[Cite as Liles v. Keith, 2009-Ohio-6874.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STACEY J. LILES,
PETITIONER-APPELLEE, CASE NO. 2-09-22
v.
JAMES P. KEITH, II, OPINION
RESPONDENT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2009 CV 210
Judgment Affirmed
Date of Decision: December 28, 2009
APPEARANCES:
John C. Huffman for Appellant
Stacey Liles, Appellee Case No. 2-09-22
SHAW, J.
{¶1} The respondent-appellant, James P. Keith, II, appeals the June 26,
2009, judgment of the Common Pleas Court of Auglaize County, Ohio, granting
the request of petitioner-appellee, Stacey Liles, for a stalking civil protection order
(“CPO”).
{¶2} The facts of this case are as follows. On June 12, 2009, Liles filed a
petition for a stalking civil protection order against Keith, her former boyfriend.
In her petition, Liles alleged that Keith engaged in numerous acts against her that
made her fear for her safety. On June 16, 2009, the trial court held an ex parte
hearing on Liles’ petition but denied her request for an emergency order.
However, the court set the matter for a full hearing on June 26, 2009, to determine
whether to issue a permanent order of protection.
{¶3} On June 26, 2009, the trial court held the hearing. Liles testified in
support of her petition. During her testimony, Liles testified that on multiple
occasions, spanning from January 8, 2009, until June of 2009, Keith had driven
past her, shouting and raising his middle finger to her. On one such occasion, in
April of 2009, Liles testified that Keith was driving behind her on Breese Road
when he raised his middle finger to her and began moving closer to her vehicle.
She testified that at this time she “was afraid he was going to rear end me. My
boys were in there asking me if he was going to rear end us. They were scared.”
-2- Case No. 2-09-22
(Hrg., 6/26/09, p. 11.) On another occasion, in January of 2009, she testified that
she saw Keith at the Taco Bell drive-thru on Shawnee Road in Lima and that she
left the restaurant. She further testified that as she was driving down Ft. Amanda
Road and approached a stop light, she testified that Keith drove into the turn lane,
“looked over at all of us, pointing his finger up like a gun like he was going to
shoot us all. Then he squealed his tires and took off.” (id.) On yet another
occasion, in March of 2009, she testified that Keith was passing her in his vehicle
on State Route 65 when he swerved towards her vehicle. Although he did not
actually enter her lane of travel, Liles stated that she felt threatened. She further
testified that she simply wanted Keith to act like he did not know her if they
happened to encounter one another so that she did not have to feel threatened by
him making hand gestures towards her.
{¶4} After Liles testimony, Keith testified on his own behalf and denied
making any gestures towards Liles or driving his vehicle in any way as she
described. Keith’s son also testified for his father. His testimony related to one
incident in June where Liles had testified that Keith stopped his vehicle in front of
hers in Cridersville, Ohio, raised his middle finger to her, and appeared to be
shouting at her although she could not hear what he was saying. Keith’s son stated
that he recalled seeing Liles at a stop sign in Cridersville when he was a passenger
-3- Case No. 2-09-22
in his father’s vehicle but that the only thing his father did was wave at Liles and
state under his breath, “Hi, Stacey.”
{¶5} At the conclusion of the hearing, the trial court stated that it chose to
believe Liles’ testimony. Consequently, the court granted her petition for a CPO.
This appeal followed, and Keith now asserts two assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO APPLY THE CORRECT LEGAL STANDARD FOR WHETHER A CIVIL STALKING PROTECTION ORDER SHOULD BE ISSUED.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT’S DECISION TO GRANT A CIVIL STALKING PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} As Keith’s assignments of error are related, we elect to address them
together. When reviewing a trial court’s decision to grant a civil protection order,
we will not reverse such a decision absent an abuse of discretion. Kramer v.
Kramer, 3rd Dist. No. 13-02-03, 2002-Ohio-4383. Abuse of discretion “connotes
more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140. Further, if there is some competent,
credible evidence to support the trial court’s decision, there is no abuse of
-4- Case No. 2-09-22
discretion. Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426; see also, C.E.
Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578.
{¶7} Revised Code section 2903.214 governs the issuance of a civil
stalking protection order. This section provides that a person may seek civil relief
against an alleged stalker by filing a petition containing “[a]n allegation that the
respondent engaged in a violation of section 2903.211 of the Revised Code against
the person to be protected by the protection order * * *, including a description of
the nature and extent of the violation.” R.C. 2903.214(C)(1). Thus, in order to
obtain a civil stalking protection order, Liles had to establish by a preponderance
of the evidence, that Keith engaged in a violation of R.C. 2903.211, the menacing
by stalking statute, against her. Kramer, supra, at ¶ 14.
{¶8} Revised Code section 2903.211(A)(1), Ohio’s menacing by stalking
statute, provides that “[n]o person by engaging in a pattern of conduct shall
knowingly cause another to believe that the offender will cause physical harm to
the other person or cause mental distress to the other person.” 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). Additionally, one incident is not sufficient to
establish a “pattern of conduct.” Kramer, supra, at ¶ 15, citing State v. Scruggs
(2000), 136 Ohio App.3d 631, 737 N.E.2d 574.
-5- Case No. 2-09-22
{¶9} In this case, Keith correctly contends that the trial court could not
merely rely upon the fact that Liles filed the petition as a basis for granting the
order. However, the court did not rely merely upon the filing of the petition. It
relied upon the statements that she made in court as well, which it was entitled to
do. Specifically, the court stated that it had considered the testimony of the parties
and that it simply came to a question of who to believe. The court then decided to
believe Liles.
{¶10} Keith contends that instead of properly considering the evidence, the
trial court seemed to improperly base its decision merely by reasoning that Liles
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[Cite as Liles v. Keith, 2009-Ohio-6874.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STACEY J. LILES,
PETITIONER-APPELLEE, CASE NO. 2-09-22
v.
JAMES P. KEITH, II, OPINION
RESPONDENT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2009 CV 210
Judgment Affirmed
Date of Decision: December 28, 2009
APPEARANCES:
John C. Huffman for Appellant
Stacey Liles, Appellee Case No. 2-09-22
SHAW, J.
{¶1} The respondent-appellant, James P. Keith, II, appeals the June 26,
2009, judgment of the Common Pleas Court of Auglaize County, Ohio, granting
the request of petitioner-appellee, Stacey Liles, for a stalking civil protection order
(“CPO”).
{¶2} The facts of this case are as follows. On June 12, 2009, Liles filed a
petition for a stalking civil protection order against Keith, her former boyfriend.
In her petition, Liles alleged that Keith engaged in numerous acts against her that
made her fear for her safety. On June 16, 2009, the trial court held an ex parte
hearing on Liles’ petition but denied her request for an emergency order.
However, the court set the matter for a full hearing on June 26, 2009, to determine
whether to issue a permanent order of protection.
{¶3} On June 26, 2009, the trial court held the hearing. Liles testified in
support of her petition. During her testimony, Liles testified that on multiple
occasions, spanning from January 8, 2009, until June of 2009, Keith had driven
past her, shouting and raising his middle finger to her. On one such occasion, in
April of 2009, Liles testified that Keith was driving behind her on Breese Road
when he raised his middle finger to her and began moving closer to her vehicle.
She testified that at this time she “was afraid he was going to rear end me. My
boys were in there asking me if he was going to rear end us. They were scared.”
-2- Case No. 2-09-22
(Hrg., 6/26/09, p. 11.) On another occasion, in January of 2009, she testified that
she saw Keith at the Taco Bell drive-thru on Shawnee Road in Lima and that she
left the restaurant. She further testified that as she was driving down Ft. Amanda
Road and approached a stop light, she testified that Keith drove into the turn lane,
“looked over at all of us, pointing his finger up like a gun like he was going to
shoot us all. Then he squealed his tires and took off.” (id.) On yet another
occasion, in March of 2009, she testified that Keith was passing her in his vehicle
on State Route 65 when he swerved towards her vehicle. Although he did not
actually enter her lane of travel, Liles stated that she felt threatened. She further
testified that she simply wanted Keith to act like he did not know her if they
happened to encounter one another so that she did not have to feel threatened by
him making hand gestures towards her.
{¶4} After Liles testimony, Keith testified on his own behalf and denied
making any gestures towards Liles or driving his vehicle in any way as she
described. Keith’s son also testified for his father. His testimony related to one
incident in June where Liles had testified that Keith stopped his vehicle in front of
hers in Cridersville, Ohio, raised his middle finger to her, and appeared to be
shouting at her although she could not hear what he was saying. Keith’s son stated
that he recalled seeing Liles at a stop sign in Cridersville when he was a passenger
-3- Case No. 2-09-22
in his father’s vehicle but that the only thing his father did was wave at Liles and
state under his breath, “Hi, Stacey.”
{¶5} At the conclusion of the hearing, the trial court stated that it chose to
believe Liles’ testimony. Consequently, the court granted her petition for a CPO.
This appeal followed, and Keith now asserts two assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO APPLY THE CORRECT LEGAL STANDARD FOR WHETHER A CIVIL STALKING PROTECTION ORDER SHOULD BE ISSUED.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT’S DECISION TO GRANT A CIVIL STALKING PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} As Keith’s assignments of error are related, we elect to address them
together. When reviewing a trial court’s decision to grant a civil protection order,
we will not reverse such a decision absent an abuse of discretion. Kramer v.
Kramer, 3rd Dist. No. 13-02-03, 2002-Ohio-4383. Abuse of discretion “connotes
more than an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219, 450 N.E.2d 1140. Further, if there is some competent,
credible evidence to support the trial court’s decision, there is no abuse of
-4- Case No. 2-09-22
discretion. Ross v. Ross (1980), 64 Ohio St.2d 203, 414 N.E.2d 426; see also, C.E.
Morris Co. v. Foley Const. Co. (1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578.
{¶7} Revised Code section 2903.214 governs the issuance of a civil
stalking protection order. This section provides that a person may seek civil relief
against an alleged stalker by filing a petition containing “[a]n allegation that the
respondent engaged in a violation of section 2903.211 of the Revised Code against
the person to be protected by the protection order * * *, including a description of
the nature and extent of the violation.” R.C. 2903.214(C)(1). Thus, in order to
obtain a civil stalking protection order, Liles had to establish by a preponderance
of the evidence, that Keith engaged in a violation of R.C. 2903.211, the menacing
by stalking statute, against her. Kramer, supra, at ¶ 14.
{¶8} Revised Code section 2903.211(A)(1), Ohio’s menacing by stalking
statute, provides that “[n]o person by engaging in a pattern of conduct shall
knowingly cause another to believe that the offender will cause physical harm to
the other person or cause mental distress to the other person.” 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). Additionally, one incident is not sufficient to
establish a “pattern of conduct.” Kramer, supra, at ¶ 15, citing State v. Scruggs
(2000), 136 Ohio App.3d 631, 737 N.E.2d 574.
-5- Case No. 2-09-22
{¶9} In this case, Keith correctly contends that the trial court could not
merely rely upon the fact that Liles filed the petition as a basis for granting the
order. However, the court did not rely merely upon the filing of the petition. It
relied upon the statements that she made in court as well, which it was entitled to
do. Specifically, the court stated that it had considered the testimony of the parties
and that it simply came to a question of who to believe. The court then decided to
believe Liles.
{¶10} Keith contends that instead of properly considering the evidence, the
trial court seemed to improperly base its decision merely by reasoning that Liles
would not have filed the petition if the allegations were not true. Keith points to
the following statement of the trial court from the bench prior to announcing its
decision: “Court just finds it unlikely that someone would go to the extent of
filing such a thing and making the allegations that are made if they aren’t true,
especially when that proceeding has been done in the past.” (Hrg., 6/26/09, p. 55.)
{¶11} While it is somewhat unclear exactly what the trial court meant by
this remark, we do not believe that it reflects the basis of the trial court’s decision
in light of the ample evidence in the record supporting the decision – and
particularly in view of the trial court’s explicit reference to weighing the testimony
of Liles and Keith and finding Liles’ testimony more credible.
-6- Case No. 2-09-22
{¶12} In sum, given the testimony of Liles, which the court, having been
able to examine all the witnesses and their respective demeanors, was within its
prerogative as the trier of fact to believe, the trial court did not err in granting the
CPO. As noted, Liles testified to numerous incidences wherein Keith raised his
middle finger to her and appeared to be yelling something to her. Further, she
testified as to two different incidences where she actually felt threatened. These
incidences involved Keith driving his vehicle in a manner that caused her to fear
that his moving vehicle would collide with hers. In addition, she testified that she
felt threatened by his hand gestures and described an incident where he used his
fingers to form the shape of a gun, which he pointed at her. Thus, the trial court
had some competent, credible evidence that Keith, while engaging in two or more
actions or incidents closely related in time, knowingly caused Liles to believe that
Keith would cause physical harm to her. Accordingly, Keith’s two assignments of
error are overruled.
{¶13} For these reasons, the judgment of the Common Pleas Court of
Auglaize County, Ohio, is affirmed.
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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