Preston v. Shutway

2013 Ohio 185
CourtOhio Court of Appeals
DecidedJanuary 25, 2013
Docket2012 CA 24
StatusPublished
Cited by15 cases

This text of 2013 Ohio 185 (Preston v. Shutway) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Preston v. Shutway, 2013 Ohio 185 (Ohio Ct. App. 2013).

Opinion

[Cite as Preston v. Shutway, 2013-Ohio-185.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

EDWARD L. PRESTON :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 24

v. : T.C. NO. 12CVSDV47

JOHN SHUTWAY : (Civil appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 25th day of January , 2013.

EDWARD L. PRESTON, 1111Scioto Street, Urbana, Ohio 43078 Plaintiff-Appellee

JOHN SHUTWAY, 573 E. Church Street, Urbana, Ohio 43078 Defendant-Appellant

FROELICH, J.

{¶ 1} John Shutway, pro se, appeals from a judgment of the Champaign

County Court of Common Pleas, which denied Edward Preston’s petition for a civil stalking 2

protection order, but fined Shutway $250 for failing to comply with a court order during the

evidentiary hearing on the petition. For the following reasons, the trial court’s summary

imposition of the $250 fine against Shutway for contempt of court is reversed. In all other

respects, the trial court’s judgment will be affirmed.

I.

{¶ 2} The record reflects that Edward Preston and his wife, Karen, were involved

in divorce proceedings, which were becoming acrimonious. On several occasions, John

Shutway accompanied Karen Preston when she went to the marital property and, at Mrs.

Preston’s invitation, Shutway was present at a birthday party at Karen Preston’s house for

one of the Prestons’ children.

{¶ 3} On May 16, Edward Preston filed a petition for a civil stalking protection

order against Shutway. He alleged that, on May 15, Shutway took photographs with a cell

phone from Karen Preston’s van at the Prestons’ marital property and continued to

photograph events as Karen Preston and Shutway followed Preston from the marital property

to Preston’s attorney’s office. The same day (May 16), after an ex parte hearing, the trial

court issued a temporary civil stalking protection order against Shutway.1

{¶ 4} A full hearing on the petition was held on May 30, 2012. Preston testified

on his own behalf. He described the incident on May 15, as well as Shutway’s alleged

behavior during the May 18 birthday party and allegations that Shutway made to the police

after the birthday party that Preston had broken into Shutway’s house and stolen Shutway’s

1 In a separate action, Preston also sought a civil stalking protection order against his wife. That action is not before us. 3

iPhone. Preston further testified that he believed Shutway had hidden the iPhone in

Preston’s truck in order to track Preston’s whereabouts. Preston presented, as Exhibit 1, a

photograph of Shutway and Karen Preston allegedly “sneaking through the back yard of the

Lattimers [neighbors] over to the marital property” on May 19.

{¶ 5} Shutway also testified and provided an alternative version of what had

occurred on May 15. He stated that he went with Karen Preston to the marital property for

Mrs. Preston’s protection. While there, the Prestons argued about Edward Preston’s having

changed the lock to the marital property; Karen Preston demanded a key and certain items

from the property. Shutway testified that he and Karen Preston followed Preston to

Preston’s attorney’s office because the Prestons agreed to go there to discuss their dispute.

Shutway further testified that Preston came to the birthday party at Karen Preston’s home

without being invited, and Preston called the police to report Shutway’s and Karen Preston’s

presence at the marital property. Shutway presented two photographs, Exhibits A and B.

Exhibit A allegedly demonstrated “where Mr. Preston parked his vehicle obstructing the exit

on the [marital] property” on May 15. Exhibit B “shows Mr. Preston at Mrs. Preston’s

house entering the house and then to the back yard” for the birthday party.2

{¶ 6} At the conclusion of the hearing, Shutway also attempted to offer his cell

phone into evidence as Exhibit C to demonstrate that the phone did not have a camera.

Shutway removed the SIM card (memory chip) from the cell phone and wanted to offer the

2 On January 8, 2013, Shutway filed an affidavit with this Court in which he asserted additional “facts of case 2012CVSDV0047.” In conducting our appellate review, we are limited to the record as it existed at the time the trial court rendered judgment. E.g., Fifth Third Bank v. Fin. S. Office Partners, Ltd., 2d Dist. Montgomery No. 23762, 2010-Ohio-5638. Accordingly, Shutway’s affidavit will not be considered. 4

cell phone without it. The trial court told Shutway to “[p]ut it back in the phone. Put the

whole thing back together and submit it as a piece of evidence.” When Shutway refused to

submit the SIM card with the cell phone, the following exchange occurred:

THE COURT: Sir, put it back in the phone.

MR. SHUTWAY: SIM card is mine.

THE COURT: Are you withdrawing the phone as evidence?

MR. SHUTWAY: No.

THE COURT: Then I need the whole phone, sir.

THE COURT: Sir, do you want to be found in contempt of court?

MR. SHUTWAY: Your Honor, the statute says that I may enter any piece of

evidence I wish with or without a SIM card.

THE COURT: Oh, that’s in the evidence rules that you can take the battery

out of a phone? Do you want to tell me that? Do you want to tell me the

law?

MR. SHUTWAY: I may submit anything I wish for evidence.

THE COURT: Put the whole thing together or don’t submit it at all. That’s

your choice.

MR. SHUTWAY: This is what I wish to submit, Your Honor. Do you

refuse it?

THE COURT: I’m not allowing it as evidence if you don’t give me the whole

thing. Your choice. [Cite as Preston v. Shutway, 2013-Ohio-185.] MR. SHUTWAY: This is what I wish to submit, Your Honor. Do you

accept it or not?

THE COURT: You have a question to answer, Mr. Shutway.

MR. SHUTWAY: This is what I wish to submit, Your Honor. That is all.

THE COURT: Do you want to submit the phone as evidence?

MR. SHUTWAY: This is my phone (unintelligible).

THE COURT: That’s not your phone. There’s no SIM card in it.

MR. SHUTWAY: It has a serial number.

THE COURT: I’m sorry?

MR. SHUTWAY: It has a serial number on it. It is my phone. And this

serial number is what I wish to submit.

THE COURT: Put the SIM card in or I’m fining you $250.

MR. SHUTWAY: Fine.

THE COURT: You’re fined –

MR. SHUTWAY: Thank you.

THE COURT: – and the exhibit, the Defense Exhibit C is not admitted into

evidence.

{¶ 7} At the conclusion of the hearing, the court took the matter under advisement

and indicated that it would provide a written decision. On June 11, prior to a written

decision on the petition, Shutway filed a motion for the trial judge to recuse herself from the

case and all other cases involving Preston. He argued that the trial judge had a prior

working relationship with Preston, who previously held the position of Clerk of Courts for

the Champaign County Court of Common Pleas, and that the audio CD of the May 30 6

hearing demonstrated that the judge was biased against Shutway.

{¶ 8} The following day, June 12, the trial court issued a written judgment,

concluding that there was “insufficient evidence for the issuance of Civil Stalking Protection

Order.” The court vacated its prior orders and dismissed the petition without prejudice.

The judgment further stated, in part, “Respondent’s Exhibit C was not admitted into

evidence.

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