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A.V. v. McNichols

Court of Appeals of Ohio, Fourth District, Hocking

May 31, 2019

A.V., Petitioner-Appellee,
STEVEN R. McNICHOLS, Respondent-Appellant.

          James R. Kingsley, Circleville, Ohio, for appellant.

          Courtenay Balvin, Southeastern Ohio Legal Services, Chillicothe, Ohio, for appellee.


          Michael D. Hess, Judge.

         {¶1} A.V. obtained a civil stalking protection order ("CPO") against Steven R. McNichols from the Hocking County Court of Common Pleas. McNichols challenges the order on appeal.

         {¶2} McNichols argues that the trial court committed prejudicial error when it issued a CPO because (1) the trial court's finding that he caused mental distress was contrary to law and against the manifest weight of the evidence, and (2) the applicable statute requires him to be a family member and the trial court's finding that he was "living as a spouse" was contrary to law and against the manifest weight of the evidence. We find that the record contains ample evidence that McNichols knowingly caused A.V. emotional distress, fear, anxiety and concern for her safety. There is sufficient evidence to support the conclusion that A.V. suffered mental distress as a result of McNichols's persistent and unwelcomed behavior.

         {¶3} Contrary to McNichols's assertions, the statutes governing civil protection orders for menacing by stalking do not require the victim and offender to be "family or household members" or "living as a spouse" and the trial court did not find that A.V. was "living as a spouse." To obtain a civil stalking protection order, petitioner must show the offender engaged in a pattern of conduct that knowingly caused another to believe the offender will cause physical harm or mental distress. There is no requirement that the victim and offender be family or household members. And, contrary to McNichols's representation, the trial court held that the domestic violence protection order statute has no relevance to the case and a finding that A.V. was living as a spouse would have no impact on the case. A.V.'s case was governed by the civil stalking protection order statutes. We overrule McNichols's sole assignment of error and affirm the trial court's judgment.


         {¶4} A.V. filed a petition for a civil stalking protection order against McNichols in June 2018 under R.C. 2903.214 and R.C. 2903.211. The trial court issued a temporary ex parte CPO, held an evidentiary hearing, and granted A.V. a CPO against McNichols, effective until June 29, 2019. At the hearing the trial court heard the following evidence.

         {¶5} A.V. and McNichols were involved in a romantic relationship from August 2014 until the fall of 2017 and lived together for six months from approximately September 2014 to February 2015. During that time they broke up and reunited several times.

         {¶6} As a child A.V. had been sexually abused by several male relatives and McNichols was aware of the abuse. McNichols used knowledge of the sexual abuse to inflict mental distress on her. McNichols repeatedly called A.V. a "whore" for wearing certain clothes or makeup. A.V. testified that she attended a relative's funeral and McNichols told her to be home by 2:00 PM. When she arrived a few minutes late, McNichols tormented her with accusations that the reason she was late was so that her "uncles can take turns with me sexually." On another occasion McNichols told A.V. that if he saw her being raped by six guys, he would not help her. Another time McNichols told A.V. to "go find your dad and grandpa so they can go rape you." McNichols told A.V. that if she ever got involved with anybody else, he would tell that person that A.V. liked anal sex because he knew that her grandfather had raped her in that manner as a child. A.V. testified that when McNichols made these remarks, she had tearful breakdowns and his response would be "go ahead and cry those crocodile tears."

         {¶7} During their relationship, A.V. had to quit a job because McNichols accused her of having an affair at work. McNichols would not allow A.V. to see her family members and threatened to "throw all [A.V.'s] stuff out" if she visited her brother. A.V. testified that McNichols would follow A.V. in his car and on one of those occasions he circled his car around her four times as she was getting gasoline. A.V. testified that there were so many instances of McNichols inflicting emotional distress that she could not recall them all, "It was constant." A.V. told McNichols many times to leave her alone and that she only wanted "to be friends, nothing more." But McNichols told her, "If we can't be together, I will get you evicted" from her home. A.V. told McNichols that if he would not leave her alone, she would get a restraining order. McNichols replied, "It's just a piece of paper. I can walk through it." A.V. testified that there were times McNichols drove by her house and revved his engine. A.V. did not want McNichols to come onto her property. She complained to her landlord, who was McNichols's uncle, about McNichols and her landlord advised her to get a restraining order.

         {¶8} A.V. acknowledged that she had been to McNichols's house several times in June 2018. She testified that her dog had puppies and McNichols had the puppies at his house and encouraged her to visit the puppies. She also went to McNichols's house to return property that belonged to him. A.V. stated that if she did not go to his house, then McNichols would come to her house. If she did not answer the door, he would shout through the window. A.V. testified that by going to McNichols's house, she was "trying to keep peace."

         {¶9} A.V. filed her petition for a civil stalking protective order after several incidents in June 2018. On June 26, 2018 McNichols went to A.V.'s sister's house looking for A.V.. Her sister texted her that McNichols was looking for her. A.V. testified that she called the Hocking County Sheriff's Office, but the dispatcher instructed A.V. to seek a protective order. When A.V. returned home that evening McNichols was in her driveway. She asked him to leave but he refused and said he would sleep in the driveway. Another neighbor arrived, and an altercation broke out. Several Hocking County Sheriff's Department deputies arrived, and A.V. made an incident report against McNichols with one of the deputies.

         {¶10} In mid-June, McNichols went to A.V.'s residence while she was at work and left a planter with a flower on her porch with a plaque that read, "You are my sunshine." A.V. took the planter inside but left the plaque outside. McNichols came back a few days later, saw the plaque, broke it in half and took it with him. He returned the plaque a few days later and had written on the back of it, "You really was (IS) is my sunshine. That made me feel so warm inside and out. My heart used to be 1. Now cracked just like this. Is no more sunshine. My sunshine left me. Love and care always for AFV [A.V.'s initials]. You are the love of my heart, body, soul."

         {¶11} A.V. testified that because of McNichols's behavior she carries pepper spray and wasp spray for defense, she suffers from anxiety when she sees a silver vehicle similar to the one McNichols drives, and she suffers from nightmares about three times a week due to McNichols's stalking behavior. A.V. testified that although she does not take medication, "Once all of this is over with, I will be going to seek counseling."

         {¶12} McNichols testified and admitted that he did not want his relationship with A.V. to be over. He admitted that he put the planter and plaque on A.V.'s front porch when she was not there and that he wrote the message on the plaque because she had broken his heart. McNichols testified that he circled around A.V. three times - not four -when she was getting gasoline. McNichols admitted that A.V. asked him to leave her alone at least five times before she filed her CPO petition.

         {¶13} The trial court granted A.V. a civil stalking protection order for a period ...

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