T.O. v. T.G.

2024 Ohio 4510

• Court: Ohio Court of Appeals
• Decided: September 13, 2024
• Docket: 30058
• Status: Published

Opinion

[Cite as T.O. v. T.G., 2024-Ohio-4510.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

T.O. : : Appellant : C.A. No. 30058 : v. : Trial Court Case No. 2023 CV 03283 : T.G. : (Civil Appeal from Common Pleas : Court) Appellee : :

...........

OPINION

Rendered on September 13, 2024

CATHERINE A. DEMPSEY, Attorney for Appellant

JOSHUA ADAM ENGEL, Attorney for Appellee

.............

LEWIS, J.

{¶ 1} Petitioner-Appellant T.O. appeals from an order of the Montgomery County

Court of Common Pleas, which dissolved a sexually oriented offense civil protection order -2-

after sustaining the objections of Respondent-Appellee T.G.1 For the reasons explained

below, we conclude that the trial court incorrectly added an “immediate and present

danger” requirement when ruling on Respondent’s objections. Therefore, we will

reverse the judgment of the trial court and remand the cause for the trial court to apply

the correct legal standard in ruling on Respondent’s objections.

I. Facts and Course of Proceedings

{¶ 2} On June 23, 2023, T.O. filed a petition for a sexually oriented offense civil

protection order pursuant to R.C. 2903.214. As part of her petition, T.O. requested an

“ex parte (emergency) protection order.” She further requested that a full hearing trial

be scheduled, regardless of whether the ex parte protection order was granted or denied.

At the conclusion of the ex parte hearing, the magistrate overruled the request for an ex

parte civil protection order due to a lack of evidence showing a risk of imminent physical

harm. A full hearing on the petition for a protection order was then scheduled.

A. The Testimony at the Full Hearing

{¶ 3} On August 11, 2023, the full hearing on the request for a protection order

was held before the same magistrate who denied the ex parte request. Petitioner

testified first at the hearing and provided the following testimony. August 11, 2023 Tr. 4-

78. Petitioner is from Canada and began attending classes at the University of Dayton

Law School in May 2022. She was expected to graduate in May 2024 as part of an

1 We will refer to the parties throughout this opinion by either their initials or their status

as Petitioner or Respondent. -3-

accelerated two-year program. Petitioner was in a small class cohort with Respondent

and about 13 other students.

{¶ 4} On Friday, October 28, 2022, Petitioner planned to attend a Halloween party

at Brixx Ice Company, a restaurant in Dayton. The outing at Brixx was sponsored by the

law school’s student bar association. Respondent offered to give Petitioner a ride to the

party. He picked her up from her apartment and then they picked up another member of

their class cohort. All three of them went to the apartment of another member of their

class cohort. Petitioner did not eat anything before going to Brixx but did have one shot

of alcohol and one or two seltzer drinks that contained alcohol. She and Respondent

received rides with different people from their classmate’s house to Brixx.

{¶ 5} As far as Petitioner could remember, she only had one drink at Brixx, a blue

drink that Respondent bought for her. The next thing she vaguely remembered was

being in pain and in her apartment. When asked about what she recalled about that

time, she testified as follows:

So I have a number of memories that I don’t know chronologically

what one that I think occurred in, but I was jolted into having the memory by

sensations of pain. So in a various order, I remember being hit in the face

at least twice. I remember being choked and not being able to breathe

while I was on my back. I remember [Respondent] penetrating my vagina

and my anus with both his fingers and his penis. And I remember him

holding my head down and forcing me to give him oral. And I was choking.

I couldn’t breathe. -4-

August 11, 2023 Tr. 12. Petitioner also remembered falling off her bed but did not

remember getting off the floor. She believed she woke up about 9:30 or 10:00 the next

morning, and her brain felt “foggy” at that time. Petitioner described the feeling as

different from a hangover. She went into her bathroom and took a Tylenol.

{¶ 6} When Petitioner returned to her bed, Respondent forced her to have vaginal

and oral sex. Petitioner testified that she recalled saying no to him at least three times

that morning while he was forcing her to have sex. She tried to resist but was unable to

physically prevent Respondent from raping her.

{¶ 7} After Respondent left her apartment, Petitioner struggled to figure out what

had happened. She took a shower, was in a lot of pain, and noticed bruises on her body.

She sent a couple of text messages to Respondent about whether he had been tested

for sexually transmitted diseases and whether he knew where her missing earring was.

{¶ 8} During that day, Petitioner called her sister, her boyfriend, and her mother.

Petitioner explained to her boyfriend that she woke up in the bed of her apartment next

to Respondent and did not remember how he had gotten there. She and her boyfriend

researched how to report the sexual violence that had occurred. Ultimately, she

submitted an online report through a University of Dayton website.

{¶ 9} Petitioner went to Miami Valley Hospital the next day (Sunday) and

underwent a sexual assault exam, which included a rape kit. She spoke with a police

detective that day and the following Tuesday. Petitioner submitted pictures at the full

hearing that she had taken of herself on Sunday night after she returned home from the

hospital. The pictures showed a number of bruises on her body. -5-

{¶ 10} T.O. filed her petition for a civil protection order on June 23, 2023. She

explained that she was unaware of the civil protection order option until speaking with a

prosecutor during a federal court externship. She filed the petition shortly after

discovering she could do so. T.O. decided to file her petition because Respondent had

violated the University of Dayton’s no contact order a number of times. Further, she

testified as follows regarding her purpose for seeking a protection order:

I want to feel safe. [Respondent] knows where I live. We go to the

same school. I don’t feel safe on campus. I have panic attacks every time

I go on campus. I don’t feel safe going out at any point. I know he owns

firearms. I know that he could find me at any point, and I’m concerned that

he could do this to me again. He’s shown no remorse or concern. He’s -

- I mean, he has threatened me to the investigators and the school

investigation that make me concerned that he’s going to follow me in my

career and ruin my chance for employment. And he has said to them that

he was going to ruin my life. And I’m concerned that he is going to hurt me

and make my life more of a hell.

August 11, 2023 Tr. 35-36.

{¶ 11} Petitioner conceded on cross-examination that she did not have many vivid

memories of what had happened after she consumed the blue drink at Brixx. However,

she recalled “snippets” or flashes. She did not recall getting a ride from Brixx or to her

house or getting her keys out to enter her apartment. But she did have flashes of

memory from the pain caused by Respondent and the two times she recalled him forcing -6-

her to have sex.

{¶ 12} G.W. testified next at the hearing and provided the following testimony. Id.

at 79-90. She met Respondent through a friend who is a member of Petitioner and

Respondent’s small class cohort. On the evening of October 28, 2022, G.W.’s group of

friends met the law school group of friends at Flanagan’s. G.W. testified that Petitioner

seemed “indisposed because of the alcohol content.” Id. at 84-85. G.W. stated that

Respondent looked uncomfortable when Petitioner was dancing near him. But she later

noticed that Respondent and Petitioner were kissing and touching each other near the

time everyone was getting ready to leave Flanagan’s. G.W. did not have any concerns

about consent when she saw them kissing. She also noticed that Petitioner had at least

one mixed drink while at Flanagan’s.

{¶ 13} Respondent was the last witness to testify and provided the following

testimony. Id. at 91-122. He started law school in May 2022 under an accelerated two-

year program. He met Petitioner through law school classes. He first talked to her in

class and then began texting her in June 2022. Although he had never gone out with

her individually, he had accompanied her and a group of law school friends to a baseball

game and a few bars afterward. Petitioner had asked him to join her and a group of

friends on another night, but he declined.

{¶ 14} Originally, Respondent had not planned to go to the Halloween party at

Brixx. Rather, his plan was to go home to New York to visit family. He later decided to

go to the party and stay in Dayton to prepare for a class he had on Monday. He offered

a ride to Petitioner and another member of their class cohort. Respondent drove a four- -7-

door Tacoma truck. There was a suitcase and backpack in the backseat that he had

packed for his New York trip. Respondent picked up Petitioner, their classmate, and

some pizza and drove them to an apartment where another one of their law school

classmates was hosting a gathering before the event at Brixx. Everyone drank some

alcohol at that apartment.

{¶ 15} Respondent recalled being at Brixx at 8:30 p.m., heading to Ned Pepper’s

at 10:45 p.m., and going to Flanagan’s at 11:45 p.m. He bought Petitioner a blue drink

while they were at Brixx. According to Respondent, it was not a strong alcoholic drink.

While at Ned Pepper’s, Petitioner bit his ear and whispered to him that they should leave

together. They kissed when they believed they were out of sight of their classmates.

They took an Uber or Lyft to Flanagan’s, where they remained until 2:30 a.m.

{¶ 16} After they left Flanagan’s, Respondent and Petitioner took a Lyft to where

Respondent’s truck was parked. Petitioner suggested that they get into the back of his

truck and have sex. They had vaginal and oral sex in the back of the truck next to

Respondent’s suitcase and backpack. Respondent recalled that they were in the back

of the truck for between 30 and 45 minutes. He then drove them to Petitioner’s

apartment.

{¶ 17} Once inside the apartment, they immediately began kissing and went to the

bedroom. They again had vaginal and oral sex. Respondent testified that Petitioner

never told him no, he never choked or hit her, and she did not fall off the bed. They fell

asleep after having sex inside the apartment. When they woke up later that morning,

they had a friendly conversation while lying in bed. Then they had oral and vaginal sex -8-

for a third time. Petitioner asked Respondent if he thought anyone knew they were going

to have sex. She also stated that she did not know how she was going to tell her

boyfriend about this.

{¶ 18} Respondent got dressed and left the apartment to head home. Petitioner

sent him a couple of text messages asking him whether he had found one of her earrings

and whether he had been tested for sexually transmitted diseases. Respondent

considered the latter message a pretty standard question for what he believed was a

“one-night stand.” He had not spoken to Petitioner since he responded to those text

messages.

{¶ 19} On November 7, 2022, Respondent was contacted by a police detective

relating to the night of October 28, 2022. He met with the police detective and also

provided information to the University of Dayton, which was investigating the incident.

Respondent learned in June 2023 that neither the university nor the police department

planned to pursue the matter any further. He described the emotional and financial toll

he had experienced since the night of October 28, 2022. He stated that “it’s not

something I would like to ever do again.”

B. The Decisions of the Magistrate, the Trial Court, and the Visiting Judge

{¶ 20} After the hearing, the magistrate issued an undated written denial of T.O.’s

petition for a civil protection order. The magistrate found that Petitioner had failed to

demonstrate by a preponderance of the evidence that a sexually oriented offense

occurred. Magistrate’s Decision, p. 7. According to the magistrate, Petitioner was not -9-

credible, the majority of her testimony was unbelievable, and the evidence failed to

support her version of the events. Id. at 7-8. The magistrate found that “[e]ven if

Petitioner is to be believed, Ohio case law doesn’t support a finding that a sexual offense

occurred between Petitioner and Respondent.”2 Id. at 9.

{¶ 21} In making her credibility determination, the magistrate relied on the following

reasoning: (1) it was unreasonable for the Petitioner to wait 26 hours to report the alleged

rape solely because she was from Canada and unsure how to report a sexual assault; (2)

Petitioner is from Alberta, Canada, which is “an overall similar society to Dayton, Ohio”;

(3) the magistrate was “unaware of any first-world, modern country that does not have

police investigate crimes”; (4) “using common sense and reasoning, [Petitioner] could

have asked an American friend, googled the inquiry, or called the police in hopes that

they were the correct agency to report a crime”; (5) the Petitioner’s research into how to

report the crime took “at least half a day”; (6) Petitioner’s high grade-point average at law

school meant that rather than not knowing how to report the alleged rape, Petitioner must

have made the story up “after trying to reconcile her consensual actions and her beliefs”;

(7) it was “curious” that Petitioner would think Respondent may have been in possession

of her missing earring if she did not have any recollection of having sex with him in the

back seat of his truck; (8) Petitioner’s confusion over what the word “admitted” meant in

relation to her time at the hospital was unreasonable despite the significant difference

between the healthcare systems in the United States and Canada; (9) the pictures of

2This finding was particularly curious given the fact that Petitioner testified she told Respondent “no” at least three times while he was forcing her to have sex, which generally would constitute the offense of rape, R.C. 2907.02(A)(2). August 11, 2023 Tr. 15. -10-

bruises on Petitioner’s body did not demonstrate a violent sexual assault because they

were blurry and “zoomed in,” the bruises on Petitioner’s breasts seemed consistent with

receiving a “hickey,” and the other bruises looked as though Petitioner “was pinched

repeatedly in the thighs and arm”; and (10) Petitioner did not provide the magistrate with

any record of medical treatment to corroborate her version of events.

{¶ 22} On October 24, 2023, the trial court rejected the magistrate’s decision “in

its entirety.” The trial court granted the civil protection order and attached “Additional

Findings of Fact” to the protection order, finding that Petitioner had been more credible

than Respondent. In particular, the trial court explained, in part:

Upon review of the testimony and the evidence, the Court finds that

Petitioner’s testimony is consistent, credible, and supported by the physical

evidence. While Petitioner’s memory of the events is sparse, she is

consistent in what she does not remember. Her testimony is consistent

with the experience of someone who has become inebriated to the point of

being incapable of consent. From her testimony, it does not appear that

she was capable of forming memories after drinking the blue drink at Brixx,

which would be consistent with an alcohol-induced blackout. Further,

Petitioner testified that she experienced flashes of pain as she was hit in the

face. She has bruising to her nose and cheekbone. She testified that she

remembered not being able to breathe while on her back. She has bruises

to her neck and chest. The Court finds that the significant bruising to

Petitioner’s body is inconsistent with a consensual sexual experience with -11-

someone in control of their body.

On the other hand, the Court finds the Respondent’s testimony is

inconsistent, unsupported by the evidence, and belied by his own witness.

While claiming that he was too drunk to remember going into Petitioner’s

apartment, he remembers other statements and events with exacting detail.

October 24, 2023 Additional Findings of Fact, p. 9. The trial court noted that G.W. had

testified that she had seen Respondent intoxicated before and that he did not appear too

intoxicated that evening. At the same time, G.W. testified that it seemed like Petitioner

was indisposed because of alcohol content. The court continued, “most significantly,

Respondent’s testimony provides no explanation or accounting for the significant bruising

on Petitioner’s body.” Id. at 10.

{¶ 23} The trial court concluded that:

[A] preponderance of the credible evidence presented in this case

establishes that Respondent has committed a sexually oriented offense

against Petitioner. Specifically, the evidence demonstrates that

Respondent engaged in sexual conduct with the Petitioner when her ability

to resist or consent was substantially impaired because of a mental or

physical condition and that Respondent knew or had reason to believe that

Petitioner’s ability to resist or consent is substantially impaired because of

her mental or physical condition.

Id. at 10-11.

{¶ 24} The civil protection order was made effective until June 23, 2026. As part -12-

of the civil protection order, the trial court marked the box that stated, “The Court finds by

a preponderance of the evidence that 1) Petitioner . . . [has] been a victim of a sexually

oriented offense as defined in R.C. 2950.01, committed by Respondent; and 2) the

following orders are equitable, fair, and necessary to protect the persons named in this

Order from sexually oriented offenses.”

{¶ 25} On November 7, 2023, Respondent filed a notice of appeal from the trial

court’s order and filed objections to the order.3 Respondent contended in his objections

that (1) the trial court improperly drew conclusions about Petitioner’s testimony based on

expert evidence not in the record; (2) there was not sufficient credible evidence to support

the issuance of a protection order; (3) the court improperly rejected the credibility

determinations made by the magistrate judge; (4) sufficient evidence existed to support

the magistrate’s denial of the petition; and (5) the court’s restriction on firearm

possessions unduly burdened Respondent’s Second Amendment rights and lacked

sufficient nexus to the facts in the record. Respondent also filed a copy of the transcripts

from both the ex parte and the full hearings before the magistrate and a motion to

supplement the record with a copy of the magistrate’s decision denying the petition for a

protection order. It does not appear that the trial court ever issued a ruling on this

particular motion to supplement.

{¶ 26} Petitioner filed a memorandum in opposition to Respondent’s objections.

The trial court judge recused herself while the objections were pending “in an abundance

of caution in deference to the rights of the Defendant after rejecting the Magistrate’s

3 Respondent subsequently voluntarily dismissed his appeal from the October 24, 2023

decision. -13-

Decision and issuing a substantive opinion in this case.” Therefore, a visiting judge was

assigned to the case.

{¶ 27} On January 25, 2024, the visiting judge issued an order that dissolved the

civil protection order. At the beginning of his decision, the visiting judge explained that

he was not reconsidering the findings of fact made by the trial court in its October 24,

2023 decision. He stated:

As an initial matter, the Court accepts the findings of the trial court

as filed October 24, 2023 with regard to weighing of credibility of the

witnesses, including the conclusion that “Respondent’s testimony is

inconsistent, unsupported by the evidence, and belied by his own witness.”

In short, in the current analysis, there is no dispute that sexual conduct

occurred between the parties, that the conduct was not consensual and that

Petitioner was physically injured. These findings are not re-considered.

Decision (Jan. 25, 2024), p. 3-4.

{¶ 28} However, according to the visiting judge, the necessary elements for a civil

protection order include “proof of conduct which demonstrates an ‘immediate and present’

danger that Respondent will cause physical harm or mental anguish,” and Petitioner failed

to present such evidence. Id. at 7. Therefore, the visiting judge found Respondent’s

second and fourth objections dispositive and dissolved the civil protection order. He did

not rule on the other objections. Petitioner filed a timely notice of appeal from the

January 25, 2024 decision. -14-

II. The Magistrate’s Decision and the Standard of Review

{¶ 29} Before we resolve the assignments of error before us, we believe it is

necessary to address the fact that the magistrate’s decision was not filed and served on

the parties until we ordered it be done on appeal. While this fact ultimately will not affect

our resolution of the assignments of error in this particular appeal, we believe it is

important to provide some guidance as to what should be done with a magistrate’s

decision in a civil protection order case.

{¶ 30} On November 7, 2023, Respondent filed a motion in the trial court to

supplement the record with a copy of the magistrate’s decision. The trial court did not

rule on this particular motion, most likely because it coincided with the filing of an appeal

that ultimately was voluntarily dismissed. While the current appeal was pending,

however, Respondent filed a second motion to supplement the record in the trial court

pursuant to App.R. 9(E). Petitioner opposed the motion. On June 3, 2024, the trial

court4 issued an entry denying Respondent’s motion to supplement the record because

the magistrate’s decision was not “relevant on appeal because it was rejected by the trial

court in its entirety, and was never made a part of the Court’s record.” The trial court

noted that the magistrate’s decision was rejected because “there was an error of law or

other defect evident on the face of the order.” Id. at 1-2.

{¶ 31} On June 14, 2024, we ordered the clerk of courts to supplement the record

with the magistrate’s decision. On July 11, 2024, the trial court issued an entry filing the

4 On May 3, 2024, the Ohio Supreme Court issued an “Entry of Rescission Certificate of

Assignment,” which withdrew the visiting judge’s assignment to this case. Since that date, the original judge assigned to the case has presided over the case despite previously recusing herself from ruling on the objections to her October 24, 2023 decision. -15-

magistrate’s decision under seal. The entry stated, in pertinent part: “It is unclear to this

Court if the Court of Appeals is aware of this Court’s Decision filed herein on June 3,

2024, holding that the Magistrate’s Decision is not properly part of the record on appeal

because it was never adopted by this Court.” The trial court ordered the magistrate’s

decision to be sealed “and opened only by a Court of appropriate authority.” The clerk

of courts then filed the magistrate’s decision under seal.

{¶ 32} On July 23, 2024, this Court issued an order to allow the parties to this

appeal access to the magistrate’s decision. We also allowed the parties until August 14,

2024, to file supplemental briefing addressing what impact, if any, the magistrate’s

decision should have on the issues raised in the current appeal. The parties have filed

their respective supplemental briefs.

A. What Happens to the Magistrate’s Decision After It Is Issued

{¶ 33} Civ.R. 53 is the primary mechanism for referring cases to magistrates. On

June 1, 2012, Civ.R. 65.1 became effective. Civ.R. 65.1 was adopted “to provide a set

of provisions uniquely applicable to [special statutory proceedings established by R.C.

3113.31, R.C. 2151.34 and R.C. 2903.214] because application of the existing rules,

particularly with respect to service, discovery, and reference to magistrates, interferes

with the statutory process and is inconsistent with its purpose.” M.D. v. M.D., 2018-Ohio-

4218, ¶ 47 (8th Dist.), quoting 2012 Staff Note, Civ.R. 65.1.

{¶ 34} Protection orders are now governed by Civ.R. 65.1, including domestic

violence civil protection orders, civil stalking protection orders, and sexually oriented -16-

offense civil protection orders. Civ.R. 65.1(A). Importantly, Civ.R. 65.1 states that

certain parts of the civil protection order process are not subject to the requirements of

Civ.R. 53, which governs proceedings in matters referred to magistrates. Technically,

the written decision issued by a magistrate in a proceeding covered by Civ.R. 65.1 is not

considered a “magistrate’s decision” in the same sense as a decision issued by a

magistrate in a proceeding covered by Civ.R. 53.

{¶ 35} A magistrate’s decision to grant a protection order after a full hearing is not

effective unless adopted by the court. Civ.R. 65.1(F)(3)(c)(i). See also Civ.R.

65.1(F)(3)(c)(v) (court’s adoption is effective when signed by the court and filed with the

clerk). The court may adopt the magistrate’s decision granting or denying the full-

hearing protection order “upon review of the order and a determination that there is no

error or law or other defect evident on the face of the order.” Civ.R. 65.1(F)(3)(c)(ii).

This review necessarily involves a review of the decision issued by the magistrate after

the full hearing.

{¶ 36} In Insa v. Insa, 2016-Ohio-7425, ¶ 27 (2d Dist.), we pointed out further

differences between Civ.R. 53 and Civ.R. 65.1:

Civ.R. 65.1, unlike Civ.R. 53, does not provide for a request for

findings of fact and conclusions of law (see Civ.R. 53(D)(3)(a)(ii)),

suggesting a more streamlined proceeding for protection orders. Under

Civ.R. 65.1 the trial court may adopt the magistrate’s denial or grant of a

protection order “upon review of the order and a determination that there is

no error of law or other defect evident on the face of the order.” Civ.R. 53 -17-

allows the court to “hear a previously-referred matter, take additional

evidence, or return a matter to a magistrate,” Civ.R. 53(D)(4)(b), and it

requires the trial court to undertake “an independent review as to the

objected matters.” Civ.R. 53(D)(4)(d). Each of those options is absent

from Civ.R. 65.1, which indicates that court action includes only “adoption,

modification, or rejection,” of a magistrate’s decision, Civ.R.

65.1(F)(3)(c)(iv), and no standard of review is designated.5

{¶ 37} No provision of Civ.R. 65.1 precludes a magistrate’s decision from being

filed or served on the parties. The plain language of Civ.R. 65.1 only requires the trial

court’s adoption, modification, or rejection of the magistrate’s decision to be filed with the

clerk. Civ.R. 65.1(F)(3)(c)(v). But the plain language of Civ.R. 65.1 also requires the

trial court to review a magistrate’s decision prior to adopting, modifying, or rejecting the

decision. Civ.R. 65.1(F)(3)(c)(ii) and (iii). We believe it is axiomatic that any documents

the trial court reviews as part of its duty under Civ.R. 65.1 to adopt, modify, or reject the

magistrate’s decision, including the decision itself, should be made a part of the record.

We acknowledge that a magistrate’s decision does not carry any legal effect once a trial

court rejects it pursuant to Civ.R. 65.1. We are troubled, however, by the idea that a

magistrate’s decision should be made a part of the record and served on the parties when

it is adopted by the trial court but should neither be made a part of the record nor served

on the parties when it is rejected by the trial court. In both situations, the trial court had

5 In Insa, we were careful to point out that we were simply stating what the rules contained

and were not determining “whether or not a court may have inherent authority to take additional evidence or return a matter to a magistrate upon objection under Civ.R. 65.1.” Id. at ¶ 27, fn. 3. -18-

a duty to review the magistrate’s decision, and the record should include the document

the trial court reviewed when fulfilling its duties under Civ.R. 65.1.

{¶ 38} We conclude that a magistrate’s decision should be made a part of the

record regardless of whether the trial court ultimately adopts, modifies, or rejects it. Such

a practice ensures that the parties to a proceeding and a reviewing court have access to

all the information the trial court considered when making the crucial decision whether to

adopt, modify, or reject a magistrate’s decision.

B. The Standard of Review in the Present Appeal

{¶ 39} This appeal involves a unique procedural history that involves several

standards of review. The magistrate began the process by determining whether the

Petitioner had proven by a preponderance of the evidence that she was a victim of a

sexually oriented offense. The trial court was then tasked with the duty of reviewing the

magistrate’s decision. The trial court was permitted to adopt the magistrate’s decision

“upon review of the order and a determination that there [was] no error of law or other

defect evident on the face of the order.” Civ.R. 65.1(F)(3)(c)(ii). Or the trial court could

have modified or rejected the magistrate’s decision. Civ.R. 65.1(F)(3)(c)(iii). In this

case, when the trial court issued its decision rejecting the magistrate’s decision, the

parties had an opportunity to file objections to the trial court’s decision. After Respondent

filed objections to the October 24, 2023 order rejecting the magistrate’s denial of the civil

protection order, the trial court then had the duty to determine whether Respondent had

met his “burden of showing that an error of law or other defect [was] evident on the face -19-

of the order, or that the credible evidence of record [was] insufficient to support the

granting or denial of the protection order, or that the magistrate abused the magistrate’s

discretion in including or failing to include specific terms in the protection order.” Civ.R.

65.1(F)(3)(d)(iii). In both this final review by the trial court under Civ.R. 65.1(F)(3)(d)(iii)

and in our review on appeal, it must be determined whether a protection order should

have been granted and, thus, whether the necessary elements were established by a

preponderance of the evidence. That review entails a manifest weight of the evidence

review. Caban v. Ransome, 2009-Ohio-1034, ¶ 7 (7th Dist.).

{¶ 40} The Ohio Supreme Court has explained that the manifest weight of the

evidence standard set forth in State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), a

criminal case, also applies in civil cases. Eastley v. Volkman, 2012-Ohio-2179, ¶ 17-23.

As explained in Thompkins, “ ‘[t]he court, reviewing the entire record, weighs the evidence

and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist. 1983). However, in weighing the evidence, “the court of appeals must always be

mindful of the presumption in favor of the finder of fact.” Eastley at ¶ 21.

{¶ 41} In their supplemental briefing, the parties disagreed whether the

magistrate’s credibility determinations had to be accepted by the trial court when making

the manifest weight determination required by Civ.R. 65.1. Petitioner contends that the

magistrate’s decision was a nullity once the trial court rejected it in its entirety. -20-

Petitioner’s Supplemental Brief, p. 3. According to Petitioner, a magistrate’s decision

rejected under Civ.R. 65.1(F)(3)(c)(iii) should not be given any weight or consideration

and has no authority.

{¶ 42} Respondent contends that the trial court failed to comply with Civ.R. 65.1

by (1) issuing its decision rejecting the magistrate’s decision prior to the filing of any

objections and (2) applying the incorrect standard. According to Respondent, the trial

court should not have rejected the magistrate’s decision because it did not contain an

error of law or a facial defect. Respondent argues that the trial court’s rejection of the

magistrate’s decision on credibility grounds was improper, because the trial court is not

permitted to conduct an independent review of the record when first reviewing the

magistrate’s decision under Civ.R. 65.1. Further, Respondent believes that once he had

filed objections to the trial court’s rejection of the magistrate’s decision, the trial court was

tasked with determining whether insufficient evidence existed to support the magistrate’s

decision. Respondent’s Supplemental Brief, p. 6, citing Durastanti v. Durastanti, 2020-

Ohio-4687, ¶ 16 (1st Dist.). We do not agree.

{¶ 43} Civ.R. 65.1(F)(3)(c)(ii) and (iii) address the trial court’s duty when it receives

a magistrate’s decision. The trial court may adopt the magistrate’s decision “upon review

of the order and a determination that there is no error of law or other defect evident on

the face of the order.” Civ.R. 65.1(F)(3)(c)(ii). This language makes it clear that a trial

court “may” adopt the magistrate’s decision after conducting only a review for an “error of

law or other defect evident on the face of the order.” Id. Or the trial court may modify

or reject the magistrate’s decision. Civ.R. 65.1(F)(3)(c)(iii). Notably, there is no similar -21-

language in Civ.R. 65.1(F)(3)(c)(iii) that implies that the trial court’s modification or

rejection comes after conducting only a review for an error of law or other defect evident

on the face of the order.

{¶ 44} We acknowledge that there is an argument to be made that a full,

independent review of magistrate’s decisions prior to the filing of objections, including any

credibility findings contained therein, is inconsistent with the expedited nature of civil

protection order proceedings contemplated by Civ.R. 65.1. Indeed, the 2012 Staff Note

to Civ.R. 65.1 states that

The statutes provide expedited processes for obtaining an ex parte

protection order and for obtaining a protection order after a full hearing.

When the proceedings are referred to a magistrate, several of the provisions

of Civ.R. 53 are incompatible with those processes, particularly with respect

to temporary magistrate “orders” to regulate the proceedings, independent

review by the court of magistrate “decisions” rendered after hearing, and

the filing and consideration of objections to those magistrate “decisions.”

{¶ 45} Due to the expedited processes in place for obtaining a protection order

after a full hearing and the reality that the transcript from the full hearing often will not be

available at the time the trial court is determining whether to adopt, modify, or reject the

magistrate’s decision, it makes sense that a trial court initially may limit its review of a

magistrate’s decision to whether there is an “error of law or other defect evident on the

face of the order.” Civ.R. 65.1(F)(3)(c)(ii). In the present case, however, it is clear that

the trial court had access to the transcript from the hearing when making its initial -22-

determination to adopt, modify, or reject the magistrate’s decision. And it is clear that

the trial court did not agree with the magistrate’s denial of the request for a civil protection

order. The question becomes whether the trial court was permitted to reject the

magistrate’s credibility findings during its initial review of the magistrate’s decision or

whether it had to ignore what it believed to be blatantly incorrect credibility findings and

adopt the magistrate’s decision, even though it believed the magistrate’s decision was

clearly in error. We believe the former approach makes much more sense than the latter.

{¶ 46} The language in Civ.R. 65.1(F)(3)(c)(ii) is permissive: a trial court “may”

adopt a magistrate’s decision “upon review of the order and a determination that there is

no error of law or other defect evident on the face of the order.” The permissive language

implies that a trial court is not required to adopt a magistrate’s decision just because no

error of law or other defect is evident on the face of the order. Rather, the trial court has

discretion to do so. Further, Civ.R. 65.1(F)(3)(c)(iii) contains permissive, unconditional

language that a trial court “may” modify or reject a magistrate’s decision. Once again, a

trial court typically will not have the transcript before it until a party files objections to its

initial decision adopting, modifying, or rejecting a magistrate’s decision. Therefore, a trial

court often will not be in a position to review the magistrate’s credibility findings at this

initial stage. But that does not mean a trial court must accept a magistrate’s credibility

determinations when a trial court is able to review the parties’ testimony at this initial

stage. It is important to remember that “[a] magistrate's power is specifically intended

only ‘to assist courts of record.’ ” (Emphasis in original.) Dixon v. O’Brien, 2011-Ohio-

3399, ¶ 22 (7th Dist.), quoting Civ.R. 53(C)(1). “[Civ.R. 53] limits a magistrate's authority -23-

because judicial power is vested in ‘a supreme court, courts of appeals, courts of common

pleas and divisions thereof, and such other courts inferior to the supreme court as may

from time to time be established by law.’ ” Id., quoting Ohio Const., art. IV, § 1.

“ ‘Magistrates are neither constitutional nor statutory courts. Magistrates and their

powers are wholly creatures of rules of practice and procedure promulgated by the

Supreme Court.’ ” Yantek v. Coal Builders Ltd., Inc., 2007-Ohio-5126, ¶ 9 (1st Dist.),

quoting Quick v. Kwiatkowski, 2001-Ohio-1498 (2d Dist.).

{¶ 47} Although Civ.R. 65.1 was adopted to help guide the courts and the parties

through expedited civil protection order proceedings, we do not believe this rule was

intended to strip the trial courts of their judicial power and transfer that power to

magistrates. The Eleventh District has pointed out that “[w]hether the magistrate acted

under Civ.R. 53, from which a magistrate derives his or her authority to act, or Civ.R. 65.1,

which expedites the process for obtaining a civil protection order (and necessarily

requires a referral by the trial court to a magistrate to conduct proceedings . . . under

Civ.R. 53(C)(1)(d)); the magistrate's decisions and recommendations were all subject to

the court's ultimate determination.” DeMarco v. Pace, 2019-Ohio-3727, ¶ 60 (11th Dist.),

citing Dixon at ¶ 22-23. Further, in Bressler v. Nunemaker, 2017-Ohio-5804 (5th Dist.),

the Fifth District Court of Appeals concluded that “a trial court need not defer to the

magistrate’s determinations regarding witness credibility.” Id. at ¶ 9, citing In re A.M.,

2010-Ohio-948, ¶ 13 (2d Dist.). The court noted, “[a]lthough the instant case proceeded

under Civ. R. 65.1 rather than Civ. R. 53, nothing in Civ. R. 65.1 suggests that upon

objections, the court is required to defer to the magistrate’s determination of credibility. -24-

Civ. R. 65.1(F)(3)(c)(iii) gives the court the authority to modify or reject the magistrate’s

order, without any restrictions on the court’s ability to reach its own conclusions

concerning credibility.” Id. The Twelfth District similarly has concluded that the trial

court is “not required to give deference and weight to the magistrate’s ruling or its

determination regarding [witness] credibility” in civil protection order cases. Pinkston v.

White, 2019-Ohio-5165, ¶ 32 (12th Dist.). As the Twelfth District noted, the trial court

judge is the ultimate factfinder that “ ‘decides whether the magistrate has properly

determined the factual issues and appropriately applied the law, and where the magistrate

has failed to do so, the trial court must substitute its judgment for that of the magistrate.’ "

Id., quoting Patridge v. Matthews, 2001-Ohio-4207 (12th Dist.).

{¶ 48} As Respondent points out, the First District Court of Appeals has cautioned

that “where the magistrate makes a factual finding based upon the credibility of the

witnesses,” a trial court “must be mindful” that the magistrate is in the best position to

judge the credibility of the witnesses. In re S.D., 2020-Ohio-3379, ¶ 18 (1st Dist.). The

First District further cautioned that “a trial court in a Civ.R. 65.1 proceeding should step

lightly when discounting the magistrate’s credibility determinations—particularly without

additional evidence at its disposal.” Durastanti, 2020-Ohio-4687, at ¶ 22, citing In re S.D.

at ¶ 18. At the same time, however, the First District acknowledged that the trial court is

not required to “reflexively follow the magistrate’s disposition” and that “[t]he trial court is

by no means required, in all circumstances, to give deference to the magistrate’s factual

findings.” Id. at ¶ 21, 23.

{¶ 49} Respondent also cites Dietrich v. Dietrich, 2023-Ohio-4822 (4th Dist.), for -25-

the proposition that Civ.R. 65.1 was not intended to authorize an independent analysis of

the issues in the case by the trial court and “that the trial court’s pre-objection review of a

magistrate judge’s decision is limited to a determination that there is no error of law or

other defect on the face of the order, after which the court may adopt, modify, or reject

the order.” Respondent’s Supplemental Brief, p. 5-6. While Dietrich did note that Civ.R.

65.1 does not require the trial court to take additional evidence or hold a rehearing, the

court concluded the trial court has the discretion to do so if it chooses. Dietrich at ¶ 59.

Dietrich also noted that the trial court has discretion whether or not to rely on the

magistrate’s credibility findings. Id. Therefore, Dietrich does not stand for the

proposition that a trial court cannot reject a magistrate’s credibility findings.

{¶ 50} Finally, when ruling on a party’s objections to its decision to adopt, modify,

or reject a magistrate’s decision, the trial court must determine whether “an error of law

or other defect is evident on the face of the order, or that the credible evidence of record

is insufficient to support the granting or denial of the protection order, or that the

magistrate abused the magistrate’s discretion in including or failing to include specific

terms in the protection order.” Civ.R. 65.1(F)(3)(d)(iii). As noted above, depending on

the nature of the particular objections before it, this may require the trial court to conduct

a manifest weight of the evidence analysis. Such an analysis inherently requires the trial

court to look at the credibility of the witnesses who testified at the full hearing.

{¶ 51} Based on the language of Civ.R. 65.1 and the role of magistrates in general,

we conclude that the trial court ultimately is not bound by the magistrate’s credibility

determinations. Our conclusion is consistent with the long history of allowing trial courts -26-

to conduct their own credibility determinations without deferring to a magistrate. We do

not believe the enactment of Civ.R. 65.1 changed this basic proposition of law.

III. The Visiting Judge Applied an Incorrect Legal Standard

{¶ 52} Petitioner’s first assignment of error states:

THE TRIAL COURT ERRED TO THE PREJUDICE OF

PETITIONER-APPELLANT BY DISMISSING THE PROTECTION ORDER

IN THAT THE TRIAL COURT REQUIRED “IMMEDIATE AND PRESENT

DANGER” TO GRANT A FULL SEXUALLY ORIENTED OFFENSE

PROTECTION ORDER.

{¶ 53} Our analysis of Petitioner’s first assignment of error begins with a review of

R.C. 2903.214(C), which governed her petition for a sexually oriented offense civil

protection order. That section provides:

A person may seek relief under this section for the person . . . by

filing a petition with the court. The petition shall contain or state all of the

following:

(1) An allegation that the respondent is eighteen years of age or older

and . . . committed a sexually oriented offense against the person to be

protected by the protection order, including a description of the nature and

extent of the violation;

(2) If the petitioner seeks relief in the form of electronic monitoring of

the respondent, an allegation that at any time preceding the filing of the -27-

petition the respondent engaged in conduct that would cause a reasonable

person to believe that the health, welfare, or safety of the person to be

protected was at risk, a description of the nature and extent of that conduct,

and an allegation that the respondent presents a continuing danger to the

person to be protected;

(3) A request for relief under this section.

{¶ 54} In her petition, Petitioner requested an ex parte protection order and further

requested a full hearing even if the ex parte protection order was granted or denied. R.C.

2903.214(D)(1) covers requests for ex parte protection orders and provides, in part:

The court, for good cause shown at the ex parte hearing, may enter

any temporary orders, with or without bond, that the court finds necessary

for the safety and protection of the person to be protected by the order.

Immediate and present danger to the person to be protected by the

protection order constitutes good cause for purposes of this section.

Immediate and present danger includes, but is not limited to, situations in

which the respondent has threatened the person to be protected by the

protection order with bodily harm or in which the respondent previously has

been convicted of or pleaded guilty to a violation of section 2903.211 of the

Revised Code or a sexually oriented offense against the person to be

protected by the protection order.

{¶ 55} An ex parte hearing was held before the magistrate on June 23, 2023. At

the conclusion of the hearing, the magistrate denied the request for an ex parte order. -28-

The magistrate explained:

So the purpose of the ex parte order is immanency (sic). Meaning,

that if I don’t grant an ex parte order, you are at risk of being physically

harmed, one way or another. So this incident occurred eight months ago.

And so I don’t find that there is immanency (sic) because he hasn’t spoken

to you since, there hasn’t been another incident. That does not mean that

you’re not entitled or should entitled (sic) to a protection order at another

date. It’s just that for purposes of the ex parte, I don’t find that all the

elements have been met.

June 23, 2023 Tr. 10.

{¶ 56} Following the August 11, 2023 full hearing, the magistrate issued a decision

denying the petition for a civil protection order. Pursuant to Civ.R. 65.1(F)(3)(c)(iii), the

trial court rejected the magistrate’s decision in its entirety and granted the petition for a

civil protection order. Respondent timely filed objections to the trial court’s decision

pursuant to Civ.R. 65.1(F)(3)(d)(i). At that point, Respondent’s burden was to show “that

an error of law or other defect is evident on the face of the order, or that the credible

evidence of record is insufficient to support the granting or denial of the protection order,

or that the magistrate abused the magistrate’s discretion in including or failing to include

specific terms in the protection order.” Civ.R. 65.1(F)(3)(d)(iii). Ultimately, the visiting

judge concluded that the Petitioner (1) had failed to demonstrate an immediate and

present danger that Respondent would cause physical harm or mental anguish and (2)

had failed to present testimony about the current need for a civil protection order. -29-

Therefore, he dissolved the civil protection order.

{¶ 57} Petitioner contends that the visiting judge erred by requiring her to prove

that she was in immediate and present danger in order to obtain a civil protection order

under R.C. 2903.214(C). According to Petitioner, the visiting judge improperly applied a

requirement from R.C. 2903.214(D)(1) that only applied to ex parte civil protection orders,

not those that are entered after a full hearing. Further, Petitioner argues that she proved

that a continuing danger existed, which is all that was required after she had shown that

she was a victim of a sexually oriented offense. Petitioner’s Brief, p. 9, citing Felton v.

Felton, 79 Ohio St.3d 34 (1997).

{¶ 58} Respondent argues that the visiting judge correctly dissolved the protection

order because “there was no evidence of continuing harm, that a future sexual assault or

other may occur, or that Petitioner’s fear of future harm from Respondent was

reasonable.” Respondent’s Brief, p. 11. According to Respondent, “Ohio courts have

affirmed the denial of petitions for civil sexually oriented offense protection orders where

the court found by a preponderance of the evidence that a sexual assault occurred but

there was no threat of future harm.” Id. at 12, citing Tucker v. Uhl, 2023-Ohio-3680 (12th

Dist.); K.B. v. B.B., 2017-Ohio-71 (9th Dist.); M.H. v. J.H., 2015-Ohio-5178 (9th Dist.); and

Wagner v. Holland, 2016-Ohio-5028 (5th Dist.). Respondent also argues that

Petitioner’s claim that she had been sexually assaulted was not supported by the record.

Respondent contends that Petitioner’s “failure to recall specific events, without a denial

that it happened coupled with affirmative evidence from [Respondent] that the event

happened, is insufficient to allow the finder of fact to find that sexually oriented offense -30-

occurred.” Id. at 18. Respondent believes “this Court should not discount the

Magistrate Judge’s credibility determinations — particularly without the Magistrate

Judge’s ability to view the demeanor of the witnesses.” Id. at 17.

{¶ 59} We agree with Petitioner that the visiting judge misinterpreted the language

of R.C. 2903.214. The plain language of R.C. 2903.214 allows for the granting of a

sexually oriented offense civil protection order when a petitioner proves that the

respondent is at least 18 years of age and has committed a sexually oriented offense

against the petitioner. R.C. 2903.214(C)(1). Accord L.L.L. v. Junies, 2014-Ohio-141,

¶ 15 (2d Dist.) (petitioner’s testimony was sufficient to establish that respondent had

committed a sexually oriented offense; therefore, the trial court did not err in granting a

civil protection order under R.C. 2903.214). Despite this, the visiting judge stated that

Petitioner was required to also prove that there was an “immediate and present danger”

from Respondent. The visiting judge cited R.C. 2903.214(D)(1) for the source of this

requirement. He explained:

It would be a strained reading of R.C. 2903.214 to only require proof

of an “immediate and present danger” at the ex parte hearing and then such

proof unnecessary at the second hearing. Similarly, it would be a strained

reading of these statutes to only require proof of an “immediate and present

danger” where there is an allegation of menacing by stalking per R.C.

2903.211 but not for sexually oriented offenses. Such narrow

interpretation could not be found in any appellate authority.

Decision (Jan. 25, 2024), p. 7. We do not agree. -31-

{¶ 60} The plain language of R.C. 2903.214(D)(1) makes the requirement of

“immediate and present danger” applicable only to ex parte civil protection orders. The

General Assembly’s decision to require a heightened burden before granting an ex parte

protection order is logical given that the respondent is not at the ex parte proceeding and

cannot present any evidence or arguments. The added “immediate and present danger”

burden at ex parte proceedings helps to protect the due process rights of absent

respondents. Such due process concerns are lessened greatly at the full hearing

because the respondent is able to present evidence and arguments. Therefore, it is not

a “strained” interpretation of R.C. 2903.214(D)(1) to apply it only to ex parte proceedings.

On the contrary, it would be a much more strained interpretation to apply the “immediate

and present danger” requirement to all civil protection orders when the General Assembly

chose to limit it to ex parte protection orders. We note that similar language as that

contained in R.C. 2903.214(D)(1) is present in other Ohio statutes providing for civil

protection orders in other contexts. Appellate courts addressing this “immediate and

present danger” language in these other statutes have confined it to the granting of ex

parte civil protection orders. See, e.g., J.L. v. M.D., 2011-Ohio-6208, ¶ 50 (11th Dist.)

(R.C. 2151.34(D)(1) “demonstrates that a petitioner must show an ‘immediate and

present danger’ only to obtain the initial ex parte order.”).

{¶ 61} We conclude that the visiting judge erred in requiring Petitioner to prove she

was in immediate and present danger in order to obtain a sexually oriented offense civil

protection order. Therefore, the first assignment of error is sustained. -32-

IV. The Matter Will Be Remanded for the Trial Court to Rule on Respondent’s

Objections

{¶ 62} Petitioner’s second assignment of error states:

PETITIONER-APPELLANT BY DISMISSING THE FULL PROTECTION

ORDER, IN THAT THERE WAS SUFFICIENT CREDIBLE EVIDENCE IN

THE RECORD OF A CONTINUING DANGER TO HER.

A. The Credibility Findings

{¶ 63} Viewing R.C. 2903.214(D)(1) in its proper context, the issue becomes

whether the visiting judge still correctly determined that there was insufficient evidence to

support the granting of a civil protection order under R.C. 2903.214(C). According to

Respondent, we should affirm the visiting judge’s decision because Petitioner failed to

establish that she was a victim of a sexually oriented offense and failed to establish that

there was a threat of future harm. Petitioner responds that both the trial court and the

visiting judge found that she had been a victim of a sexually oriented offense, and the

evidence established that Respondent was a continuing danger to her. Therefore,

Petitioner believes the visiting judge erred by dissolving the civil protection order.

{¶ 64} Typically, the trial court judge who adopted, modified, or rejected a -33-

magistrate’s decision will be the same judge who will rule on any objections under Civ.R.

65.1(F)(3)(d). But the appeal before us is unique in many ways, including the fact that

the trial court judge decided to recuse herself from ruling on Respondent’s objections,

apparently solely because she was the same judge who issued the decision to which

Respondent was objecting. Nothing in Civ.R. 65.1 required such a recusal. After that

recusal occurred, however, it was incumbent on the visiting judge to determine whether

Respondent had met his burden to show that “an error of law or other defect is evident

on the face of the order, or that the credible evidence of record is insufficient to support

the granting . . . of the protection order.” Civ.R. 65.1(F)(3)(d)(iii).

{¶ 65} Respondent argues in his supplemental brief that the trial court, when ruling

on his objections, “needed to find not that sufficient evidence existed to support the grant

of an order, but that insufficient evidence existed to support the Magistrate Judge[’s]

denial of the order.” Respondent’s Supplemental Brief, p. 6, citing Durastanti, 2020-

Ohio-4687, at ¶ 16. While this is a correct statement of what the First District stated in

Durastanti, that case had a different procedural history than the current appeal. In

Durastanti, the trial court initially adopted the magistrate’s denial of the request for a civil

protection order. Therefore, when ruling on objections to its adoption of the magistrate’s

denial, the trial court could not sustain the objections unless it found that there was

insufficient credible evidence of record to support the original denial of the request for a

civil protection order. Civ.R. 65.1(F)(3)(d)(iii). Here, however, the trial court rejected

the magistrate’s decision and granted a civil protection order. Therefore, when filing its

objections, it was Respondent’s burden to show that there was insufficient credible -34-

evidence to support the trial court’s grant of a civil protection order.

{¶ 66} The visiting judge stated that he “accept[ed]” the trial court’s previous

findings regarding witness credibility and that he would not “re-consider” the trial court’s

findings that “sexual conduct occurred between the parties, that the conduct was not

consensual and that Petitioner was physically injured.” Decision (Jan. 25, 2024), p. 3-4.

We generally defer to the trial court on the credibility of witnesses. However, the visiting

judge does not appear to have made his own analysis of the credibility of the witnesses

or to have carefully considered the trial court’s findings of fact regarding witness

credibility. Rather, he appears to have limited his decision to concluding that the trial

court applied the wrong legal standard when it granted the civil protection order.

{¶ 67} On remand, the judge tasked with ruling on the objections will need to apply

the correct legal standard to determine whether Respondent met his burden under Civ.R.

65.1(F)(3)(d)(iii). If he did not, then the objections should be overruled, and the trial

court’s October 24, 2023 granting of the civil protection order should be reinstated. As

part of the analysis on remand, the judge will need to conduct a manifest weight analysis

as required by Civ.R. 65.1. Part of that analysis will require the trial court to consider the

credibility of the witnesses. Thompkins, 78 Ohio St.3d at 387. While the judge assigned

to the case on remand may ultimately agree with the trial court’s previous findings

regarding credibility, the judge should not simply “accept” those findings without doing the

proper manifest weight of the evidence analysis.

B. The Ultimate Issue on Remand -35-

{¶ 68} The final issue for us in this appeal is what Petitioner was required to prove

in order to obtain a sexually oriented offense civil protection order under R.C. 2903.214.

Contrary to Petitioner’s argument, we do not believe she must show a continuing danger

in order to obtain a civil protection order. Notably, the plain language of R.C. 2903.214

does not require Petitioner to prove that there was a “continuing danger” to her or a threat

of future sexually oriented offenses in order to procure a sexually oriented offense civil

protection order. Indeed, the General Assembly showed that it knew how to add a

“continuing danger” requirement to R.C. 2903.214(C) if it had intended to do so. For

example, R.C. 2903.214(D)(3)(b) provides for electronic monitoring of a respondent if a

petitioner shows, among other things, “that the respondent presents a continuing danger

to the person to be protected.” 6 The absence of a similar “continuing danger”

requirement in R.C. 2903.214(C) is telling.

{¶ 69} Further, our precedent has not required that a petitioner prove a continuing

danger element. For example, in Junies, 2014-Ohio-141 (2d Dist.), the trial court

credited the testimony of petitioner, who testified that the respondent “began to grope and

fondle her, ultimately pulling down her pants and underwear despite her protests. Even

after she repeatedly refused his sexual advances and asked him to stop, [respondent]

forced himself upon [petitioner] and had sexual intercourse with her.” Id. at ¶ 15. We

agreed with the trial court that the petitioner’s testimony was sufficient to establish by a

preponderance of the evidence that the respondent had committed a sexually oriented

offense and accordingly, the trial court properly granted the petition for a sexually oriented

6 Petitioner did not request electronic monitoring in this case and the trial court did not

order such monitoring. -36-

offense civil protection order. Id. We neither mentioned nor required that a petitioner

prove a continuing danger or risk of future sexually oriented offenses.

{¶ 70} The plain language of R.C. 2903.214(C) does not require Petitioner to prove

anything other than that Respondent committed a sexually oriented offense against her

and that the Respondent was at least 18 years old. We are understandably hesitant to

impose additional requirements on Petitioner when the General Assembly chose not to

do so. Further, we do not believe the cases cited by Respondent and Petitioner require

us to impose additional requirements on petitioners seeking a sexually oriented offense

civil protection order pursuant to R.C. 2903.214(C).

{¶ 71} Petitioner cites Felton v. Felton, 79 Ohio St.3d 34 (1997), and In re E.P.,

2011-Ohio-5829 (8th Dist.), for the proposition that a petitioner must also show “a

continuing danger to the petitioner.” We do not believe those decisions impose a

continuing danger requirement on petitioners seeking a sexually oriented offense civil

protection order under R.C. 2903.214(C).

{¶ 72} In Felton, the Ohio Supreme Court was tasked solely with determining the

appropriate burden of proof to apply to petitioners seeking a civil protection order under

Ohio’s civil domestic violence statute, R.C. 3113.31. The Court held that “[w]hen

granting a protection order, the trial court must find that petitioner has shown by a

preponderance of the evidence that petitioner or petitioner’s family or household

members are in danger of domestic violence.” Felton at paragraph two of the syllabus,

citing R.C. 3113.31(D). That holding in Felton led the Eighth District Court of Appeals to

state that a juvenile seeking a protection order under R.C. 2151.34, which is similar to -37-

R.C. 3113.31, must show danger of future harm. In re E.P. at ¶ 28-29. Similarly,

Petitioner and Respondent have concentrated on this “danger” language in Felton to

contend that Petitioner must show some evidence that there is a danger of future harm

before the trial court may issue a sexually oriented offense civil protection order.

{¶ 73} We do not believe the Felton holding, which involved a domestic violence

protection order under R.C. 3113.31, controls the present controversy involving a sexually

oriented offense civil protection order issued pursuant to R.C. 2903.214(C). In Felton,

the Court was faced with a situation where the respondent was accused of placing

petitioner “by the threat of force in fear of imminent serious physical harm.” Felton at 43.

Further, the domestic violence statute, unlike R.C. 2903.214, states that a court may grant

any protection order “to bring about a cessation of domestic violence.” R.C.

3113.31(E)(1). Therefore, it made sense for the Felton court to state that the petitioner

needed to prove that she was in danger of domestic violence. R.C. 2903.214, however,

allows a civil protection order to be issued based solely on the fact that a respondent who

is at least 18 years old committed a sexually oriented offense.

{¶ 74} Respondent disagrees, citing a number of cases in support of his argument

that more than the commission of a sexually oriented offense is required to issue a civil

protection order under R.C. 2903.214. According to Respondent, “Ohio courts have

affirmed the denial of petitions for civil sexually oriented offense protection orders where

the court found by a preponderance of the evidence that a sexual assault occurred but

there was no threat of future harm.” Respondent’s Brief, p. 12, citing Tucker, 2023-Ohio-

3680 (12th Dist.); K.B., 2017-Ohio-71 (9th Dist.); M.H., 2015-Ohio-5178 (9th Dist.); and -38-

Wagner, 2016-Ohio-5028 (5th Dist.). We are not persuaded by Respondent’s argument

or the authority he cites in support of his argument.

{¶ 75} In Tucker, the petitioner was a senior at Miami University in Oxford, Ohio,

and the respondent was employed as a part-time yoga instructor at the Miami University

campus fitness center. The petitioner and respondent had neither seen nor encountered

each other before exchanging messages on social media apps Grindr and Snapchat.

Tucker at ¶ 4. They decided to meet in person. As a result of what happened at that

meeting, the petitioner sought a civil protection order based on sexual assault. Id. at ¶ 7-

9. The magistrate credited petitioner’s testimony and found by a preponderance of the

evidence that respondent had engaged in conduct described in the sexual imposition

statute, which constituted a sexually oriented offense for purposes of R.C. 2903.214(C).

However, the magistrate denied the petition for a civil protection order, concluding that

there was nothing in the record to indicate the petitioner was in need of any type of

protection from the respondent. Id. at ¶ 10. The trial court overruled the petitioner’s

objections to the magistrate’s decision.7 The petitioner appealed.

{¶ 76} The Twelfth District Court of Appeals affirmed the trial court’s decision.

Although the court acknowledged that neither the plain language of R.C. 2903.214(C) nor

the case law specifically required a petitioner to show a need for the issuance of the

protection order before the order could be granted, the court stated that a sexually

oriented offense civil protection order is a special statutory remedy that is designed to

7 It is unclear why there were objections filed to the magistrate’s decision rather than to

the trial court’s adoption, modification, or rejection of the magistrate’s decision. Compare Civ.R. 53 and Civ.R. 65.1. -39-

prevent future harm to the petitioner before it occurs. Id. at ¶ 18. According to the

Twelfth District, the goal of the civil stalking protection order and the sexually oriented

offense civil protection order “is to allow the police and the courts to act before the

petitioner can be harmed by the respondent, rather than to punish the respondent for prior

bad acts.” Id. The court then concluded that there was nothing in the record to indicate

the respondent posed any threat to the petitioner because the respondent had been fired

from his job at Miami University, he no longer worked on the Miami University campus,

and there was nothing in the record that indicated the petitioner was still a student at

Miami University or continued to live around the Oxford area. Id. at ¶ 19. Therefore,

the Twelfth District held that the petitioner had not shown the requisite need for the civil

{¶ 77} As Petitioner points out, the facts in the case before us are markedly

different than the facts before the court in Tucker. Petitioner and Respondent were

classmates in a small cohort and knew each other before the events of October 28, 2022.

After Respondent allegedly committed his sexually oriented offense, both he and

Petitioner continued as law students at the same law school in the same, small class

cohort. Petitioner also testified that Respondent violated the no contact rule put into

place by the University of Dayton and explained why she feared future harm from

Respondent and needed a civil protection order to ensure her protection.

{¶ 78} Moreover, we are not persuaded by the authority cited by the Tucker court

in support of its conclusion that a petitioner needs to prove a threat of another, future

sexual offense even though such a requirement is not contained in R.C. 2903.214(C). -40-

The Tucker court cited to R.R. v. J.H., 2021-Ohio-706 (8th Dist.). There, the petitioner

testified that she went to the respondent’s house as a friend, but he forced her to have

anal and vaginal sex with him and beat her. The trial court credited the petitioner’s

testimony and issued both a sexually oriented offense civil protection order and a civil

stalking protection order. The Eighth District deferred to the trial court’s credibility

determinations and concluded that “[t]he evidence presented by [the petitioner] at the

hearing was sufficient to establish by a preponderance of the evidence that [the

respondent] committed a sexually oriented offense against her, and that a civil protection

order was warranted.” (Emphasis added.) R.R. at ¶ 26. The court then spent the rest

of its decision affirming the issuance of the separate, civil stalking protection order. The

Tucker court focused on the words “was warranted” and decided that the Eighth District’s

use of these words meant the Eighth District had added a requirement of “necessity” in

order for a petitioner to successfully obtain a sexually oriented offense civil protection

order. We do not believe that was a reasonable interpretation of the Eighth District’s

decision in R.R. At no point did the Eighth District discuss, analyze, or explicitly require

any evidence that the protection order “was necessary.” Rather, like our decision in

Junies, 2014-Ohio-141 (2d Dist.), the Eighth District simply required the petitioner to

prove the commission of a sexually oriented offense in order to obtain a civil protection

order under R.C. 2903.214(C).

{¶ 79} The Tucker court also pointed to the language in Sup.R. Form 10.3F, which

is used when trial courts issue civil protection orders under R.C. 2903.214(C)(1).

Specifically, a box is included on that form, like the one on the October 24, 2023 civil -41-

protection order issued by the trial court in the present case, that states “[t]he Court finds

by a preponderance of the evidence that 1) Petitioner or Petitioner’s family or household

members have been a victim of a sexually oriented offense as defined in R.C. 2950.01

committed by Respondent; and 2) the following orders are equitable, fair, and necessary

to protect the persons named in this Order from sexually oriented offenses.” The forms

provided in the Ohio Rules of Superintendence cannot override the substantive law

contained in R.C. 2903.214(C). Further, we construe the language “the following orders

are equitable, fair, and necessary” as referring to the specific restrictions placed on a

respondent within the protective order rather than to whether additional requirements of

fairness, equity, and necessity must be met before a protection order may be issued.

See R.C. 2903.214(E)(1)(a) (noting that the terms of the civil protection order should be

designed to ensure the safety and protection of the person to be protected by the order).

{¶ 80} Respondent also cites three other cases for the proposition that “Ohio

courts have affirmed the denial of petitions for civil sexually oriented offense protection

orders where the court found by a preponderance of the evidence that a sexual assault

occurred but there was no threat of future harm.” Respondent’s Brief, p. 12. However,

none of these cases dealt with petitions for sexually oriented offense civil protection

orders. K.B., 2017-Ohio-71 (9th Dist.) (reviewing a domestic violence civil protection

order issued pursuant to R.C. 3113.31); M.H., 2015-Ohio-5178 (9th Dist.) (reviewing a

domestic violence civil protection order issued pursuant to R.C. 3113.31); and Wagner,

2016-Ohio-5028 (5th Dist.) (reviewing the denial of a petition for a civil stalking protection

order that required sufficient evidence that the respondent engaged in menacing by -42-

stalking pursuant to R.C. 2903.211).

{¶ 81} The second assignment of error is sustained in part and overruled in part.

It would not be appropriate for us to grant Petitioner’s request to reinstate the civil

protection order as a matter of law given that the visiting judge did not rule on all of

Respondent’s objections and did not consider the credibility of the witnesses when

reviewing Respondent’s objections. The matter will be remanded to the trial court to rule

on Respondent’s objections under the appropriate legal standards set forth in this opinion.

V. Conclusion

{¶ 82} The judgment of the trial court will be reversed, and the cause will be

remanded for the trial court to rule on Respondent’s objections to the trial court’s October

24, 2023 order.

WELBAUM, J. and TUCKER, J., concur.