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Sheila G. Farmer, J. v. John E. Bricker

September 22, 2011

SHEILA G. FARMER, J. PETITIONER-APPELLEE
v.
JOHN E. BRICKER
RESPONDENT-APPELLANT



CHARACTER OF PROCEEDING: Civil Appeal from Ashland County Court of Common Pleas Case No. 10-CPO-370

The opinion of the court was delivered by: Edwards, J.

Cite as Cook v. Bricker,

JUDGES: LOUIS J. COOK : W. Scott Gwin, P.J. Julie A. Edwards, J.

OPINION

JUDGMENT: Reversed and Remanded

[Cite as Cook v. Bricker, 2011-Ohio-4898.]

{¶1} Appellant, John Bricker, appeals from the January 18, 2011, Judgment Entry of the Ashland County Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 20, 2010, appellee Louis Cook filed a Petition for Civil Stalking or Sexually Oriented Offense Protection Order pursuant to R.C. 2903.214 against appellant John Bricker. The petition indicated that appellee was seeking relief on behalf of himself and on behalf of his spouse, Elizabeth Cook, his son, Ross J.E. Cook, his father-in-law, Marshall Ross, Sr., his brother-in-law, Marshall Ross, Jr., and his mother- in-law, Elizabeth Ross. An ex parte Civil Stalking Protection Order was filed on the same date. A hearing on such motion was scheduled for August 30, 2010.

{¶3} At the hearing before a Magistrate, appellee Louis Cook testified that he resided at 159 County Road 530 in West Salem and that appellant was his neighbor. Appellee Cook testified that he was outside with his 3 year old son and his big Mastiff-

type dog on August 19, 2010, when the dog ran into appellant's yard. When appellee went to retrieve his dog, appellant "was saying "Get that mother fuckin' bitch off my property.'" Transcript at 10. Appellee Cook testified that appellant said that he was going to shoot the dog between the eyes and called appellee's brother-in-law and father-in-law "mother fuckin' cock-suckers." Transcript at 11. Appellee Louis Cook testified that they had had instances with appellant in the past.

{¶4} According to appellee Cook, appellant threatened to shoot him and the dog if he did not get the dog off of his property within two minutes. Appellee Cook testified that this was the only time that he had had a problem with appellant. Appellee Cook testified that appellant did not have a weapon on him. On cross-examination, appellee Cook testified that he asked appellant if appellant said that he was going to shoot him and that appellant said yes.

{¶5} Marshall Ross, Sr., appellee Cook's father-in-law, testified that he was outside during the above incident and that he heard appellant tell appellee Cook to "get the son-of-a-bitch out of here" and that he was going to put a bullet between the dog's eyes. Transcript at 19. He testified that he owned the property at 159 County Road 530 and that he had lived there since December of 1998. When he moved in, appellant did not live next door. Marshall Ross, Sr. testified that he had three other incidents with appellant. During one incident on June 1, 2008, he was down in the back of his property cutting wood when appellant threatened to shoot him if he did not stay off of appellant's property. During the second incident, Marshall Ross, Sr. was again in the back of his property cutting wood when a piece of wood fell down by appellant's property. When he went over to pick it up, appellant again told him to stay off of his property or he would be shot.

{¶6} According to Marshall Ross, Sr. the third incident occurred on the property line between their two properties. He testified that such incident occurred in August of 2009 or 2010. The following testimony was adduced at the hearing:

{¶7} "THE COURT: When was it?

{¶8} "THE WITNESS: That one was a - - 2010 or 2009 - - 8/19 it could have been of 2010, and that was the one where - - he run over my prop - - he kept knocking down my property stake, and I told him - - I went over - - I went over, I told him, 'Would you quit knocking down my property stake,' and he come flying towards me with his mower, and I said, 'Just quit' - - and he said, 'Get off my damn property, I'll put a cap up your ass.' That's exactly what I was told." Transcript at 23-24.

{¶9} At the hearing, Marshall Ross, Jr. testified that he was appellee Cook's brother-in-law. He testified that he did not witness the incident on August 19, 2010 and that appellant had never threatened to shoot him. Marshall Ross, Jr. testified that appellant came over and swore at him and yelled at him and threatened to kick his ass a few times. He further testified that he did not witness any of the times appellant threatened to shoot Marshall Ross, Sr. On cross-examination, he testified that he was not afraid of appellant.

{¶10} Appellant testified that he lived at 167 County Road 530 and had lived there since 1999. Appellant testified that appellee Cook had moved into the neighboring property about three weeks prior to the hearing. Appellant testified that, on August 19, 2010, he told appellee Cook the he had two minutes to remove the dog from appellant's property or the dog would be shot. According to appellant, when appellee Cook asked whether appellant threatened to shoot him, appellant indicated that he said the dog. He testified that he had no intention of shooting appellee Cook or the dog and that he did not have a gun on him. Appellant denied threatening to shoot appellee Louis Cook.

{¶11} Appellant testified that he never intentionally knocked over the property line pin and that any disputes that he had with Marshall Ross, Sr. related to one or the other crossing the property line. He denied ever threatening to shoot Marshall Ross, Sr. but testified that one day he said "I'm going to bust my cap over your hind end" if Ross, Sr. did not get back to his side of the property. Transcript at 35. Appellant testified that he had no intention of shooting anyone.

{¶12} On cross-examination, appellant testified that he owned 13 weapons and that he never threatened to shoot Marshall Ross, Sr. When questioned by the court about the August 19, 2010, incident, he testified that the dog was barking and growling at him and that he tried to shoo the dog away. Appellant testified that he was not afraid of the dog.

{¶13} On September 15, 2010, the Magistrate issued, and the trial court approved, a Civil Stalking Protection Order. The persons protected by the same were appellee Louis Cook, Elizabeth Cook, Ross J.E. Cook, Marshall Ross, Sr. and Marshall Ross, Jr. The court made the order effective until August 30, 2015. On September 27, 2010, appellant filed a Request for Findings of Facts and Conclusions of Law. An Amended Magistrate's Decision with Findings of Facts and Conclusions of Law was filed on October 27, 2010.

{ΒΆ14} On November 10, 2010, appellant filed objections to the Magistrate's Decision. In his objections, he reserved the right to amend or supplement his objections after the transcript of hearing was filed. Subsequently, after the transcript was filed, appellant, on January 3, 2011, filed ...


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