[Cite as Wade v. Wade,
2024-Ohio-3136.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LILLIAN ROSALIE WADE JUDGES:
Hon. W. Scott Gwin, P.J.
Petitioner-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vsCase No. CT2024-0005
SHERRI WADE
Respondent-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court
of Common Pleas, Domestic Relations
Division, Case No. DH2023-0598
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 15, 2024
APPEARANCES:
For Petitioner-Appellee For Respondent-Appellant
LILLIAN WADE BRIAN W. BENBOW
912 Arch Street Benbow Law Offices
Zanesville, Ohio 43701 803 Taylor Street
Zanesville, Ohio 43701
Muskingum County, Case No. CT2024-0005 2
Hoffman, J.
{¶1} Respondent-appellant Sherri Wade appeals the December 14, 2023 Order
of Protection issued by the Muskingum County Court of Common Pleas, which granted
petitioner-appellee Lillian Rosalie Wade a civil stalking protection order (“CSPO”) against
her.
STATEMENT OF THE CASE AND FACTS
{¶2} On September 18, 2023, Appellee filed a Petition for Civil Stalking
Protection Order against Appellant. The trial court issued an ex parte CSPO on the same
day. The trial court conducted a full hearing on Appellee’s petition on December 13, 2023.
{¶3} Appellee explained Appellant and her son (“Husband”) are married, but
separated. On August 26, 2023, after Appellant “kicked him out,” Husband went to
Appellee’s house to, according to Appellee, “get away from her so she wouldn’t bother
him.” Transcript of December 13, 2023 Hearing at p. 9. Appellee stated she received calls
“all night long” from Appellant. Id. Appellant threatened to kick in the doors to Appellee’s
home.
{¶4} Appellee recalled the tires on Husband’s truck were slashed while the
vehicle was parked on the street in front of Appellee’s residence. Appellant later left a
voicemail message on Husband’s phone, saying she would pay for the tire repairs if he
returned her call. Appellee also recounted a time when a City Code Enforcement officer
appeared at her home and required her to move Husband’s truck to the rear of the
property. Appellee firmly believed Appellant contacted City Code Enforcement,
explaining the officer showed Appellee the phone number of the complaining party, which
was Appellant’s phone number. Appellee contacted law enforcement after Appellant,
using a key fob, repeatedly set off the alarm on Husband’s truck throughout the late hours
Muskingum County, Case No. CT2024-0005 3
of the night. The incident was captured on a neighbor’s security camera. Neither
Appellee nor her niece were able to acquire a copy of the video footage from the security
camera or obtain a copy of the police reports.
{¶5} Appellee testified police appeared at her home at Appellant’s request and
asked Appellee to return Appellant’s garage door opener. After dark on the same day,
Appellant came to Appellee’s home, knocked on the front and back doors, knocked on
the basement windows, tried to enter the residence, and repeatedly rang the doorbell.
Appellee contacted police. A neighbor observed someone running to the back of the
residence when officers arrived.
{¶6} Appellee acknowledged she suffered from depression and had been
hospitalized in 2002, as a result. Appellee noted Appellant is aware of her mental health
issues. Appellee also suffers from pleurisy and other physical health issues. Appellee
stated she is struggling with depression again and is on medication. On cross-
examination, Appellee explained, “When [Appellant] started all that trouble with
[Husband], I went into deep depression and had the doctor.” Tr. at p. 25. Appellee added
her niece is now her caretaker, “taking care of my affairs ‘cause I’m not able to right now.”
Id.
{¶7} Linda Suttles, Appellee’s niece, testified Appellee contacted her on
September 13 or 14, 2023, asking for help. Suttles recalled Appellee was distraught after
the incidents with Appellant, and she felt unsafe after Husband moved out of her
residence. Suttles explained she has observed Appellee over the years and Appellee’s
mental health was stable prior to the incidents involving Appellant. Suttles described
Appellee as an emotional wreck, on the verge of a nervous breakdown, afraid to leave
Muskingum County, Case No. CT2024-0005 4
her home due to fear Appellant or her family members would harm her, and unable to
care for herself. Suttles drives Appellee to her medical appointments and wherever else
Appellee needs to go. Suttles added Appellant found out where she lived and appeared
at Suttles’ residence, looking for Husband. Suttles indicated she had never met Appellant
prior to this contact.
{¶8} Appellant testified she called Appellee’s residence on three occasions and
left voicemail messages, but denied making any threats towards Appellee or harassing
her in any way. Appellant also admitted knocking on the doors and windows of Appellee’s
residence as well as sending police to the residence to retrieve a garage door opener.
Appellant acknowledged she was aware of Appellee’s history of depression and other
health issues.
{¶9} On December 13, 2023, the trial court issued a two-year CSPO against
Appellant.
{¶10} It is from this order Appellant appeals, raising as her sole assignment of
error:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ISSUED
THE CIVIL STALKING PROTECTION ORDER (“CSPO”) AGAINST
APPELLANT. THE TRIAL COURT’S CSPO IS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE. APPELLEE
PRODUCED NO EVIDENCE THAT APPELLANT ENGAGED IN AN FACE-
TO-FACE CONTACT CREATING A “PATTERN OF CONDUCT” CLOSELY
RELATED IN TIME” [SIC] OR THAT APPELLANT CAUSED “MENTAL
Muskingum County, Case No. CT2024-0005 5
DISTRESS” OR THAT APPELLANT THREATENED APPELLEE WITH
IMMINENT “PHYSICAL HARM.”
Standard of Review
{¶11} The decision whether to grant a civil protection order lies within the sound
discretion of the trial court. Singhaus v. Zumbar, 2015-Ohio-4755 (5th Dist.). An abuse of
discretion is where the trial court's decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶12} A reviewing court must not substitute its judgment for that of the trial court
where there exists some competent and credible evidence supporting the judgment
rendered by the trial court. Eastley v. Volkman, 2012-Ohio-2179. The weight to be given
to the evidence and the credibility of the witnesses are issues for the trier of fact. State v.
Jamison,
49 Ohio St.3d 182, 189 (1990). The trier of fact “has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not translate
well on the written page.” Davis v. Flickinger,
77 Ohio St.3d 415, 418 (1997).
I
{¶13} In her first assignment of error, Appellant argues trial court abused its
discretion in granting a CPO.
{¶14} R.C. 2903.214 governs the issuance of protection orders and provides, in
pertinent part:
(C) A person may seek relief under this section for the person, or any
parent or adult household member may seek relief under this section on
Muskingum County, Case No. CT2024-0005 6
behalf of any other family or household member, 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 engaged in a violation of section 2903.211 of the Revised Code against
the person to be protected by the protection order or 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.
R.C. 2903.214(C)(1).
{¶15} “To be entitled to a civil stalking protection order, a petitioner must show, by
a preponderance of the evidence that the respondent engaged in menacing by stalking a
violation of R.C. 2903.211, against the person seeking the order.” Tumblin v. Jackson,
2006-Ohio-3270, ¶ 17 (5th Dist.). “Preponderance of the evidence means the greater
weight of the evidence, or evidence that leads the trier of fact to find that the existence of
a contested fact is more probable than its nonexistence.” State v. Stumpf,
32 Ohio St.3d
95, 102 (1987). Therefore, “[w]hen assessing whether a civil stalking protection order
should have been issued, the reviewing court must determine whether there was
sufficient credible evidence to prove by a preponderance of the evidence that the
petitioner was entitled to relief.” Fouch v. Pennington,
2012-Ohio-3536, ¶ 9 (12th Dist.).
This standard is, in essence, a review as to whether the issuance of the civil stalking
protection order was against the manifest weight of the evidence. McBride v. McBride,
2012-Ohio-2146, ¶ 10 (12th Dist.).
{¶16} R.C. 2903.211(A)(1) proscribes “menacing by stalking” and provides:
Muskingum County, Case No. CT2024-0005 7
(A)(1) No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause physical harm
to the other person or a family or household member of the other person or
cause mental distress to the other person or a family or household member
of the other person.
{¶17} As used in R.C. 2903.211, “ ‘pattern of conduct’ means two or more actions
or incidents closely related in time, whether or not there has been a prior conviction based
on any of those actions or incidents.” R.C. 2903.211(D)(1). The statute, however, does
not define “closely related in time.” Accordingly, “the temporal period within which the two
or more actions or incidents must occur … [is a] matter to be determined by the trier of
fact on a case-by-case basis.” Ellet v. Falk, 2010–Ohio–6219, ¶ 22 (6th Dist.).
{¶18} R.C. 2903.211(D)(2) defines “mental distress” as:
(a) Any mental illness or condition that involves some temporary
substantial incapacity;
(b) Any mental illness or condition that would normally require
psychiatric treatment, psychological treatment, or other mental health
services, whether or not any person requested or received psychiatric
treatment, psychological treatment, or other mental health services.
R.C. 2903.211(D)(2).
Muskingum County, Case No. CT2024-0005 8
{¶19} The statute, however, “does not require that the victim actually experience
mental distress, but only that the victim believes the stalker would cause mental distress
or physical harm.” Bloom v. Macbeth, 2008–Ohio–4564, ¶ 11 (5th Dist.), citing State v.
Horsley, 2006–Ohio–1208 (10th Dist.).1 Moreover, the testimony of the victim herself as
to her fear is sufficient to establish mental distress. Horsley at ¶ 48. An “[i]ncapacity [from
a “mental illness”] is substantial if it has a significant impact upon the victim's daily life,
such as causing a change in one's routine.” (Citation omitted). A.V. v. McNichols, 2019-
Ohio-2180, ¶ 22 (4th Dist.).
{¶20} Appellant contends Appellee failed to establish by a preponderance of the
evidence she (Appellant) engaged in a pattern of conduct and Appellee suffered mental
distress as a result. We disagree.
{¶21} The testimony at the hearing revealed a number of incidents which establish
Appellant engaged in a “pattern of conduct.” Appellee testified, after Appellant and
Husband separated on August 26, 2023, Appellant called Appellee’s home “all night long.”
During these calls, Appellant threatened to kick in the doors to Appellee’s home. Appellee
recalled another incident wherein Appellant slashed the tires on Husband’s truck while
the vehicle was parked on the street in front of Appellee’s residence. In a voicemail,
Appellant told Husband she would pay to have the tires repaired if Husband returned her
call. Another time, a City Code Enforcement officer appeared at Appellee’s home after
receiving a complaint about Husband’s truck being parked on the street in front of the
1 This author concurred in Bloom, noting I was “not persuaded … the statute does not require the victim
to actually experience mental distress.” Bloom, at ¶ 15. Since then, I have disagreed with the majority of
the Court and concluded the statute requires actual mental distress. See, concurrence, Z.J. v. R.M., 2023-
Ohio-3552, ¶ 42 (5th Dist.). However, I find the evidence in this case was sufficient to establish Appellee,
the victim, suffered actual mental distress; therefore, the result is the same.
Muskingum County, Case No. CT2024-0005 9
residence. The phone number of the complaining party belonged to Appellant. Late one
evening, Appellee had to contact law enforcement because Appellant, using a key fob,
was continually setting off the alarm on Husband’s truck. Appellee also testified police
appeared at her home at Appellant’s request and asked Appellee to return Appellant’s
garage door opener. After dark on the same day, Appellant came to Appellee’s home,
knocked on the front and back doors, knocked on the basement windows, tried to enter
the residence, and repeatedly rang the doorbell. Appellee contacted police. A neighbor
observed someone running to the back of the residence when officers arrived.
{¶22} Appellant acknowledged she called Appellee’s residence on three
occasions and left voicemail messages. Appellant denied threatening Appellee or
harassing her in any way. Appellant also admitted knocking on the doors and windows
of Appellee’s residence. Appellant further conceded she sent police to Appellee’s
residence to retrieve a garage door opener.
{¶23} The testimony further established Appellant’s “pattern of conduct” caused
Appellee to suffer mental distress. Appellee acknowledged she struggled with depression
and was hospitalized in 2002, as a result. Appellant conceded she was aware of her
mental health issues. Appellee also suffers from physical health issues. Appellee stated
she was stable, but since the incidents with Appellant, she is struggling with depression
again and is on medication. Appellee’s niece, Linda Suttles, currently takes care of
Appellee’s affairs “ ‘cause I’m not able to right now.” Tr. at p. 25.
{¶24} Suttles testified Appellee contacted her on September 13 or 14, 2023,
asking for help. Suttles noted Appellee was distraught after the incidents with Appellant,
adding Appellee felt unsafe after Husband moved out of her residence. Suttles explained
Muskingum County, Case No. CT2024-0005 10
she has observed Appellee over the years and Appellee’s mental health was stable prior
to the incidents involving Appellant. Suttles described Appellee as an emotional wreck,
on the verge of a nervous breakdown, afraid to leave her home due to fear Appellant or
her family members would harm her, and unable to care for herself.
{¶25} Appellant asserts Appellee’s testimony regarding her mental distress was
not objectively reasonable. “The plain language of the statute simply refers to conduct
that will affect ‘the other person.’ ” Lane v. Brewster, 2012-Ohio-1290, ¶ 20 (12th Dist.),
citing R.C. 2903.211(A)(1). The language in R.C. 2903.22(A)(1) “does not require a court
to determine the respondent's effect on the ‘reasonable’ person, [but] only those
specifically involved.” (Emphasis added.)
Id. Therefore, when determining whether the
petitioner is entitled to the issuance of a civil stalking protection order against the
respondent pursuant to R.C. 2903.214(C)(1), “the focus is on the petitioner's fear, not that
of an objective, reasonable person.” (Emphasis added.) Fortney v. Willhoite, 2012-Ohio-
3024, ¶ 43 (11th Dist.). “The statute does not require that the victim actually experience
mental distress, but only that the victim believes the stalker would cause mental distress
or physical harm.” (Citation omitted.) Bloom v. Macbeth,
2008-Ohio-4564, ¶ 11 (5th Dist.).2
{¶26} Based upon the foregoing, we find Appellee established by a
preponderance of the evidence Appellant engaged in menacing by stalking. We further
find the trial court did not abuse its discretion in issuing a CSPO against Appellant.
{¶27} Appellant’s sole assignment of error is overruled.
2 See footnote 1, ¶ 19, supra.
Muskingum County, Case No. CT2024-0005 11
{¶28} The judgment of the Muskingum County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur
