her petition, Terri stated
that Carpenter made threatening comments to "take us all out," and that Carpenter had
taken photographs of Terri and threatened her on other occasions.
{¶ 4} On April 23, 2024 Gherman filed a petition for a protection order against
Terri. To support his petition, Gherman described an encounter between he and Terri on
April 16, 2024 where Terri made threatening and harassing statements toward him and
Carpenter. Gherman also stated Terri took inappropriate photographs of Carpenter and
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her daughter and caused Gherman to have a heart attack on April 17, 2024. Gherman
stated he is in fear for his life and is seeking "mental help" to deal with what Terri caused
on April 17, 2024. Gherman also attached a copy of a protection order petition he filed
against Terri in November 2023, which cites to incidents between Gherman and Terri from
October 2023.1
{¶ 5} The matter proceeded to a full hearing on July 17, 2024. In preparation for
the hearing, the trial court issued a scheduling order which set forth deadlines for the
disclosure of witnesses and the exchange of exhibits. By the time of the full hearing before
the magistrate, neither party had exchanged or produced any exhibits nor had they
disclosed any witnesses. As a result, the magistrate limited the evidence to the testimony
provided by Appellants and Appellees.
{¶ 6} At the hearing, the magistrate heard testimony concerning the four CSPO
petitions before the court. As part of her testimony, Megan detailed several encounters
with Appellants that led her to request CSPOs against them. The first incident occurred
on March 25, 2024, when Megan and her children were in the yard of their home. After a
few hours, Gherman began yelling and cursing at the children from his back porch and
threw rocks toward the children. Gherman continued cursing at the children until Megan
took them inside for their safety. Megan testified this encounter was "nothing new" or "out
of the ordinary," as Appellants frequently curse at her children; threaten to have them
arrested; and call them names.
{¶ 7} Megan next described an incident from April 12, 2024, where her children
1. Gherman also filed a petition for a civil stalking protection order against Joseph Culberson, however, that petition was dismissed by the magistrate at the beginning of the final hearing. -3- Clinton CA2025-01-001 CA2025-01-002 CA2025-01-003 CA2025-01-004
were riding their bicycles on the sidewalk in front of Gherman's home. At some point,
Appellants noticed the children, which led to Gherman calling the youngest child a "cuss
word" before threatening to have her arrested for touching his property and trespassing.
Carpenter also threatened that she "was going to take [the child] out" if the child did not
"stay away," which Megan understood as a threat to cause physical harm to the child.
{¶ 8} The next incident occurred on April 16, 2024, when the children were
playing in their backyard with Megan. Appellants began yelling "[v]ery graphic nasty
words" at the children, "things that you should never say to minor children at all[,]"
including calling the children "[a] fucking bitch, trash, nasty, stupid whores, [and] stupid
bitches." Megan also heard Carpenter threaten to cause physical harm to her children
during the incident.
{¶ 9} In addition to the above, Megan stated there were other occasions where
Appellants recorded her children and yelled at them, as well as one incident where
Carpenter nearly struck one of the children with her vehicle. According to Megan,
Appellants constantly record Megan and her family members with their cell phones.
Megan testified she informed law enforcement of Appellants' actions, but nothing could
be done. Megan stated that Gherman is "not in the right mind," and Carpenter is "crazy,
psychotic, aggressive, and suicidal." To avoid interactions with Appellants, Megan has
altered her family routine to make her children feel safe, including obtaining additional
childcare and limiting their time outside. Due to Appellants' behavior, Megan is afraid for
her safety, as well as the safety of her children.
{¶ 10} As part of his testimony, Gherman denied engaging in the behavior
described by Megan. Gherman testified that he was not home on April 12 or April 16,
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2024, at the time of the alleged encounters, and that he was too ill to engage in the March
25, 2024, behavior described by Megan. According to Gherman, he could not throw
pavers from his yard to Megan's due to his health condition.
{¶ 11} Regarding his petition against Terri, Gherman testified that on April 11, 2024
Terri intentionally hit Carpenter in the face with rocks while mowing his neighbor's lawn.
Then, on April 16, 2024, Terri took "sexually devious" photographs of Carpenter getting
out of her vehicle. That same day, Terri threatened to "do stuff" to Gherman, told him that
"his day's coming" and that "he's going to get what's coming to him," "I'm going to make
sure it happens."
{¶ 12} Gherman next testified regarding an incident that occurred on April 17,
2024. That day, Gherman went to the Alternatives to Violence office to obtain protection
orders against Appellees. Upon arriving, Gherman noticed Terri was blocking his entrance
to the building, which Gherman believed was to prevent his filing for a protection order.
Shortly thereafter, Gherman went into cardiac arrest and was transported to the hospital.
Gherman described Terri's actions that day as "attempted murder," and attributed his
cardiac arrest to Terri's behavior.
{¶ 13} Regarding the incident at the Alternatives to Violence office, Terri stated she
was at the office that day with her husband and Megan to file for protection orders against
Carpenter. Terri denied making any verbal or physical threats to harm Gherman and
explained it was a coincidence that they were at the office at the same time.
{¶ 14} In addition to the above, Gherman further testified that Terri engages in
numerous troublesome behaviors, including listening to his conversations, driving by his
house constantly, watching Appellants in their backyard, threatening to shoot Gherman,
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hiring a private investigator to follow him, and attempting to murder him by stressing him
out to the point of cardiac arrest. Gherman did not provide dates for many of the above
incidents but acknowledged that some of them were included in his November 2023
CSPO petition against Terri, which was denied. Terri denied she engaged in any of the
above behaviors, and testified her family actively works to protect themselves from
Appellants false allegations against her family.
{¶ 15} Like Gherman, Carpenter also denied being home on many of the dates at
issue and disputed that she instigated any of the encounters described by Terri or Megan.
On cross-examination, Carpenter acknowledged that she was home on March 25 and
April 16 and stated she misspoke previously due to confusion from her health conditions.
{¶ 16} Throughout Appellants' testimonies, there were repeated references to their
significant health problems, including their frequent black outs, Gherman's heart
condition, and Carpenter's PTSD. According to Carpenter, Gherman passes out at least
once or twice a day after seeing Terri either in person or driving by his home. Carpenter
attributes Gherman's black outs to the stress Terri causes Gherman. Carpenter testified
that she also has recurrent blackouts, during which she becomes disoriented and cannot
recall what she did or said.
{¶ 17} Regarding her CSPO petition against Carpenter, Terri testified that on April
16, 2024, Terri was in her front yard with Megan and the children when Carpenter
"threatened to take all of us out." Carpenter then began yelling and screaming at Terri and
her family unprovoked. Terri stated that Carpenter has made threatening statements to
her and her family members and described Carpenter as violent and belligerent. Terri
believes Carpenter is capable of harming her or a family member, and recently, Carpenter
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attempted to hit the children with her car. Terri testified that Carpenter took photographs
of Terri while she mowed her neighbor's lawn, stalks Terri in her yard, and throws pavers
and rocks at the children. Terri also indicated that, not only do Appellants harass her, but
they often involve the police department. Terri indicated her interactions with Carpenter
cause her stress, which triggers her neuromuscular disorder and shuts down her body.
As a result, Terri has begun counseling. In light of Carpenter's behavior, Terri does not
feel safe.
{¶ 18} After considering the evidence presented at the hearing, the magistrate
issued decisions denying Gherman's petition for a CSPO against Terri; granting Megan's
petitions for CSPOs against Appellants; and granting Terri's petition for a CSPO against
Carpenter. On August 6, 2024, the trial court adopted the decision of the magistrate.
{¶ 19} Thereafter, Appellants obtained counsel and filed objections to the
magistrate's decision. In their objections Appellants argued the magistrate improperly
excluded Appellants' evidence at the final hearing; improperly granted the CSPOs in favor
of Appellees; and improperly imposed terms that are "unjustified and an extreme
hardship" on Appellants. Due to these issues, Appellants asked the trial court to reverse
the issuance of the CSPOs or, in the alternative, to modify their terms.
{¶ 20} On August 28, 2024, the trial court issued an entry modifying the terms of
the CSPOs. In so doing, the trial court added language indicating that nothing in the
CSPOs precluded Gherman from being at his daughter's school or attending her school
activities. Nor did the terms of the CSPOs prohibit Appellants from residing in their
residence.
{¶ 21} The trial court held a hearing regarding Appellants' objections and issued a
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decision and entry for each of the petitions. Regarding the protection orders awarded
against Carpenter, the trial court overruled Carpenter's objections in their entirety.
Regarding Gherman, the trial court incorporated the language from its August 28, 2024
entry into the CSPOs granted to Appellees, and reiterated that the CSPOs do not impact
Gherman's presence at his daughter's school or events, or to live in his home. In all other
respects, the trial court overruled Appellants' objections and issued the CSPOs as
modified.
The Appeal
{¶ 22} Appellants now appeal, raising four assignments of error for this court's
review.
{¶ 23} Assignment of Error No. 1:
{¶ 24} THE TRIAL COURT ERRED IN IMPOSING THE SANCTION OF
EXCLUSION OF EVIDENCE AT TRIAL FOR A PRETRIAL DISCOVERY AND
DISCLOSURE OMISSION.
{¶ 25} Appellants contend the trial court abused its discretion when it excluded
certain evidence they attempted to introduce at the hearing. Specifically, Appellants claim
that, by limiting their evidence to the parties' testimonies, they could not fully present their
defense and were highly prejudiced.
{¶ 26} Civ.R. 37 authorizes the court to make "just" orders in response to violations
of the discovery rules or court orders. Mundy v. Centrome, Inc., 2023-Ohio-1321, ¶ 32
(12th Dist.). A court may sanction a party for failing to comply with a discovery order by
excluding evidence. State ex rel. DeWine v. ARCO Recycling, Inc., 2022-Ohio-1758, ¶ 54
(8th Dist.). A court's determination to impose a discovery sanction will not be reversed on
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appeal unless the trial court abused its discretion. Vaughn v. Vaughn, 2022-Ohio-1805, ¶
32 (12th Dist.). An abuse of discretion implies that the court's attitude is unreasonable,
arbitrary, or unconscionable. Lykins v. Hale, 2023-Ohio-752, ¶ 18 (12th Dist.).
{¶ 27} In this case, the trial court issued a scheduling order on May 3, 2024. That
order set a series of discovery deadlines, including deadlines for the proper disclosure of
witnesses, the proper exchange of exhibits, and the proper disclosure of electronic
evidence. According to the scheduling order, all evidence intended to be presented at the
final hearing was to be disclosed or exchanged to the opposing party or counsel at least
seven days prior to the final hearing. The scheduling order states, in multiple places, that
evidence not properly disclosed or exchanged would not be admissible at the final
hearing. This includes a statement near the end of the scheduling order, in bold and all
capital letters, that
[f]ailure to abide by the provisions of this scheduling order may result in the denial of admission of exhibits and/or presentation of evidence and witness testimony.
{¶ 28} Despite receiving copies of the scheduling order, neither party exchanged
any evidence; identified any witnesses; or produced any electronic evidence prior to the
full hearing. At the outset of the hearing, the magistrate noted that any discovery that had
not been exchanged between the parties, including any documents or electronic
evidence, would not be admissible. Notwithstanding this statement, Appellants attempted
to produce evidence throughout the hearing that had not been previously identified or
shared with Appellees, their counsel, or the court. This evidence included additional
witnesses and video recordings from two flash drives and Carpenter's cell phone. After
objection from Appellees, the magistrate did not allow Gherman to present testimony from
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the undisclosed witnesses. The magistrate also did not view Appellants' electronic
evidence, however, this was due, in part, to Appellants' inability to use the court's
technology and Carpenter's decision not to place her cell phone into evidence. According
to Gherman, the video recordings would have shown Terri mowing her neighbor's lawn
and blowing the grass, dust, and rocks toward his vehicle and Carpenter, as well as Terri
following Gherman out of their neighborhood.2
{¶ 29} On appeal, Appellants argue that, despite their noncompliance with the
court's scheduling order, the trial court should not have excluded their additional evidence.
According to Appellants, the exclusion of evidence is the harshest penalty available, and
the trial court could have allowed the presentation of the evidence or imposed an alternate
remedy without any prejudice to the opposing parties. As such, Appellants claim the trial
court's decision to exclude the evidence, without first considering any alternate, less
severe, remedies was an abuse of discretion.
{¶ 30} After a thorough review of the record, we find no merit to Appellants' claims.
As this court has recognized, "[t]rial courts have broad discretion in managing their
dockets, setting case schedules and imposing discovery sanctions for violations of court
rules and scheduling orders." Auto Recyclers of Middletown, Inc. v. Stein, L.L.C., 2025-
Ohio-414, ¶ 15 (12th Dist.). Pursuant to Civ.R. 37(B)(2)(b), a court may preclude a party
from introducing designated matters in evidence if that party "fails to obey an order to
provide or permit discovery[.]" Bailey v. Bailey, 2004-Ohio-6930, ¶ 31 (12th Dist.). This is
true even "when the failure to comply with the discovery rules results merely from neglect,
2. The magistrate noted that the video of Terri following Gherman was not relevant to the instant petition and instead concerned an incident the court had previously addressed. - 10 - Clinton CA2025-01-001 CA2025-01-002 CA2025-01-003 CA2025-01-004
a change in trial strategy, or inadvertent error." Homme v. Homme, 2010-Ohio-6080, ¶ 50
(12th Dist.).
{¶ 31} While excluding evidence can be a harsh discovery sanction, under the
facts of this case, we cannot say the trial court abused its discretion in excluding the
undisclosed evidence of Appellants. Pursuant to the scheduling order, which Appellants
acknowledge they received, they were aware of their responsibility to exchange and
disclose the evidence they intended to produce at the final hearing. Appellants attribute
their error to the fact that they did not have counsel's contact information and therefore,
could not exchange the information. Notwithstanding Appellants' assertion, multiple filings
within the trial court identify Appellees' counsel and provide his contact information. Even
if such information was not readily available to Appellants, the scheduling order states the
evidence could be exchanged with, and disclosed to, Appellees directly. Given the
proximity of Appellees' and Appellants' homes, as well as the frequent encounters
between the parties, it is evident Appellants could have provided their evidence to
Appellees at some point before the hearing. This is especially true given Gherman's
indication on the record that his flash drive of electronic evidence was prepared in
advance of the hearing.
{¶ 32} We are likewise unpersuaded that the trial court should have excused
Appellants' noncompliance with the scheduling order because Appellees' counsel did not
provide any evidence to Appellants. Because Appellees' counsel intended to present only
testimony from Appellees to support his case, he was under no obligation to disclose or
exchange additional evidence with Appellants. Appellants, on the other hand, sought to
present additional witnesses, as well as electronic evidence, to support their claims. As
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such, and in accordance with the court order, they were required to share such evidence
with Appellees beforehand. We note that, upon learning their undisclosed evidence would
not be considered, Appellants did not request a continuance of the hearing and elected
to proceed knowing their evidence would be limited. Although Appellants represented
themselves pro se at the final hearing, the Supreme Court of Ohio has repeatedly found
that pro se litigants are presumed to have knowledge of the law and must follow the same
procedures as litigants represented by counsel. State ex rel. Gessner v. Vore, 2009-Ohio-
4150, ¶ 5; State ex rel. Fuller v. Mengel, 2003-Ohio-6448, ¶ 10. Thus, Appellants' failure
to adhere to the deadlines set forth in the court's scheduling order cannot be excused for
lack of counsel or knowledge of the law.
{¶ 33} The purpose of the discovery rules is to prevent surprise and the secreting
of evidence favorable to one party. Noble v. Atomic Auto Sales, Inc., 2008-Ohio-233, ¶ 20
(8th Dist.). The exclusion of reliable and probative evidence is an extreme sanction but is
appropriate when "necessary to enforce willful noncompliance or to prevent unfair
surprise." Nead v. Brown Cty. Gen. Hosp., 2007-Ohio-2443, ¶ 17 (12th Dist.). In this case,
the parties were warned by the magistrate that failure to exchange exhibits or disclose
witnesses could result in exclusion of that evidence from the hearing. It is clear that the
magistrate, and the trial court by adopting the magistrate's decision, found the
undisclosed electronic evidence and additional witness testimony inadmissible given
Appellants' failure to comply with the court order. The court was within its discretion to
regulate its proceedings in this manner. See Hosler v. Hosler, 2016-Ohio-5777, ¶ 74-75
{¶ 34} Appellants' first assignment of error is overruled.
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{¶ 35} Assignment of Error No. 2:
{¶ 36} THE TRIAL COURT ERRED IN GRANTING THE APPELLEES'
PROTECTION ORDER.
{¶ 37} Assignment of Error No. 3:
{¶ 38} THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S
{¶ 39} In their second and third assignments of error, Appellants argue the trial
court erred in granting CSPOs against them and denying Gherman's CSPO petition
against Terri. In so doing, Appellants contend the excluded evidence discussed above
would have refuted Appellees' claims and supported Gherman's claims against them.
Appellants also argue there was insufficient credible evidence to support the granting of
the CSPOs against them.
Rule of Law and Standard of Review
{¶ 40} "R.C. 2903.214 governs both civil stalking and sexually oriented offense
protection orders." Tucker v. Uhl, 2023-Ohio-3680, ¶ 15 (12th Dist.). "The trial court must
find that the elements of R.C. 2903.214(C)(1) were proven by a preponderance of the
evidence in order to grant the petitioner a civil stalking protection order." Mather v.
Hilfinger, 2021-Ohio-2812, ¶ 16 (12th Dist.). "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. McGrady v.
Muench, 2019-Ohio-2677, ¶ 12 (12th Dist.). Therefore, "[w]hen assessing whether a civil
stalking protection order should have been issued, the reviewing court must determine
whether there was sufficient credible evidence to prove by a preponderance of the
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evidence that the petitioner was entitled to relief." Fouch v. Pennington, 2012-Ohio-3536,
¶ 9 (12th Dist.). This standard is, in essence, a review as to whether the issuance of the
civil stalking protection order was against the manifest weight of the evidence. McBride v.
McBride, 2012-Ohio-2146, ¶ 10 (12th Dist.).
{¶ 41} "The standard of review for a manifest weight challenge in a civil case is the
same as that applied to a criminal case." Dunn v. Clark, 2016-Ohio-641, ¶ 8 (12th Dist.),
citing Eastley v. Volkman, 2012-Ohio-2179, ¶ 17. A challenge to the manifest weight of
the evidence requires this court to examine whether there exists a greater amount of
credible evidence to support one side of the issue rather than the other. Martinez v.
Martinez, 2023-Ohio-4783, ¶ 15 (12th Dist.). Therefore, when considering 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 a manifest miscarriage of
justice warranting reversal and a new trial ordered." Hacker v. House, 2015-Ohio-4741, ¶
21 (12th Dist.) citing Eastley at ¶ 20.
{¶ 42} However, while this court must weigh the evidence and consider the
credibility of the witnesses, it is well established that a determination regarding the
witnesses' credibility is primarily for the trier of fact to decide. See State v. Lewis, 2020-
Ohio-3762, ¶ 19 (12th Dist.). To that end, because it is primarily the trier of fact who
decides the witnesses' credibility, "[a] judgment will not be reversed as being against the
manifest weight of the evidence where the judgment is supported by some competent,
credible evidence going to all essential elements of the case." Halcomb v. Greenwood,
2019-Ohio-194, ¶ 36 (12th Dist.). Accordingly, "reversing a judgment on manifest weight
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grounds should only be done in exceptional circumstances, when the evidence weighs
heavily against the judgment." Jones v. Wall, 2016-Ohio-2780, ¶ 14 (12th Dist.).
{¶ 43} Pursuant to R.C. 2903.214(C)(1), the issuance of a civil stalking protection
order "requires the petitioner to establish that the respondent engaged in conduct
constituting menacing by stalking." Harnar v. Becker, 2021-Ohio-784, ¶ 6 (12th Dist.).
R.C. 2903.211(A)(1) defines "menacing by stalking" to mean engaging in a "pattern of
conduct" that "knowingly" causes "another person to believe that the offender will cause
physical harm to the other person" or "mental distress to the other person." More
specifically, R.C. 2903.211(A)(1) states:
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 a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person.
{¶ 44} "A person acts knowingly, regardless of purpose, when the person is aware
that [his or her] conduct will probably cause a certain result or will probably be of a certain
nature." R.C. 2901.22(B). "A person has knowledge of circumstances when he [or she] is
aware that such circumstances probably exist." Id. "To establish a pattern of conduct,
there only needs to be two or more actions closely related in time." Fouch, 2012-Ohio-
3536 at ¶ 9, citing R.C. 2903.211(D)(1). In determining what constitutes a "pattern of
conduct," the trial court must take every action of the respondent into consideration even
if some of the actions, in isolation, may not seem that particularly threatening. Middletown
v. Jones, 2006-Ohio-3465, ¶ 10 (12th Dist.).
{¶ 45} R.C. 2903.211(D)(2) defines "mental distress" to mean either: (1) any
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mental illness or condition that involves some temporary substantial incapacity; or (2) any
mental illness or condition that would normally require psychiatric treatment,
psychological treatment, or other mental health services, regardless of whether any
person requested or received psychiatric treatment, psychological treatment, or other
mental health services. Wilson v. Wilson, 2023-Ohio-4243, ¶ 24 (12th Dist.). Although
constituting something more than mere mental stress or annoyance, "[m]ental distress
need not be incapacitating or debilitating." Konk v. Getts, 2024-Ohio-1516, ¶ 15 (12th
Dist.), citing Coleman v. Razete, 2019-Ohio-2106, ¶ 15 (10th Dist.).
Appellees' CSPOs Against Appellants
{¶ 46} We begin our analysis by discussing the trial court's decision to grant
Appellees CSPOs against Appellants. On appeal, Appellants initially argue the protection
orders are based upon "minor, trivial, or insufficient allegations of misconduct" that do not
rise to the level required by the statutes. Appellants contend the incidents were "relatively
juvenile and trivial and did not merit the weight and consequences of protection orders."
In support, Appellants state that Appellees' evidence was not reliable or credible and
should not have been admitted or relied upon.
{¶ 47} After reviewing the record, we find that the evidence presented at the
hearing was sufficient to establish that Appellants knowingly engaged in a pattern of
conduct that would cause Appellees to believe that Appellants will cause physical harm
or mental distress to Appellees. At the hearing on Appellees' petitions, the magistrate
heard testimony that, in the month prior to the filing of their petitions, Appellants
repeatedly threatened and harassed Megan, her children, and Terri. This includes
testimony that Appellants regularly yelled profanities and other threats at Appellees and
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Megan's children; threw broken pavers and rocks at the children; threatened physical
harm to Appellees and the children; nearly caused physical harm to one of the children
with a motor vehicle; frequently called the police on Appellees; and used their cell phones
to record Appellees and the children's daily activities. Megan and Terri testified that, based
upon Appellants' actions, they are scared for their safety, as well as the safety of the
children. Appellees also testified they have altered their routine to avoid contact with
Appellants and have installed cameras on their home to refute Appellants' false
allegations against them. They have also taken steps to ensure the children feel safe in
and around their home.
{¶ 48} Although Appellants portray the above incidents as trivial, juvenile, and
insignificant, we, like the trial court, find them to be sufficient evidence to support the
CSPOs. That is, although name calling and taking photographs may be conduct
insufficient to constitute menacing by stalking, the aggressive language and violent
behaviors described by Appellees are threats of harm that warrant the issuance of a
CSPO in this case.
{¶ 49} While we acknowledge Appellants' testimony explaining or denying their
conduct, it was up to the trial court to determine the weight and credibility to afford
Appellees' version of the events versus Appellants' version. Bartells v. Bertel, 2018-Ohio-
21, ¶ 63 (12th Dist.). "A trier of fact is free to believe all, part, or none of the testimony of
each witness." Lazour v. Souders, 2024-Ohio-774, ¶ 56 (12th Dist.). It is not unusual for
a trial court to hear conflicting testimony from different parties. Id. In this case, the trial
court specifically found the Appellees credible in their testimony. Appellate courts typically
defer to trial courts on issues of weight and credibility because, as the trier of fact, the trial
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court is better able to view the witnesses and observe their demeanor, gestures, and voice
inflections, and then use those observations in weighing credibility." Bartells at ¶ 63.
{¶ 50} Furthermore, to the extent Appellants argue the excluded evidence
discussed above would have refuted Appellees' claims, we reject those arguments for the
same reasons discussed in their first assignment of error. Additionally, we note that
Appellants do not point to any specific evidence that, if admitted, would have refuted
Appellees' allegations against Appellants or "would have sustained [their] defense" as
argued on appeal. Although Appellants were unable to present certain undisclosed
evidence at the hearing, Gherman and Carpenter testified regarding the incidents and
denied engaging in the behavior described by Appellees. The trial court was free to
believe or disbelieve this testimony.
{¶ 51} In light of the foregoing, we find that Appellees met their burden under R.C.
2903.214 of demonstrating by a preponderance of the evidence that Appellants engaged
in conduct constituting menacing by stalking. The trial court, therefore, did not err in
issuing the CSPOs.
Gherman's CSPO Against Terri
{¶ 52} Turning to Gherman's claim that the trial court erred in denying his petition
for a CSPO against Terri, we find no error in the trial court's decision.3 In denying
3. We note that, in his petition, Gherman marked that he also sought a sexually oriented offense civil protection order against Terri based upon the same events. At the final hearing, Gherman limited his presentation of the evidence to his request for a CSPO. To the extent Gherman claims the trial court should have granted Gherman a sexually oriented offense civil protection order against Terri, we disagree. Not only did Gherman fail to indicate such an objection to the magistrate's decision, but he also does not raise it as an issue on appeal to this court. Even if he had properly raised the issue, the record is void of any evidence that Terri committed a sexually oriented offense against any potentially protected person as required by R.C. 2903.211.
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Gherman's petition for a CSPO against Terri, the trial court found that, although Gherman
proved Terri's conduct was inappropriate, annoying, and alarming, he failed to establish
that she engaged in conduct constituting menacing by stalking. Gherman claims this
finding was in error for similar reasons discussed above. We disagree.
{¶ 53} Applying the law as recited above, we find the trial court did not err in
denying Gherman's CSPO petition against Terri. As discussed above, nearly the entire
case before this court centers upon the credibility of the witnesses. The magistrate
witnessed the parties' character and demeanor and assessed their credibility at the
hearing. As the trier of fact, the trial court was free to draw its own conclusions about
credibility and the weight to give to the testimony. In this case, the trial court opted to
accord more weight to Terri's version of events than Gherman's. After reviewing the
record, we have no reason to question the magistrate's credibility determinations. Finding
the testimony of Terri credible, there was ample evidence to support the trial court's
decision that Terri did not knowingly cause Gherman to believe she would cause him
physical harm or caused him mental distress. Terri largely denied engaging in the conduct
testified to by Gherman and offered reasonable explanations for the interactions they had.
{¶ 54} However, even if we accept Gherman's allegations against Terri as true and
believe that Terri took a photograph of Carpenter on April 12, 2024; was present at the
Alternatives to Violence office on April 17, 2024; and engaged in other behavior meant to
annoy and bother Gherman, a reasonable trier of fact could find this conduct insufficient
to warrant a CSPO. That is, when considering the evidence in the context of this case,
including the history of conduct between the parties and their status as neighbors who
live on the same street, a trier of fact could reasonably characterize Terri's behavior as
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simply annoying and inconvenient to Gherman. Mere mental stress or annoyance is not
the proper subject for a civil protection order. Konk, 2024-Ohio-1516, at ¶ 15; see also
McNaughton v. Cochenour, 2015-Ohio-4648, ¶ 26 (4th Dist.); Caban v. Ransome, 2009-
Ohio-1034, ¶ 29 (7th Dist.).
{¶ 55} Based upon the evidence in the record, Gherman failed to establish, by a
preponderance of the evidence, that Terri's conduct constituted menacing by stalking and
therefore, warranted a CSPO. Therefore, we find the trial court did not err when it denied
Gherman's petition for a CSPO against Terri.
{¶ 56} Accordingly, Appellants second and third assignments of error are
overruled.
{¶ 57} Assignment of error No. 4:
{¶ 58} THE TRIAL COURT ERRED IN GRANTING A CIVIL PROTECTION
ORDER THAT INTERFERED WITH RESPONDENTS' LEGITIMATE HOME AND FAMILY
RIGHTS.
{¶ 59} In their final assignment of error, Appellants argue the trial court abused its
discretion when it granted CSPOs against them that include restrictions that "jeopardize
[their] home and family," and "prohibit [them] from doing anything or going anywhere
involving their own home, or their children[.]"
{¶ 60} An appellate court reviews a challenge to the scope of a CSPO under an
abuse of discretion standard. Coleman v. Razete, 2019-Ohio-2106, ¶ 30 (1st Dist.).
Following a full hearing on a petition for a CSPO, R.C. 2903.214(E)(1) permits a trial court
to issue a CSPO containing "terms designed to ensure the safety and protection of the
person to be protected by the protection order." Restrictions placed on the respondent in
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the CSPO must bear a sufficient nexus to the conduct that the trial court is attempting to
prevent. Lazor v. Souders, 2024-Ohio-774, ¶ 63 (12th Dist.).
{¶ 61} In this case, the magistrate issued CSPOs against Gherman and Carpenter
that were adopted by the trial court. According to the terms of the CSPOs, Appellants are
prohibited from entering the residence or school of any protected persons named in the
orders, including Megan's children. The CSPOs further direct Appellants to stay more
than 250 feet from any protected persons identified in the orders and not to initiate or
otherwise have contact with those protected persons. The CSPOs include a provision
clarifying that the
order does not prohibit any person from being on public streets or sidewalks. It does prohibit any attempt at communicating with the protected persons . . . This order does not prohibit lawful security cameras placed on homes and used for the purpose of providing security. It does prohibit use of cell phones or other recording devices used for purpose of monitoring behaviors of the protected persons.
{¶ 62} After Appellants objected to the magistrate's decision, the trial court
modified the terms of the CSPOs. In so doing, the trial court added the following language
to the CSPOs:
This provision shall NOT preclude [Gherman] from being at his minor daughter's school, including drop [off] and pick up from school, and shall NOT preclude [Gherman] from attending his minor daughter's school activities. [Gherman] shall NOT engage in any contact with [Appellees] or protected persons while he is present at the school or school activities . . . Further, this Order does not prohibit [Appellants] from residing in [their] residence.
After considering Appellants' objections in their entirety, the trial court incorporated the
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above language into the issued CSPOs and further added that, in addition to school
activities, Gherman was permitted to attend the extracurricular activities of his minor
children.
{¶ 63} On appeal, Appellants claim the trial court's modifications are insufficient
and that the terms of the CSPOs unreasonably interfere with Appellants' use of their own
home and their activities with their family. After our review, we find no merit to Appellants
claims.
{¶ 64} As an initial note, Appellants do not cite any specific condition of the CSPOs
that unreasonably restricts their ability to use their home or to engage in activities with
their family or children. Instead, Appellants speculate that the terms of the CSPOs could
lead to arbitrary allegations from Appellees, including that Appellants "stopp[ed] on the
street for too long," or "look[ed] in the wrong direction." As such, Appellants contend "the
terms that prohibit [them] from doing anything or going anywhere involving their own
home . . . should be excluded to allow for entirely legitimate activities." Notwithstanding
Appellants' claims, the plain language of the CSPOs provides that Appellants may reside
in their home, may use the public sidewalks and streets, and that Gherman may attend
his daughter's extracurricular activities. Although the terms of the CSPOs restrict
Appellants from engaging in or initiating contact with the persons protected by the orders,
their use of their home and public amenities such as streets and sidewalks remain
unrestricted. Based upon the plain language of the orders, we decline to find that the
terms of the CSPOs are overly broad or unreasonably restrict Appellants' use and
enjoyment of their home.
{¶ 65} Furthermore, although Appellants cite to various cases for the proposition
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that civil protection order restrictions must bear a sufficient nexus to the conduct the trial
court is attempting to prevent, Appellants do not set forth any argument that such a nexus
does not exist in this case. Instead, Appellants focus their argument upon the unduly
restrictive nature of the CSPOs terms in general. After our review, we find the terms of
the CSPOs are sufficiently related to the conduct that the trial court is attempting to
prevent. That is, the record demonstrates that the trial court awarded CSPOs against
Appellants due to the threatening nature of their contact with Appellees and Megan's
children. This includes repeated instances of name calling, threats, and electronic
monitoring discussed above. Based upon the evidence produced at the hearing, it is
entirely reasonable for the trial court to impose restrictions aimed at preventing this type
of contact, including any contact that may occur in public spaces. As such, the trial court
did not abuse its discretion in granting the CSPOs as modified.
{¶ 66} Appellants' fourth assignment of error is overruled.
Conclusion
{¶ 67} Finding no merit to any of the arguments raised herein, we affirm the
judgment of the trial court in its entirety.
PIPER and BYRNE, JJ., concur.
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.
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It is further ordered that a mandate be sent to the Clinton County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Robert A. Hendrickson, Presiding Judge
/s/ Robin N. Piper, Judge
/s/ Matthew R. Byrne, Judge
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