Mohammad v. Shahwan

2023 Ohio 4811

• Court: Ohio Court of Appeals
• Decided: December 29, 2023
• Docket: C-230128
• Status: Published

Opinion

[Cite as Mohammad v. Shahwan, 2023-Ohio-4811.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

RENAAD MOHAMMAD, : APPEAL NO. C-230128 TRIAL NO. DV-2201257 Petitioner-Appellant, :

vs. : O P I N I O N.

AMER SHAHWAN, :

Respondent-Appellee. :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 29, 2023

Blake P. Somers, LLC, and Sierra D. Causey, for Petitioner-Appellant,

McIntosh & McIntosh, PLLC, and M. Todd McIntosh, for Respondent-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Petitioner-appellant Renaad Mohammad (“petitioner”) appeals the

judgment of the Hamilton County Court of Common Pleas, Domestic Relations

Division, which denied her petition for a domestic violence civil protection order

(“DVCPO”). For the following reasons, we affirm the judgment of the trial court.

I. Background

{¶2} Petitioner filed a petition for a DVCPO pursuant to R.C. 3113.31,

requesting protection for herself and a minor child—K.S.—from respondent-appellee

Amer Shahwan (“respondent”). A hearing was held before the magistrate where each

party testified and presented evidence. The magistrate ultimately denied the request

for a DVCPO, finding that the evidence was insufficient to demonstrate an act of

domestic violence. Petitioner filed objections to the magistrate’s decision, arguing that

the evidence was insufficient to support the denial of a DVCPO where the evidence

supported findings under R.C. 3113.31 that respondent—her spouse—intentionally

caused bodily injury to petitioner and their son, caused K.S. to be an abused child, and

committed a sexually oriented offense against her. After reviewing the transcript of

proceedings and all exhibits, the trial court overruled the objections, finding that the

magistrate’s decision was supported by the evidence.

II. Law and Analysis

A. Standard of Review

{¶3} In reviewing the magistrate’s decision, the trial court was required to

determine whether “insufficient evidence existed to support the magistrate’s denial of

the order.” (Emphasis sic.) Durastanti v. Durastanti, 1st Dist. Hamilton No. C-

190655, 2020-Ohio-4687, ¶ 20. “To put it another way, the trial court needed to find

that the magistrate’s credibility determinations—including its decision to discount

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portions of [the petitioner]’s testimony—were insufficiently supported by the record.”

Id. Thus, by affirming the magistrate’s decision, the trial court found that sufficient

evidence existed to deny the DVCPO. Petitioner challenges this determination,

arguing that the evidence was sufficient to grant the DVCPO and thus implicitly argues

that there was insufficient evidence to deny the DVCPO. As the challenge is a

sufficiency-of-the-evidence challenge, this court must apply the sufficiency standard

of review. See Denney v. Sanders, 1st Dist. Hamilton No. C-150556, 2016-Ohio-5113,

¶ 16-17, 20, citing J.R. v. Pless, 9th Dist. Summit No. 27665, 2016-Ohio-14, ¶ 6-7

(determining the appropriate standard of review regarding civil stalking protection

orders and finding such orders substantially similar to DVCPOs).

{¶4} “When reviewing for sufficiency, it is a test of adequacy.” Denney at ¶

22, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶

11. This court must determine whether the evidence was legally sufficient to support

the judgment. Eastley at ¶ 11. Whether the evidence is legally sufficient is a question

of law. Id.

B. Sufficient Evidence Existed to Deny the DVCPO

{¶5} “To obtain a protection order pursuant to R.C. 3113.31, the petitioner

must prove by ‘a preponderance of the evidence’ that the respondent engaged in an act

of domestic violence against the petitioner or petitioner’s family.” Durastanti at ¶ 16,

citing Pinkston v. White, 12th Dist. Butler No. CA2019-06-094, 2019-Ohio-5165, ¶ 19;

see Felton v. Felton, 79 Ohio St.3d 34, 42, 679 N.E.2d 672 (1997). “Domestic violence”

includes, among other things, the occurrence of one or more of the following acts

against a family or household member: (1) attempting to cause or recklessly causing

bodily injury; (2) 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

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Revised Code; (3) committing any act with respect to a child that would result in the

child being an abused child, as defined in section 2151.031 of the Revised Code; or (4)

committing a sexually oriented offense. R.C. 3113.31(A)(1)(a). “Family or household

member” includes a spouse of the respondent and/or a child of the respondent. R.C.

3113.31(A)(3)(a)(i) and (ii).

{¶6} R.C. 3113.31 “allows a court to grant a protection order after a full

hearing ‘to bring about the cessation of domestic violence against the family or

household members.’ ” K.B. v. B.B., 9th Dist. Summit No. 28129, 2017-Ohio-71, ¶ 7,

citing R.C. 3113.31(E)(1). “ ‘The purpose of the civil protection order is not to address

past abuse.’ ” Id., citing Wetterman v. B.C., 9th Dist. Medina No. 12CA0021-M, 2013-

Ohio-57, ¶ 11; accord, e.g., Hallisy v. Hallisy, 11th Dist. Geauga No. 2022-G-0048,

2023-Ohio-2923, ¶ 26. “Rather, protection orders are intended to prevent further

domestic violence.” Id., citing Felton at 41. “As such, ‘even with established past abuse

there must be some competent, credible evidence that there is a present fear of

harm.’ ” Id., citing McElroy v. McElroy, 5th Dist. Guernsey No. 15 CA 27, 2016-Ohio-

5148, ¶ 38. “Nevertheless, ‘[e]vidence of past abuse * * * is relevant and may be an

important factor in determining whether there is a reasonable fear of further harm.’ ”

Id., citing Wetterman at ¶ 12.

{¶7} In her first assignment of error, petitioner first argues that the trial court

erred in declining to find that respondent attempted to cause or recklessly caused

bodily harm against her. Petitioner testified that respondent physically abused her

and described an incident occurring in December 2021 in which respondent allegedly

grabbed her by the arm and threw her back into their apartment when she attempted

to leave during an argument. She admitted photos which purportedly showed the

marks left on her from this incident. She also said that, on multiple occasions,

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respondent would grab her shirt, speak roughly in her face, and grab her by the arms.

Lastly, she said that respondent would bite and pinch her, and prevent her from

leaving the apartment. When asked when these types of events last occurred, she said

very recently and that the events were ongoing.

{¶8} Even assuming this evidence is sufficient to support a finding that

respondent attempted to cause or recklessly caused her bodily harm, the question

before this court is whether there was sufficient evidence in the record to deny finding

an act of domestic violence. Therefore, we must determine whether sufficient evidence

was presented to undermine this evidence and deny finding an act of domestic

violence.

{¶9} In his testimony, respondent denied ever biting petitioner, ever

grabbing petitioner’s arm and throwing her back in the apartment, refusing to permit

petitioner to leave, or ever grabbing petitioner “with force.” When he was asked if he

allowed petitioner to freely leave the apartment, he said, “Of course.” He testified

regarding alleged trips petitioner took to Florida and visits from petitioner’s parents.

{¶10} This evidence, if credible, essentially negates petitioner’s testimony and

would therefore be sufficient to deny finding an act of domestic violence against

petitioner, even assuming petitioner’s testimony would be sufficient to support a

finding that respondent attempted to cause or recklessly caused her bodily harm,

absent controverting testimony.

{¶11} Further, petitioner acknowledged during cross-examination that she

previously admitted to falsifying a photograph of a black eye, which calls into question

the credibility of the photograph submitted in support of her testimony. Finally, when

the court itself questioned the parties at the conclusion of the respondent’s case, the

court attempted to clarify details of when the alleged incidents that led to the filing of

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the petition occurred and petitioner could not testify as to what day the events

occurred or whether the events occurred on the same or different days.

{¶12} Based on the evidence presented, the magistrate was required to make

a quintessential credibility determination as the evidence was basically one party’s

word against the other. Because the magistrate, as the trier of fact, was in the best

position to judge the credibility of the witnesses and determine the weight to be given

to the testimony, we cannot say that the trial court erred in finding the evidence

sufficient to deny a finding that respondent committed an act of domestic violence

against the petitioner by attempting to cause or recklessly causing her bodily harm as

sufficient evidence was put forth to negate petitioner’s testimony, if found to be

credible, and it is clear from the trial court’s decision that the issue of credibility was

resolved in favor of the respondent.

{¶13} Petitioner points to Felton, 79 Ohio St.3d 34, 679 N.E.2d 672, and

argues that the trial court’s denial of respondent’s motion for a directed verdict at the

close of petitioner’s case was essentially a finding that petitioner was credible, which

prevented the trial court’s ultimate denial of the DVCPO. In Felton, the Ohio Supreme

Court reversed the trial court’s denial of a DVCPO where the trial court initially denied

the respondent’s request for a directed verdict at the close of the petitioner’s case but

then ultimately denied the petitioner’s request for a DVCPO, despite no controverting

evidence being presented by the respondent in the interim. Id. at 36, 42-44. The

instant case is not analogous to Felton as, here, controverting evidence was presented

by the respondent after his motion for a directed verdict and the court itself questioned

the parties after the court denied the motion for a directed verdict. Thus, additional

evidence was presented to further assess the credibility of the parties and the weight

to be given to the evidence after the court denied the request for a directed verdict.

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Petitioner does not dispute that this case is different from Felton in this regard, but

instead posits that the respondent’s testimony was not credible, making Felton

applicable. However, the trier of fact was in the best position to judge the credibility

of the witnesses and the weight of the evidence. E.g., Durastanti, 1st Dist. Hamilton

No. C-190655, 2020-Ohio-4687, at ¶ 21. The court’s denial of the motion for a directed

verdict in this case did not prevent the court from proceeding to assess the credibility

of the parties and weigh the evidence at final judgment and rule in favor of respondent

after additional evidence was presented.

{¶14} Petitioner next argues that the trial court erred in declining to find that

respondent committed a sexually oriented offense against her. “Sexually oriented

offense” has the same meaning as in R.C. 2950.01. R.C. 3113.31(A)(6). Relevant for

our purposes here, a “sexually oriented offense” includes a violation of R.C.

2905.03(B). R.C. 2950.01(A)(10). Under R.C. 2905.03(B), “No person, without

privilege to do so and with a sexual motivation, shall knowingly restrain another of the

other person’s liberty.”

{¶15} Petitioner testified that respondent got on top of her with all his weight,

rubbed her thighs, and attempted to kiss her and continued to do so, even after she

attempted to push him off. While petitioner’s testimony—if found to be credible—

could support a reasonable inference that respondent was using his weight to restrain

her liberty with a sexual motivation, respondent denied in his testimony that he ever

attempted to force himself on petitioner. Because conflicting evidence was presented

and the magistrate was in the best position to weigh the evidence and determine

credibility, we cannot say that the trial court erred in finding that sufficient evidence

existed for the magistrate to deny a finding that respondent committed a sexually

oriented offence against petitioner.

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{¶16} In her second assignment of error, petitioner argues that the trial court

erred in declining to find that respondent recklessly caused bodily harm against K.S.

and committed an act which would result in K.S. being an abused child under R.C.

2151.031. An “abused child” under R.C. 2151.031 includes any child who (1) is

endangered as defined in R.C. 2919.22, (2) exhibits evidence of any physical or mental

injury, inflicted other than by accidental means, and/or (3) because of acts of the

child’s parents, suffers physical or mental injury that harms or threatens to harm the

child’s health or welfare. R.C. 2151.031(D) and (E).

{¶17} Petitioner testified that respondent pinched K.S. to the point that he

could not breath. She also testified that respondent told her that he bit K.S. However,

in his testimony, respondent denied ever pinching or biting K.S., or ever telling

petitioner that he bit K.S. Because conflicting evidence was presented and the

magistrate was in the best position to weigh the evidence and determine credibility,

we cannot say that the trial court erred in finding that sufficient evidence existed for

the magistrate to deny a finding that respondent committed an act of domestic

violence against K.S.

III. Conclusion

{¶18} For all the foregoing reasons, we overrule the assignments of error and

affirm the judgment of the trial court.

Judgment affirmed.

BERGERON and KINSLEY, JJ., concur.

Please note:

The court has recorded its own entry this date.