Court of Appeals of Ohio, Twelfth District, Butler
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Muhammad Hamidullah, for petitioner-appellee
Croskery Law Offices, Alexander J. Durst, for
1} Respondent-appellant, Craig Bertel
("Respondent"), appeals a decision of the Butler
County Court of Common Pleas granting a civil stalking
protection order ("CSPO") against him and in favor
of petitioner-appellee, Anthony Bartells
2} Following the finalization of their divorce in
2014, Respondent and Patricia Bertel ("Patricia")
continued to litigate issues relating to the custody and
parenting time of their three children. Petitioner and
Patricia are romantically involved and live together in
3} Following a number of runs-ins with Respondent,
Petitioner filed a petition for a CSPO on May 24, 2016. The
petition alleged that Respondent had followed Petitioner a
few times and once parked near Patricia's home in a
visitor parking spot so that Respondent "could see into
the bedroom window and watch" Petitioner. As a result,
the petition alleged, Petitioner was under a lot of stress
and fear and "had to change where I park when I leave
for work and come home [and] watch over my shoulder all the
time." That same day, a magistrate held an ex parte
hearing, issued a temporary ex parte CSPO ("temporary
CSPO"), and scheduled a full evidentiary hearing
("CPO hearing") on the matter. The CPO hearing was
held on July 26, 2016. Petitioner described the incidents
that prompted him to request the CSPO. Respondent and
Patricia testified as well.
4} Petitioner first testified that when the parties
attended a function at Adena Elementary School in early 2016,
Respondent told Petitioner to get out of his business or he
would kick his "butt, " then "got in
[Petitioner's] face" and pushed him. Patricia
testified that the incident occurred in early 2016 and that
as the two men were arguing, Respondent stated he was going
to kick Petitioner's "butt." Patricia could not
remember whether Respondent pushed Petitioner.
5} Another incident occurred in February or March
2016 at Hopewell Elementary School where the parties were
attending a Cub Scouts meeting. During the meeting,
Respondent used his cellphone and videotaped or took pictures
of Petitioner. Patricia testified Respondent's cellphone
was pointed in her and Petitioner's direction. A
photograph taken by Petitioner shows Respondent holding his
cellphone in his hands and listening to a speaker.
Respondent's body is turned toward the speaker whereas
his cellphone is pointed away from the speaker and in the
direction of Petitioner and Patricia.
6} The next incident occurred on March 16, 2016,
when Respondent picked up the children at Patricia's
home. As Petitioner was walking behind Respondent's car
to head back into the residence, Respondent backed up and
struck Petitioner, knocking him to the ground and injuring
his right shoulder. Petitioner stated his belief Respondent
intentionally struck him with his car. Patricia stated she
did not know whether Respondent struck Petitioner on purpose.
7} Another incident occurred shortly after when
Petitioner was at work. As Petitioner was taking out the
trash, he observed a dark grey, two-door Honda Civic parked
several feet away from the building. The driver looked to be
a man. As Petitioner tried to get a better look at the
driver, the car turned around and quickly drove away.
8} The next incident occurred on the morning of May
24, 2016, the day Petitioner filed his CSPO petition.
Respondent was to pick up the children at Patricia's home
at 9:00 a.m. Petitioner observed Respondent sitting in his
car around 8:35 a.m. Respondent was unusually parked away
from the house, in a visitor parking spot that allowed him to
have a clear view of the home and see into the bedroom
window. At the time of the incident, Petitioner was in the
bedroom, getting ready for work.
9} Petitioner further testified about two incidents
that occurred after the temporary CSPO was issued on May 24,
2016. The first incident involved an email Respondent sent to
Patricia, asking that she and Petitioner drop the temporary
CSPO. Patricia testified that in reply to her wish to have
family counseling, Respondent told her he would not agree to
counseling unless the temporary CSPO was dropped. The second
incident involved Respondent being parked at the pool house
of Patricia's apartment complex. Each of these incidents
would violate the terms of the temporary CSPO.
10} Petitioner and Patricia further testified about
two other incidents, to wit, a cut brake line on
Patricia's car which Petitioner had been driving for one
to two weeks, and Respondent parking behind Patricia's
and Petitioner's vehicles for five to ten minutes in a
parking garage on the day of a hearing before the magistrate.
With regard to the cut brake line, Petitioner stated his
belief Respondent did it. By contrast, Patricia could not say
that Respondent cut the brake line. Finally, Petitioner
testified that Respondent followed him in his car in June
11} Respondent denied threatening to kick
Petitioner's "butt" and pushing him at Adena
School, or taking pictures of Petitioner at Hopewell School.
Respondent denied any involvement regarding the cut brake
line on Patricia's car. He further denied driving or
owning a Honda Civic, and denied knowing anyone who has a
grey Honda Civic. Respondent admitted he once followed
Petitioner and Patricia as he was driving to work. He
explained that after Patricia picked up the children, they
were all traveling on the same road until they eventually
went their separate ways.
12} Respondent admitted parking behind
Petitioner's and Patricia's vehicles in the parking
garage on the day of a hearing, but stated he did not see
their vehicles until he exited his car, at which point he got
back into his car and parked somewhere else. Respondent
further admitted he parked at the pool house of
Patricia's apartment complex but stated he was simply
picking up a friend of one of the children and believed he
was parked in compliance with the temporary CSPO.
13} Respondent explained that he intentionally
parked away from Patricia's home on the morning of May
24, 2016, so that he could simply pull away from the parking
spot and not back up. Respondent denied he was there 30
minutes earlier than his pick-up time; rather, he was there 9
minutes early. Respondent denied seeing Petitioner that day
or knowing he was home.
14} Respondent admitted he sent the email to
Patricia about the temporary CSPO but claimed he was only
suggesting it would be nice if the CSPO was dropped. In
response to the magistrate's questioning, Respondent
conceded that in his exchange of emails with Patricia about
counseling, he was the first one to mention the temporary
15} Respondent admitted audio-recording the incident
where he struck Petitioner with his car. Respondent admitted
he saw Petitioner behind his car, asked him to either move or
stay still, and when Petitioner did not move, started backing
up slowly and ultimately struck him. Respondent denied he
intentionally struck Petitioner. Rather, he "thought he
had moved back a little bit, or was just going to stand there
and let me pull out."
16} At the conclusion of the hearing, the magistrate
ruled that a CSPO protecting Petitioner from Respondent was
in order, finding that the preponderance of the evidence
showed that Respondent "engaged in a pattern of conduct
whereby he knowingly caused [Petitioner] to feel fear of
physical harm [and] actually did physically harm him."
The next day, the magistrate issued a three-year CSPO,
Petitioner established that Respondent engaged in conduct
that caused him to believe he would cause harm to him. Taking
in the totality of the circumstances[, ] the court finds that
Respondent exhibited behavior that was in disregard of
Petitioner's health and safety. The Court finds that
Respondent purposely struck Petitioner with his vehicle,
followed Petitioner, photographed him w/o permission and
engaged in behavior so as to surreptitiously observe
Petitioner. The adverse behavior continued even after the
issuance of a temporary order.
Respondent filed objections to the magistrate's decision.
On October 13, 2016, the trial court overruled the objections
and adopted the magistrate's decision.
17} Respondent now appeals, raising four assignments
of error. The third and fourth assignments of error will be
addressed in reverse order.
18} Assignment of Error No. 1:
19} THE COURT ERRED IN EXCLUDING EVIDENCE OF WITNESS
PATRICIA BERTEL'S BIAS AND CHARACTER FOR UNTRUTHFULNESS.
20} Respondent challenges the trial court's
refusal to admit one of Patricia's Facebook posts,
arguing the post was admissible under Evid.R. 608(B) and
616(A) because it showed Patricia's bias, prejudice, and
motive against Respondent. Respondent further argues the
trial court erred in not allowing him to cross-examine
Patricia to show she had lied about the ...