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Charles Warnecke v. Troy Whitaker

October 24, 2011


Appeal from Putnam County Common Pleas Court Domestic Relations Division Trial Court No. 2010 DV 304

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

Cite as Warnecke v. Whitaker,


Judgment Affirmed

{¶1} Respondent-appellant, Troy Whitaker ("Whitaker"), appeals the January 31, 2011 judgment of the Common Pleas Court of Putnam County, Ohio, granting the request of the petitioner-appellee, Charles Warnecke ("Warnecke"), for a stalking civil protection order ("CPO").

{¶2} The facts relevant to this appeal are as follows. On December 11, 2010, the musical, Annie, was being performed at the Fort Findlay Playhouse in Findlay, Ohio. Warnecke's daughter, Claire, played the part of Annie, and Warnecke played a few minor roles in the production. That evening, Warnecke's ex-wife, Jennifer, transported Clair to the show and took her downstairs to an area known as the "green room", where other members of the cast were gathered, including Warnecke. Warnecke began speaking with Jennifer about whether he could take their daughters with him to celebrate Christmas with his family the following day. The two could not reach an agreement, and the discussion became heated. Jennifer began yelling at Warnecke, and the director of the musical, Martin Williams, came to intervene. Jennifer went upstairs, and a few minutes later, Jennifer's fiance,*fn1 Whitaker, came downstairs to the green room, accompanied by another man, Scott Gross.

{¶3} According to Warnecke, Whitaker told him to leave the girls alone, that the girls did not want to be with him, and that he was not to come to the home that Whitaker shared with Jennifer and the girls the next day because that would be trespassing. At this point, Gross stepped within a few inches of Warnecke's face and said, "I do things differently than people around here, do you understand what I'm saying." (Hrg., 1/31/11, p. 30.) When Warnecke addressed Gross by name, he stepped back and asked Warnecke, "why don't we just go outside and settle this[?]" (id. at p. 31.) In response, Warnecke requested that Martin ask the two men to leave. Once again, Gross stated, "Let's go outside and settle this." (id.) Martin informed the men that they needed to stop because they were upsetting all of the people in the room, and Whitaker and Gross went upstairs to watch the musical.

{¶4} The musical consisted of two acts with an intermission in between the acts. After intermission, two actors approached Martin and told him that one of the men had re-entered the playhouse during intermission carrying a gun. Martin informed Warnecke of this, and Warnecke told him that he thought that Whitaker had a concealed carry permit. According to Martin, a number of members of the Fort Findlay Playhouse Board, who were backstage, began questioning whether they should call the police. None of them knew how to proceed because none of them had ever experienced this type of situation and the playhouse did not have a posted sign prohibiting anyone from entering the premises with a gun. Although Martin asked Warnecke if he wanted to leave, Warnecke elected not to leave.

{¶5} No one from the playhouse approached Whitaker or Jennifer about the gun or called the police to address the situation. Rather, they decided to finish the show and then get everyone separated and out the doors as quickly as possible, particularly Warnecke. In addition, various members of the production decided to monitor different areas of the building, including Martin who monitored the stage area. Throughout the second act whenever someone from the cast left the stage, they would provide an update to the others of what Whitaker, who was seated in the balcony, was doing.

{¶6} At the end of the musical, Whitaker stood up and applauded the performance. When he stood, his gun, which was tucked into his waistband, was visible. Whitaker and Jennifer left the balcony area and waited in the back of the theater for Clair. A cast member informed Jennifer that Whitaker's gun was visible and she moved his shirt to cover the gun.

{¶7} Another member of the cast, Patrick Davis, saw Whitaker's gun when Whitaker was still in the balcony area, and Davis quickly escorted Warnecke to a different area of the playhouse. He then walked Warnecke to his vehicle. According to Warnecke, he never actually saw the gun and did not have any idea of the level of activity that the other members of the production were engaged in until the following day. However, he did realize that something was wrong when Davis walked him to his vehicle. Warnecke had no further contact with Whitaker.

{¶8} On December 16, 2010, Warnecke filed a petition for a stalking CPO for himself and his daughters against Whitaker.*fn2 A temporary CPO was granted that same day, and a full hearing on the matter was set for a later date.*fn3

{¶9} At the full hearing, Warnecke, Martin Williams, and Patrick Davis testified on Warnecke's behalf about the events at the playhouse. Whitaker and Jennifer testified on Whitaker's behalf. Both Whitaker and Jennifer testified that Whitaker had a permit to carry a concealed weapon and that he carried his gun into the playhouse that night. However, they further testified that he had the gun the entire time that he was there and that although he went to his vehicle during intermission, he did so in order to retrieve an umbrella so that Clair did not have to walk in the rain, not in order to get his gun.

{ΒΆ10} After hearing the evidence, the trial court granted Warnecke's request for a CPO for himself but did not extend the CPO to Warnecke's daughters. This CPO provides, inter alia, that Whitaker shall not be within 500 feet of Warnecke or have any contact with him. In addition, Whitaker is not permitted to possess, use, carry, or obtain any deadly weapon. The trial court made the terms of the CPO ...

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