[Cite as Hays v. Colyer, 2025-Ohio-724.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
RACHEL R. HAYS : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. -vs- : : CHRISTOPHER COLYER : Case No. 2024CA00113 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2024MI00080
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 3, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
No appearance MYRON P. WATSON WATSON KUHLMAN, LLC 75 Erieview Plaza, Suite 108 Cleveland, OH 44114 Montgomery, J.
{¶1} Appellant, Christopher Colyer, appeals from the issuance of a Civil Stalking
Protection Order by the Stark County Court of Common Pleas in favor of Rachel Hays
and against Christopher Colyer. The order remains in effect for one year from the date
issued, or until June 24, 2025. Appellee, Rachel Hays, did not file a brief in response to
appellant’s brief or corresponding assignments of error. For the following reasons, we
affirm the trial court’s decision and entry granting the CSPO and overrule appellant’s six
assignments of error in their entirety.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
{¶2} On March 14, 2024, Rachel Hays (“Hays”) filed a petition for a civil stalking
protection order (“CSPO”) against Christopher Colyer (“Colyer”). The Stark County Court
of Common Pleas initially granted the petition ex-parte, and the matter came before the
Court for a full evidentiary hearing on May 2, 2024. At the full hearing, Hays and her
counsel, Max Haupt, were present as well as Colyer and his counsel, Benjamin Zushin.
The facts leading to Hays’ petition, and as found by the trial court, are as follows.1
{¶3} In May 2020, Hays met Colyer through a mutual acquaintance and the two
went out on a blind date. Although Colyer lived approximately two hours from Hays, the
two continued to date for a little over one year, until July 2021. After this initial break up,
Hays testified that Colyer continued to call, text, sometimes show up at Hays’ place of
work or her home without advance notice and even calling from unrestricted numbers –
so much so that she began turning off her phone when she was going to and from work.
1 At the beginning of the hearing Exhibits 1 through 30 were introduced and admitted into evidence, predominantly a series of text threads, a couple of pictures, and a voicemail that was recorded. Colyer’s attorney stipulated to the admission of the Exhibits. See Tr. of Proc., May 2, 2024, p. 8. See Tr. of Proc. (“Tr.”), May 2, 2024, at pp.11-12. Hays alluded to the intensity of their
relationship and that it had been a roller coaster of emotions (while dating and after the
break-up). Tr. at pp. 13-14. After the break-up, Colyer told Hays he would get counseling
but always told her “what [she] wanted to hear.” Tr. at p. 15.
{¶4} In August 2021, Hays reached out and texted Colyer to wish him a happy
40th birthday, an act she later regretted. Said contact led to a brief rekindling of their
relationship, even attending a counseling session together in November 2021 “to discuss
all of the stuff that had transpired while we were broken up and just the emotional distress,
the intensity, just - - somehow we got back together after that which was very short lived.”
Tr. at p. 12. They saw each other one time in December 2021, then Hays ultimately broke
up with Colyer a second time on or about February 3, 2022.
{¶5} After this second breakup in February 2022, Hays had little contact with
Colyer. Indeed, as the trial court found, Hays tried to make it clear to him that she was
not going to get back together with him. Exhibits 1-30, stipulated by counsel at the full
hearing and fully reviewed and considered by the trial court, indicate that Hays sent
several messages to Colyer telling him in various ways that she wished to go her separate
way. Nonetheless, in May 2022, upon her return from a trip to Columbus, Hays noticed
gifts on her front porch including notes from Colyer, a collage of photographs from the
time they dated, and a two-year anniversary card. Hays testified that this incident caused
her fear and a general feeling that something was “not right” because he included the
anniversary card but they had been broken up for three months.
{¶6} On or about June 7, 2022, Colyer texted “I love you” to Hays. Later that
same day, around just before midnight, Hays woke up to a loud “rapping” at her door, and her phone began ringing at the exact same time. Colyer was outside of Hays’ home and
told Hays “I need to talk to you. I am downstairs.” Hays testified that the hair on the back
of her neck stood up as she went downstairs. Tr. at pp. 19-20. Hays spoke to Colyer
through a window screen - she did not want to open the door - and told him to stop and
to leave her alone. Hays was indeed scared after this incident, even calling her parents
to talk to them about it.
{¶7} In July 2022, Colyer continued to text Hays, but Hays ignored everything
from him. One day, Hays was driving with her minor children on Route 62, and Colyer’s
car appeared next to her (despite him living 2 hours away), kept pulling up in front of her
until he finally sped up and pulled into a farm market. Again, Hays was very scared and
later had her car inspected to ensure he had not placed a GPS device on her vehicle;
however, there was no evidence of any such device.
{¶8} Colyer’s behavior continued until February 2023, more than one year after
they broke up the second time. As noted by the trial court, Hays provided exhibits as well
as testimony to show that she did not want anything to do with Colyer, that his pattern of
behavior was increasing, that she did not think he would stop, and that she went to the
police due to his continued behavior. Although the police initially stated they could not
assist Hays, she continued to ignore his efforts. Colyer began showing up at her house
and he made repeated phone calls. Hays testified that due to his behavior, she changed
some aspects of her life. On one occasion, one of her children accidentally answered the
phone; it was Colyer calling from an anonymous number. After this call, Colyer left a
voicemail stating how much he loved and missed Hays and that he was going to move
closer to Hays because he wanted to be in a relationship with her. Indeed, the voicemail was admitted into evidence as Exhibit 19 and the trial court found it corresponded to Hays’
testimony.
{¶9} After this voicemail, Hays went to the police a second time, and thereafter,
Colyer was instructed to have no contact with her. Unfortunately, Colyer disregarded said
order and, on April 21, 2023, he was arrested, charged, and placed on GPS monitoring
until his criminal trial began, which was approximately nine (9) months. During this time,
Colyer had no contact with Hays, and Hays testified that she felt better during this time.
On January 4, 2024, Colyer was acquitted of the felony charge “menacing by stalking.”
The court found that the evidence presented did not satisfy the criminal burden of beyond
a reasonable doubt. However, the criminal court did impose a “good behavior” period for
six months, starting from the date of the acquittal. Between April 21, 2023, and March
26, 2024, there was no contact between Hays and Colyer.
{¶10} As stated, on March 14, 2024, nearly a year after the last contact, Hays filed
her petition for CSPO against Colyer. An ex-parte order issued, with a full evidentiary
hearing on May 2, 2024, before a Magistrate. At the full hearing, both parties were
afforded the opportunity to present witnesses, exhibits, arguments, etc. Hays testified a
CSPO was necessary due to Colyer’s prior conduct, outlined in detail above. Hays
testified to her fear and mental distress, attended counseling due to Colyer’s behavior,
and at the time of the hearing, continued to seek counseling treatment. Colyer, by and
through counsel, fully cross-examined Hays, and made his best arguments against
issuing the CSPO. Through cross-examination, Hays admitted that their relationship
lasted about a year, that due to Colyer’s work schedule he would sometimes call at odd
times (e.g. while she was driving to and from work), that she initiated the contact in August 2021 for his 40th birthday, and that they were in fact intimate in December 2021. Hays
further admitted that between January 4, 2024, and March 26, 2024, there was no contact
from Colyer.
{¶11} After closing arguments by counsel, the Magistrate refrained from ruling
from the bench and decided to take the matter under advisement. The Magistrate stated
that both parties made “good arguments,” but the court wanted to “take a look at all the
text messages” and review the “applicable law to understand some things that I don’t
know. I want to know more about subjective perception versus objective perception.” See
Tr. at p. 94. Shortly thereafter, the Magistrate rendered a detailed Decision with Findings
of Fact and Conclusions of Law (“Decision”).
{¶12} The Magistrate concluded that Hays proved by a “preponderance of the
evidence” that Colyer engaged in menacing by stalking sufficient to justify imposition of
the CSPO. See R.C. 2903.214(C) and R.C. 2903.211. The Decision states that although
no single incident may rise to the necessary level of stalking, Colyer’s “pattern of conduct,”
taken as a whole and despite Hays’ repeated requests to stop, established that Hays
believed Colyer may harm her and that Colyer did in fact cause Hays severe emotional
distress. Therefore, the Magistrate recommended a full CSPO in effect for one year
(rather than 5 years as requested by Hays) to begin June 24, 2024, and expire on June
24, 2025. The trial judge adopted the Magistrate’s decision and recommendation. Colyer
timely filed the instant appeal. Colyer asserts six (6) assignments of error, all of which
argue in some way that the trial court improperly found sufficient evidence to issue the
CSPO. SPECIFIC ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED IN FINDING SUFFICIENT EVIDENCE TO SUPPORT THE ISSUANCE OF A CIVIL STALKING PROTECTION ORDER UNDER R.C. 2903.214;
{¶14} II. THE TRIAL COURT ERRED IN ISSUING A CSPO DESPITE EVIDENCE THAT THE PETITIONER VOLUNTARILY REKINDLED CONTACT WITH RESPONDENT AFTER THE ALLEGED HARASSMENT BEGAN;
{¶15} III. THE TRIAL COURT ERRED IN RELYING ON THE ABSENCE OF REBUTTAL EVIDENCE BY RESPONDENT TO JUSTIFY THE ISSUANCE OF THE PROTECTION ORDER;
{¶16} IV. THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE TIME GAP BETWEEN THE ALLEGED CONDUCT AND THE ISSUANCE OF THE PROTECTION ORDER;
{¶17} V. THE TRIAL COURT ERRED IN FAILING TO ACKNOWLEDGE AND GIVE WEIGHT TO RESPONDENT’S ACQUITTAL ON MENACING STALKING CHARGES, WHICH DIRECTLY IMPACTS THE CREDIBILITY OF THE PETITIONER’S CLAIMS;
{¶18} VI. THE MAGISTRATE AND THE JUDGE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE CSPO.”
STANDARD OF REVIEW
{¶19} Although appellant asserts six different assignments of error, the first,
second, third, and fourth are interrelated, address the “evidence” submitted and relied
upon by the trial court, and will be addressed together.
{¶20} When an appellant argues that insufficient evidence exists to support the
trial court’s decision, a reviewing court must not substitute its judgment for that of the trial
court where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. The
weight to be given the evidence and the credibility of the witnesses are issues for the trier
of fact. State v. Jamison, 49 Ohio St.3d 182, (1990). The trier of fact “has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that
does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418
(1997); Seasons Coal Co. v. City of Cleveland (1984), 10 Ohio St.3d 77, 80 (1984) (stating
that the trial judge is best able to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of
the proffered testimony). If the issue on appeal is the scope of the CSPO (e.g. tailored in
some way), the standard of review is abuse of discretion. Williams v. Hupp, 2011-Ohio-
3403, ¶ 21 (7th Dist.). Here, appellant maintains that there was insufficient evidence to
issue the CSPO in the first instance such that the scope is not in question. Burre v. Utt,
2025-Ohio-29, ¶¶ 25, 26 (5th Dist.).
CIVIL STALKING PROTECTION ORDERS
{¶21} Importantly, a CSPO “is a special statutory remedy that is designed to
prevent violence” before it happens. Burre, supra, at ¶ 27, citing Bey v. Rasawehr, 161
Ohio St.3d 79 (2020). The petitioner has the burden of proving entitlement to the CSPO
by a preponderance of the evidence. Olenik v. Huff, 2003-Ohio-4621, ¶17-18.
“Preponderance of the evidence” is “evidence which is of greater weight or more
convincing than the evidence which is offered in opposition to it; that is, evidence which
as a whole shows that the fact sought to be proved is more probable than not.” Burre, at
¶ 27, quoting Black's Law Dictionary 1182 (6th Ed. 1990).
{¶22} R.C. 2903.214 governs the issuance of stalking civil protection orders and
provides in relevant part: “(C) A person may seek relief * * * by filing a petition with the
court. The petition must state both of the following: (1) [a]n allegation that the respondent
engaged in a violation of section 2903.211 [menacing by stalking] * * * against the person to be protected by the protection order, including a description of the nature and extent of
the violation; and (2) [a]request for relief under this section.” Baddour v. Fox, 2000 WL
1719569, *2 (Fifth Dist. Nov. 15, 2000).
{¶23} R.C. 2903.211 defines “menacing by stalking” and provides “(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 * * *(emphasis added).” A person acts knowingly, regardless
of purpose, when the person is aware that the person's conduct will probably cause a
certain result or will probably be of a certain nature. Burre, supra, at ¶ 29, citing R.C.
2901.22(B).2 Whether a person acts knowingly is determined by examining all the
surrounding facts and circumstances, including the doing of the act itself. Burre, at ¶ 29,
citing, State v. Jacobs, 2021-Ohio-1611, 2021 WL 1828102, ¶ 16 (5th Dist.); State v. Huff,
145 Ohio App.3d 555, 563, 763 N.E.2d 695 (1st Dist. 2001).
{¶24} A “pattern of conduct” is defined as “two 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.” R.C. 2903.211(D)(1). The Court may consider every action “even
if some actions in isolation would not seem particularly threatening.” Middletown v. Jones,
167 Ohio App.3d 679, 2006-Ohio-3465, ¶ 10 (12th Dist).
{¶25} Finally, R.C. 2903.211(D)(2) defines “[m]ental distress” as one of the
following:
2 In other words, a petitioner is not required to prove either purpose or intent to cause the physical
harm or mental distress. It is sufficient that the alleged offender knowingly preformed an act that resulted in causing the victim mental distress. Any mental illness or condition that involves some temporary
substantial incapacity;
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.
{¶26} Mental distress need not be incapacitating or debilitating, and expert
testimony is not required. See Burre, supra, at ¶ 32; citing Rufener v. Hutson, 2012-Ohio-
5061, 2012 WL 5364703 (8th Dist.); Jenkins v. Jenkins, 2007-Ohio-422 (10th Dist.). When
proving mental distress, a temporary incapacity is substantial if it significantly impacts the
petitioner's daily life - evidence of a changed routine is pertinent. Id. at ¶ 17, citing Ramsey
v. Pellicioni, 2016-Ohio-558, ¶ 21 (7th Dist.). Thus, “[a]n inability to sleep or concentrate
on work can qualify as a temporary substantial incapacity, and consultation with a mental
health provider is some evidence of mental distress. Id. Moreover, “[t]estimony that a
respondent's conduct caused the person considerable fear can support a finding of
mental distress.” A.V. v. McNichols, 2019-Ohio-2180, ¶ 24 (4th Dist.); Miller v. Leome,
2024-Ohio-1325, ¶ 10, (7th Dist.).
COLYER’S ARGUMENTS
{¶27} As set forth above, appellant’s first four assignments of error address the
“evidence” the trial court relied upon, or not, in issuing the CSPO. Appellant argues (1)
there was insufficient evidence overall to issue the CSPO, meaning Hays failed to meet
the preponderance of the evidence burden of proof; (2) the trial court failed to properly
consider the fact that Hays voluntarily reached out to Colyer in August 2021 to “rekindle” the relationship; (3) the trial court improperly relied on the absence of rebuttal evidence
by Colyer; and (4) the trial Court did not consider the “time gap” and his compliance with
legal restrictions/orders between the alleged conduct and the issuance of the CSPO. We
disagree with appellant’s arguments.
{¶28} A thorough review of the transcript of proceedings, as well as the trial court’s
Decision containing detailed Findings of Fact and Conclusions of Law, reveals that the
trial court carefully weighed the evidence after conducting a full evidentiary hearing.
Rather than ruling from the bench, the Magistrate took the matter under advisement to
properly assess the evidence and review the applicable law and ultimately determined
that Hays tipped the scales in her favor.
{¶29} In addition to Hays’ testimony – both direct and on cross, the parties
stipulated to Exhibits 1 through 30 and such exhibits were admitted into evidence. In so
stipulating, Colyer’s attorney stated that the exhibits “are predominantly a series of text
threads although Exhibit 19 is the voicemail that was recorded.” Tr. at p. 8. In its decision,
the trial court found that after the couple broke up in February 2022, and after
approximately a year of ignoring him or trying to ignore him, Hays was worried “it was not
going to stop.” See Magistrate’s Decision at p. 5, Finding of Fact 28. Indeed, Hays
demonstrated over 102 contacts to her from Colyer in the 13 months after the second
break-up in February 2022. Id., Findings of Fact 28, 30. Such contacts included a
voicemail in February 2023 from Colyer stating how much he loved her, missed her, and
wanted to move closer to her; Hays was “very scared” after this incident. Id., Finding of
Fact 31. {¶30} After the voicemail, Hays relayed the information to the police a second time
and the police swiftly issued a no contact order. Within weeks, Colyer again contacted
Hays, so he was arrested, criminally charged, and placed on GPS monitoring. Hays
testified that Colyer caused her such mental distress that she “has continued to attend
treatment due to the fear and distress [Colyer] has caused her.” See Decision at p. 5,
Finding of Fact 36. The Decision acknowledges that while no single incident may have
risen to the level required for issuance of a CSPO, Colyer’s actions overall, despite
repeated requests and nonreciprocity by Hays, established by a preponderance of the
evidence that Hays believed Colyer may harm her and did in fact cause Hays severe
emotional distress. This Court agrees.
{¶31} After a thorough review of the record, this Court agrees that Hays met her
burden of proof by tipping the scales in her favor. As such, there is competent, credible
evidence to support the trial court’s decision to issue the CSPO.
{¶32} Regarding Colyer’s argument that Hays “rekindled” the relationship when
she texted him on his 40th birthday, Hays admitted to said action and Colyer’s counsel
fully cross-examined Hays on the issue. After a brief rekindling, Hays redetermined in
early February 2022 that the relationship was not healthy and wanted to go her separate
ways. As set forth above, it was after this second break-up in February of 2022 that the
pattern of conduct increased. Contrary to Colyer’s argument that he simply continued to
try and “romance” Hays, in the hopes of her getting back with him, a reasonable person
could interpret the increased pattern of conduct by Colyer to be a very real problem.
{¶33} Similarly, Colyer’s argument that the trial court improperly relied on a lack
of rebuttal evidence is without merit. Again, Colyer stipulated to the exhibits, had a full opportunity to cross-examine Hays’ testimony, present his own evidence, and argue his
position. The trial court acknowledged that “both parties made good arguments” and took
the matter under advisement as opposed to issuing the CSPO right then and there. The
lower court simply examined all of the evidence and other than cross-examination, Colyer
did not present much.
{¶34} Next, Colyer argues the trial court failed to consider the “time gap” between
the last alleged conduct and the issuance of the order, as well as Colyer’s compliance
with court orders and restrictions. Again, Colyer’s argument is unpersuasive to find error
on appeal. The Decision expressly speaks to the time gap but ultimately concluded that
such gap was “attributable to the fact that a no contact order was in effect, with GPS
monitoring, in a related criminal case, and the lapse of time since the criminal trial
concluded is attributable to existence of an ex parte [CSPO] in this case.” Magistrate’s
Decision at p. 9. In essence, the trial court considered this information but ultimately
rejected Colyer’s assertion that the “time gap” and his compliance was somehow proof
that he could and would leave Hays alone. Thus, there is no basis to claim the trial court
failed to consider anything when it simply rejected the argument given Colyer’s prior
actions.
{¶35} For these reasons, we find the trial court properly concluded that Hays
proved by a preponderance of the evidence that Colyer engaged in a pattern of conduct
knowing his conduct would cause Hays to believe Colyer would cause physical harm or
mental distress to her. Colyer did in fact cause Hays significant mental distress for which
she sought treatment. Accordingly, Colyer’s first, second, third, and fourth
assignments of error are overruled. {¶36} In his fifth assignment of error, Colyer claims the trial court erred in failing
to acknowledge and give weight to Colyer’s acquittal on criminal menacing stalking
charges, which directly impacts the credibility of Hays’ claims. We disagree. Again, a
review of the record indicates the trial court was fully aware of the criminal charges, his
arrest, the GPS monitoring, and ultimate outcome. Colyer’s not guilty verdict on criminal
charges is, simply stated, irrelevant in a corresponding civil case. The standard of proof
to issue a CSPO pursuant to R.C. 2903.14(C) is much less stringent – a preponderance
of the evidence, tipping the scales ever so slightly – compared to the much more stringent
criminal standard of proof which is beyond a reasonable doubt. Further, R.C. 2903.211
defines a “pattern of conduct” as two or more actions closely related in time “whether or
not there has been a prior conviction based on any of those actions.” R.C.
2903.211(D)(1). For these reasons, appellant’s fifth assignment of error is
overruled.
{¶37} In his sixth and final assignment of error, Colyer claims “the Magistrate and
the Judge Committed Grave Abuse of Discretion Amounting to Lack or Excess of
Jurisdiction in Issuing the CSPO.” Again, Colyer’s assertion has no merit. As fully set
forth above, the Magistrate conducted a full evidentiary hearing with equal opportunity to
both parties. After the hearing, the Magistrate carefully reviewed the testimony, evidence,
and all applicable law in rendering a very detailed decision with Findings of Fact and
Conclusions of Law. Finding no error, the trial court readily adopted said decision.
Because the trial court's decision to grant Hays’ petition was proper and is supported by
competent, credible evidence and is not against the manifest weight of the evidence,
appellant’s sixth assignment of error is overruled. CONCLUSION
{¶38} Based upon the foregoing, appellant’s first, second, third, fourth, fifth, and
sixth assignments of error are overruled and the judgment of the Stark County Court of
Common Pleas, is affirmed in all respects.
By: Montgomery, J.
Popham, J. concur.
Hoffman, P.J., concurs separately. Hoffman, P.J., concurring
{¶39} I concur in the majority's analysis and disposition overruling Appellant's
assignments of error.
{¶40} I write separately only to note my ongoing opinion a petitioner must actually
experience mental distress if that is the basis for the petition as set forth in my concurring
opinion in Z.J. v. R.M., 2023-Ohio-3552 (5th Dist.).