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Bartells v. Bertel

Court of Appeals of Ohio, Twelfth District, Butler

January 2, 2018

ANTHONY BARTELLS, Petitioner-Appellee,
v.
CRAIG BERTEL, Respondent-Appellant.

         CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CP2016-05-0239

          Muhammad Hamidullah, for petitioner-appellee

          Croskery Law Offices, Alexander J. Durst, for respondent-appellant

          OPINION

          M. POWELL, J.

         {¶ 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 ("Petitioner").

         {¶ 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 Patricia's home.

         {¶ 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 2016.

         {¶ 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 CSPO.

         {¶ 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, finding that

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 ...


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