D.F. v. Starkey

[Cite as D.F. v. Starkey, 2026-Ohio-1298.]




              IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                                    D.F.,

                                         Petitioner-Appellee,

                                                     v.

                                       MELISSA STARKEY,

                                      Respondent-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 25 BE 0029


                                    Civil Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                    Case No. 25 DR 130

                                         BEFORE:
                   Carol Ann Robb, Cheryl L. Waite, Katelyn Dickey, Judges.


                                                JUDGMENT:
                                                  Affirmed.



D.F., pro se.

Atty. Bonnie R. Conaway, B. Conaway at Law, LLC, for Respondent-Appellant.



                                             Dated: April 9, 2026
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Robb, J.

       {¶1}   Respondent-Appellant Melissa Starkey appeals the decision of the Belmont
County Common Pleas Court granting a civil stalking protection order against her as
requested by Petitioner D.F. Respondent contests the sufficiency and the weight of the
evidence on the elements of menacing by stalking, upon which the order of protection is
based, and also contends the five-year duration of the order was an abuse of discretion.
For the following reasons, the trial court’s judgment is affirmed.
                                  STATEMENT OF THE CASE
       {¶2}   On April 28, 2025, Petitioner filed a pro se petition for a civil stalking
protection order against Respondent. The next day, the court held an ex parte hearing,
issued a temporary protection order, and set the full hearing for the next week. (4/29/25
J.E.). The parties then obtained attorneys. Continuances by the defense and then
Petitioner were eventually followed by a June 5, 2025 hearing.
       {¶3}   Respondent testified she knew Petitioner for approximately ten years,
noting Petitioner’s husband would bring Petitioner to holiday events at Respondent’s
house. (Tr. 6, 67). Respondent was previously married to Petitioner’s husband (for 24
years), had children with him, was still friends with him, and performed some work at his
business. Id. at 6, 66.
       {¶4}   Respondent said they had no issues until Petitioner “served Petitioner’s
husband with papers on Valentine’s Day,” “filed for divorce,” and asked to be removed
from the family group chat. Id. at 6, 9, 67. Petitioner, however, clarified she obtained but
did not file dissolution papers in February 2025, after her husband had an affair, and her
husband thereafter filed for divorce in May. Id. at 41-46.
       {¶5}   Respondent believed Petitioner started causing problems for the family
such as by trying to make Petitioner’s husband “look like a bad person” and “talking about”
Respondent or threatening to call the IRS on her. Id. at 9, 67-68. In response, Petitioner
testified the IRS comment was made to her own husband about him signing her name on
their tax returns. Id. at 49.




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       {¶6}   On April 21, 2025, Respondent texted Petitioner to say, “When this is all
over, I am telling the world what kind of person you really are. Hope you will be prepared
for that.” Id. at 15 (Ex. 4). Apparently following through with the warning, Respondent
posted a comment on social media accusing Petitioner of failing to report an incident
involving a minor many years ago, which prompted a third-party’s response expressing
outrage about Petitioner.     Id. at 12-13, 73 (with the court admitting into evidence
Respondent’s post and the response in Ex. 2). Although this screenshotted portion of
posts did not use Petitioner’s name, Respondent acknowledged the conversation was
about Petitioner, and the conversation shows the third-party commenter knew who was
being discussed. Id. at 12-13. Respondent testified she did not know why this would
upset anyone when it was “the truth.” Id. at 13, 77 (the closing argument of Petitioner’s
counsel asked the court to remember Respondent’s “vile” demeanor while testifying about
this subject). Due to the sensitive nature of the post, we will not further discuss it except
to note Petitioner’s testimony explained the situation did not rise to a reportable level, was
an extremely private matter, and was published by Respondent to inflict harm to her (and
on the former minor). Id. at 33-34, 42-43.
       {¶7}   During the week before the Monday, April 28 petition was filed, Respondent
learned a bar owner saw Petitioner at a store, was asked by Petitioner if he was hiring,
and was contemplating hiring Petitioner as a bartender. In addition to working for her ex-
husband and owning multiple businesses (with thirty employees), Respondent said she
“helped” at the bar in Barton, Ohio on Thursdays (for the weekly raffle and marketing).
Id. at 11-12, 16-17, 69. She went to high school with the bar owner, knew him for 35
years, and considered him a friend (who also came to holidays at her house). Id. at 16.
Respondent testified she was upset the bar owner would consider hiring Petitioner and
upset Petitioner would ask him for employment since Respondent not only helped at the
bar and lived two miles away, but was also “there all the time.” Id. at 16-17. She therefore
went to the bar on a Friday afternoon while her stepdaughter was working and called the
bar owner, who was not present at the time. Id. at 68.
       {¶8}   According to the bar owner’s testimony, Respondent told him, “She can’t
work for you. I do not want her to work for you.” When he asked why, she said Petitioner




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and Petitioner’s husband were getting divorced. Id. at 21. When he asked what that had
to do with Petitioner working at the bar, Respondent made the following statements:
       It’s got a lot to do with it. I’m not going to get into it . . . If you hire her, I’m
       quitting. I won’t help you anymore . . . Every day that she works, I will send
       [friend A] or myself to come down there and kick her ass . . . And you know
       the damage we can do before the sheriff’s office get there.
(Emphasis added). Id. at 22. When the bar owner chastised Respondent for making
these threats, she replied by saying he was “a horrible bar owner” and then “went on and
on just said that every time [Petitioner] worked, that I would have a problem.” Id.
       {¶9}    The bar owner also noticed Respondent made a Facebook post about the
situation. Respondent admitted she made the following post:
       People have lost their ever loving mind if they think it’s a good idea to try to
       get a job where I hang out at and help out at all the time. When said person
       wants to fuck with me and my family. Have you timed how long it takes for
       the SO to respond there? I’m not sure if you think you’re being cute but I
       will reassure you that until you have fucked with a true Baronian you have
       no idea of how the town will stick together.
Id. at 7-8 (Ex. 1).1 Respondent acknowledged she used “SO” to mean Sheriff’s Office
and she used the word “people” to mean Petitioner. Id. at 8-10.
       {¶10} Respondent emphasized she blocked Petitioner from her Facebook access
so Petitioner could not directly view Respondent’s posts. Id. at 67. However, in addition
to the bar owner noticing the post, multiple people “liked” the post, and friend A
(mentioned in the call to the bar owner) replied by posting a meme.
       {¶11} When the bar owner called Petitioner to tell her he could not hire her,
Petitioner asked the reason. The bar owner thus told her he did not want anyone getting
hurt in his bar while relaying the content of Respondent’s threat to Petitioner.                He
described Petitioner, upon learning this, as extremely concerned, upset, and crying. He
said she sounded afraid, and he specified she was crying about the threats, not about the




1 Petitioner assumed Respondent’s use of the term “Baronian” was meant to say Bartonian, which she

assumed referred to people who grew up in the town Barton. Id. at 36.


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job. Id. at 22, 24. When Petitioner asked what she should do, he told her, “if I were you
and knowing [Respondent], I would go and get a protection order.” Id. at 23.
       {¶12} The bar owner confirmed he had been a friend of Respondent for a long
time but said, “sometimes the hardest thing to do is the right thing.” Id. at 24. After
Petitioner filed for a protection order, Respondent texted the bar owner to say she quit;
her stepdaughter quit shortly thereafter. Id. at 23. The bar owner then hired Petitioner.
Id. at 26.
       {¶13} They learned Respondent began making critical posts on certain nights
about coming to the bar; the bar owner noted the posts always seemed to be when
petitioner was scheduled to work, as if Respondent acquired the schedule. Id. at 25, 38.
For instance, one sequence of posts commenced when friend A dropped a pin on a map
of the bar’s location along with the name of the bar and said, “Gonna check out the bad
service.”    When a commenter replied by asking whether friend A was working,
Respondent commented, “they don’t like our kind there working.” Id. at 13-14, 74 (Exhibit
3, partially admitted by the trial court as to Respondent’s comment and posts giving her
comment context). Respondent testified “our kind” meant herself. Id. at 15.
       {¶14} Respondent testified she placed the call with the bar owner on
speakerphone while on the porch of the bar with others present, including her step-
daughter (who was working at the bar at the time), her daughter (who was on the phone
with someone else at the time), two customers, and a cook. Id. at 18-19. Respondent
testified, “what I said was if she was hired there that I would come down there, sit there,
and cause a scene every single time.” (Emphasis added.) Id. at 17.
       {¶15} She said this was not a threat of bodily harm and claimed she did not
threaten to “kick [Petitioner’s] ass” while theorizing the bar owner was lying because he
wanted to date Petitioner. Id. at 17-18. Both the bar owner and Petitioner testified they
were not romantically involved. Id. at 26, 33.
       {¶16} Respondent’s stepdaughter (the daughter of Respondent’s current
husband) testified she was the one who told Respondent about the bar owner potentially
hiring Petitioner. She said she heard “the majority” of the phone call while she was
working but sitting on the porch of the bar with Respondent who had the phone on
speaker. Id. at 51-52, 54. According to the stepdaughter’s testimony, Respondent told



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the bar owner that hiring Petitioner “was going to cause a lot of problems” and “was going
to cause a confrontation” due to the “situation with her ex-husband and just that it wasn’t
very fair.” Id. at 53. The stepdaughter said she did not hear threats or a reference to the
sheriff’s office in the call; however, she also noted she did not hear the “very end” as she
left to wait on a customer; she also said she only remembered “bits and pieces” as it was
weeks ago. Id. at 52-56.
       {¶17} Respondent’s daughter (Petitioner’s stepdaughter) then testified about
being on the phone with her boyfriend while also listening to Respondent’s phone call
with the bar owner. Id. at 61-62. She acknowledged hearing Respondent tell the bar
owner she “would cause a scene that like sheriffs would have to come” but opined this
was not a threat against anyone. Id. at 63. She said Respondent was “[n]ot really yelling”
when complaining to the bar owner, “everything she’s doing to my children’s dad . . .
You’re betraying me.”      Id. at 63-64.    The daughter also acknowledged she heard
Respondent mention friend A but believed this merely referred to how none of them would
patronize the bar if he hired Petitioner. Id. at 64.
       {¶18} Petitioner testified one reason she filed the petition for a protection order
was because the words Respondent spoke to the bar owner constituted threats to
physically harm her whenever she was at work. She explained, “So at that point I felt
anywhere I would be she would be wanting to harm me.” In addition, Petitioner said the
social media posts made her fearful, afraid, and upset. Id. at 32. She testified to her
belief that the question Respondent posed about how long it would take the sheriff’s office
to arrive at the bar was a threat of physical harm. Id. at 33.
       {¶19} Petitioner said she was also “absolutely” afraid of friend A, who was
Respondent’s best friend mentioned in the phone call to the bar owner.           Id. at 36.
Petitioner called the sheriff’s office after hearing from the bar owner. She testified, just
as the bar owner recommended, the sheriff’s office also advised her to get a protection
order from the court when it opened the next week. Id. at 34, 37.
       {¶20} In explaining her fear of imminent physical harm, she noted Respondent
“likes to brag about beating people up” (including the first wife of Petitioner’s husband).
Id. at 37. Petitioner testified that due to Respondent’s conduct, she has attempted to
avoid Respondent by not going “anywhere” in town besides her regular day job (where



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she works from home or the home of her boss) and the new bartending position (her
second job). Id. at 34-35. She indicated she spends time with her mother (at her mother’s
house, shopping, or at Bingo) to avoid Respondent, to get out of the house she is still
sharing with her husband, and to provide companionship because her father recently
died. Id. at 35, 39, 46-48. Petitioner said she switched stores, traveling to a store 15
minutes past her mother’s house, which she said was not convenient but helped her avoid
Respondent. Id. at 35. She also said she installed additional house cameras after the
threats. Id. at 36-36, 44.
       {¶21} Petitioner noted she started counseling in January 2025, prior to the threats,
because she was struggling with whether to end her marriage after discovering her
husband’s affair. However, she also testified to attending extra counseling sessions due
to Respondent’s conduct. Id. at 43-45. She said she “needed a mental day” and missed
a day of work after the threats. Id. at 44.
       {¶22} In announcing the protection order would be issued, the court found
sufficient evidence of two or more incidents of conduct by Respondent closely related in
time that threatened Petitioner, causing her to “anticipate immediate and present danger.”
The court described the incidents as “outrageous, to say the least.” Id. at 79. The court
opined the record clearly showed Petitioner genuinely fears Respondent will cause her
physical harm, noting “I don’t know how else you interpret” the comments about coming
to the bar to “kick her ass” and about how long it would take the sheriff’s office to arrive.
Id. at 79-80. The court reiterated, “I don’t know how else you can put those two things
together and not think that you would not [sic] cause somebody to fear you’re going to
cause them harm or cause them mental distress.” The court also opined there was
“ample evidence” establishing mental distress. Id. at 79. The court indicated the bar
owner’s testimony was credible. Id. at 80. After hearing arguments on the order’s
duration, the court chose five years, as requested by Petitioner, but announced the intent
to retain jurisdiction to modify the duration. Id. at 81.
       {¶23} On June 9, 2025, the court issued the protection order finding by a
preponderance of the evidence Respondent knowingly engaged in a pattern of conduct
that caused Petitioner to believe Respondent “will cause physical harm or cause or has
caused mental distress” (and found the terms were equitable, fair, and necessary to



Case No. 25 BE 0029
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protect Petitioner from stalking offenses). The court also checked a box (on the form
order) finding by clear and convincing evidence Petitioner reasonably believed
Respondent’s conduct endangered the health, welfare or safety of Petitioner or a family
or household member and presented a continuing danger to Petitioner or a family or
household member (and found the terms were equitable, fair, and necessary to protect
Petitioner from continuing danger).
       {¶24} Among other terms, Respondent was barred from contacting Petitioner,
being within 500 feet of Petitioner, or entering the grounds of her residence or place of
employment. (No firearm restriction was imposed.) The court made the order effective
until June 5, 2030 (five years from the hearing date) while retaining jurisdiction to amend
the duration. (6/9/25 J.E. 1); (6/9/25 J.E. 2, Order of Protection).
       {¶25} Respondent filed a timely notice of appeal. Respondent sets forth four
assignments of error on appeal: each of the first three assignments of error challenge an
element from the underlying statute and the fourth assignment of error challenges the
duration. There is no appellee’s brief.
                   ASSIGNMENTS OF ERROR ONE–THREE: ELEMENTS
       {¶26} In challenging the trial court’s decision finding Petitioner proved the
elements of menacing by stalking, Respondent sets forth the following assignments of
error on that subject:
              “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
       PETITION FOR A CIVIL STALKING PROTECTION ORDER, AS
       APPELLEE DID NOT PRESENT SUFFICIENT EVIDENCE TO SUPPORT
       A FINDING THAT APPELLANT ENGAGED IN ACTS OR A PATTERN OF
       CONDUCT OF MENACING BY STALKING.”
              “THE TRIAL COURT ERRED BY FINDING THAT APPELLANT
       KNOWINGLY CAUSED APPELLEE TO BELIEVE THAT THE OFFENDER
       WILL CAUSE PHYSICAL HARM TO HER.”
              “THE TRIAL COURT ERRED BY FINDING THAT APPELLANT
       KNOWINGLY CAUSED MENTAL DISTRESS TO THE APPELLEE.”
       {¶27} A petitioner can request a civil stalking protection order by alleging an adult
respondent engaged in a violation of R.C. 2903.211 against the person to be protected



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by the order. R.C. 2903.214(C)(1). The statute cited therein defines the offense of
menacing by stalking. R.C. 2903.211(B). The menacing by stalking statute initially
provides:
       No person by engaging in a pattern of conduct shall knowingly cause
       another person to believe that the offender will cause physical harm to the
       other person or a family or household member of the other person or cause
       mental distress to the other person or a family or household member of the
       other person.
R.C. 2903.211(A)(1).
       {¶28} “In addition to any other basis for the other person's belief that the offender
will cause physical harm to the other person . . . or mental distress to the other person or
the other person's family or household member, the other person's belief or mental
distress may be based on words or conduct of the offender that are directed at or identify
a[n] . . . organization that employs the other person.” Id. The menacing by stalking statute
also prohibits using any written communication or electronic method of transmitting
information to post a message with purpose to violate (A)(1) or with purpose to incite
another to do so. R.C. 2903.211(A)(2) (including via computer or telecommunications
device), (D)(6), citing R.C. 2913.01 (defining devices and systems).
       {¶29} “[W]hen granting a protection order, the trial court must find that petitioner
has shown by a preponderance of the evidence” the required elements. Felton v. Felton,
79 Ohio St.3d 34, 42 (1997) (where the elements involved whether the petitioner or her
family or household members were in danger of domestic violence), applying R.C.
3113.31(D) (a similar domestic violence protection order statute, which says to proceed
as in a normal civil action); see also R.C. 2903.214 (D)(2) (schedule a full hearing after
the ex parte order), (3) (if no ex parte order, “proceed as in a normal civil action and grant
a full hearing on the matter”), (E)(1)(b) (specifying the clear and convincing evidence
standard of proof only for the electronic monitoring option), (G)(1) (applying the Rules of
Civil Procedure to the full hearing).
       {¶30} A preponderance of the evidence is defined as the greater weight of the
evidence or evidence that leads the trier of fact to find the existence of a contested fact
is more probable than its nonexistence. State v. Stumpf, 32 Ohio St.3d 95, 102 (1987).



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“The greater weight may be infinitesimal, and it is only necessary that it be sufficient to
destroy the equilibrium.” Id., quoting Travelers' Ins. Co. v. Gath, 118 Ohio St. 257, 261
(1928). As the preponderance of the evidence standard is less than clear and convincing
evidence, there is no requirement to produce a “firm belief” in the mind of the trier of fact.
See Cross v. Ledford, 161 Ohio St. 469, 477 (1954). And, of course, the relevant
preponderance of the evidence standard is much less than the beyond a reasonable
doubt standard, which would be the required standard of proof for a criminal charge of
menacing by stalking. See id.
       {¶31} Respondent’s arguments on the elements of menacing by stalking are
comprised of challenges to both the sufficiency and the weight of the evidence. See
generally Felton at 43 (where the Supreme Court concluded, “our review of the record
shows sufficient, credible evidence to support” the required elements). Subsequently to
cases such as Felton, the Ohio Supreme Court confirmed how weight and sufficiency are
distinct concepts in civil law, just as they are distinct concepts in criminal law. Eastley v.
Volkman, 2012-Ohio-2179, ¶ 9-10, 15-17, 23 (noting the term “some competent, credible
evidence” was misinterpreted as a merger of the concepts); see also State v. Thompkins,
78 Ohio St.3d 380, 386-387 (1997) (sufficiency of the evidence and weight of the evidence
are distinct concepts with different tests).
       {¶32} Accordingly, the same sufficiency test from criminal precedent applies to a
civil case, with adjustment for the standard of proof. Eastley at ¶ 19, 23. Whether the
evidence is legally sufficient to sustain a judgment is a question of law dealing with
adequacy. Id. at ¶ 11, citing Thompkins at 386. Sufficient evidence exists if, after
construing all evidence and inferences in the light most favorable to the petitioner, any
rational trier of fact could find the elements by the requisite standard of proof. State v.
Goff, 82 Ohio St.3d 123, 138 (1998) (sufficiency); State v. Filiaggi, 86 Ohio St.3d 230,
247 (1999) (reasonable inferences are part of sufficiency); Jackson v. Virginia, 443 U.S.
307, 319 (1979) (consider all evidence in the light most favorable to the prosecuting party,
including reasonable inferences, to ascertain if any rational trier of fact could find the
elements established). Notably, circumstantial evidence inherently possesses the same
probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485 (2001).




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       {¶33} A sufficiency analysis does not involve an evaluation of witness credibility,
as the question is whether the evidence is sufficient if it is believed. State v. Yarbrough,
2002-Ohio-2126, ¶ 79, 82; State v. Murphy, 91 Ohio St.3d 516, 543 (2001).                  In
accordance, it has been observed that sufficiency involves the prosecuting party’s burden
of production on the elements, rather than the burden of persuasion, which is pertinent
when evaluating the weight of the evidence. Thompkins at 390 (Cook, J., concurring).
       {¶34} Distinctly, weight of the evidence concerns “the effect of the evidence in
inducing belief” with the corresponding review evaluating “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.” Eastley at ¶ 12, quoting Thompkins at 387. When a party argues a judgment
is contrary to the manifest weight of the evidence, the appellate court reviews the entire
record, weighs the evidence including reasonable inferences, considers the credibility of
witnesses, and determines whether, in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the judgment must be
reversed and a new trial ordered.         State v. Lang, 2011-Ohio-4215, ¶ 220, citing
Thompkins at 387.
       {¶35} The appellate court’s discretionary power to grant a new trial on manifest
weight grounds is limited to the “exceptional” case, one where the evidence weighs
“heavily” against a finding of guilt. Id. “[T]he weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” State v. Hunter, 2011-
Ohio-6524, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of
the syllabus. This is because the trier of fact occupies the best position from which to
weigh the evidence and judge the witnesses’ credibility by observing their gestures, voice
inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
“We therefore generally proceed under the premise that when there are two fairly
reasonable views of the evidence or two conflicting versions of events, neither of which
is unbelievable, we do not choose which one we believe is more credible.” State v. Carter,
2017-Ohio-7501, ¶ 105 (7th Dist.), citing State v. Gore, 131 Ohio App.3d 197, 201 (7th
Dist. 1999).
       {¶36} First, Respondent focuses on the “pattern of conduct” element of menacing
by stalking within R.C. 2901.211(A)(1) (“by engaging in a pattern of conduct shall



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knowingly cause another person to believe that the offender will cause physical harm to
the other person or a family or household member of the other person or cause mental
distress to the other person or a family or household member of the other person”).
Criticizing the trial court’s interpretation of her Facebook post in Exhibit 1 (about how long
it takes the sheriff’s office to respond to a call at the bar, which we analyze further below),
Respondent concludes this should not be considered an “incident” for the pattern of
conduct element. She then criticizes the trial court’s conclusion regarding her phone call
to the bar owner (which we also analyze further below), and she likewise concludes this
should not be considered an incident for the pattern of conduct element.
       {¶37} The menacing by stalking statute defines “pattern of conduct” as including
“two or more actions or incidents closely related in time” (regardless of whether there has
been a prior conviction based on any of those actions or incidents). R.C. 2903.211(D)(1).
The Ohio Supreme Court has explained: “In determining what constitutes a ‘pattern of
conduct,’ the court must consider all actions or incidents, even if some of them, when
viewed in isolation, do not seem threatening.” State v. Crawl, 2025-Ohio-2799, ¶ 15; see
also Miller v. Leone, 2024-Ohio-1325, ¶ 13, 29 (7th Dist.) (in discussing the physical harm
option, we pointed out a pattern of conduct may be shown with examples of statements
that could be interpreted as physical threats taking into consideration all circumstances,
regardless of whether an act, in isolation, does not appear particularly threatening).
       {¶38} Accordingly, each incident need not be independently exchangeable with
the “pattern of conduct” element in the menacing by stalking statute. See Crawl at ¶ 15-
16. In other words, the test is not whether Respondent’s posting of the social media
message in Exhibit 1 itself and whether Respondent’s call to the bar owner itself each
independently showed Respondent knowingly caused Petitioner to believe she will cause
her (or another relevant person) physical harm or mental distress.
       {¶39} Regardless, as further explained below, the two incidents each
independently satisfied the other elements even under Respondent’s view of the analysis.
Furthermore, other relevant evidence was presented on more than the two incidents
reviewed by Respondent, which also provide additional context for those two incidents.
We incorporate our Statement of the Case above for a detailed recitation of the facts. For
instance, Respondent sent the text message in Exhibit 4 to Petitioner, warning her to be



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prepared because she soon would be “telling the world what kind of person you really
are.”   She then posted the highly anxiety-inducing disclosure in Exhibit 2 with an
incendiary accusation about Petitioner (which according to Petitioner was untrue) in
response to another person’s social media comment. The friend she mentioned in the
phone call to the bar owner posted the comment in Exhibit 3 about going to the named
bar to “check out the bad service” with a map containing a pin dropped at the location
(which the court found relevant for context), and Respondent joined this online
conversation to add a comment about the bar “not liking our kind there working.” This
indicated Respondent was publicly placing blame on Petitioner for Respondent no longer
working at the bar. (It also suggested friend A was on board with helping to distress
Petitioner at work just as Respondent warned the bar owner over the phone).
        {¶40} All of this evidence can be considered in determining Respondent engaged
in a pattern of conduct. Whether the pattern of conduct was instigated by the proper
mental state and whether this caused one of the remaining elements are subsequent
questions.
        {¶41} This leads to Respondent’s argument about the evidence presented to
establish her mens rea and to establish that her intent was successful. That is, she
disputes the evidence showed that by engaging in the pattern of conduct, she knowingly
and actually caused Petitioner to believe she will cause physical harm or mental distress
to Petitioner or a family or household member. She points to her testimony that she
blocked Petitioner on Facebook and concludes this precluded her social media comments
from knowingly causing harm to Petitioner. As to the phone conversation with the bar
owner, she says this was a private conversation with a close friend, not a direct threat
voiced to Petitioner.
        {¶42} “A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such circumstances
probably exist.”   R.C. 2901.22(B).    As intent dwells in the mind of the defendant,
establishing the mens rea revolves around an evaluation of the totality of the surrounding
facts and circumstances, and the defendant’s mental state can be proven by inference.
Treesh, 90 Ohio St.3d at 484-485 (direct evidence of a defendant’s purposeful intent to



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kill is rarely available, but circumstantial evidence inherently possesses the same
probative value as direct evidence).
       {¶43} A rational person could find Respondent was aware the bar owner would
probably tell Petitioner what she said in the phone call. See R.C. 2901.22(B). This result
was foreseeable, as was Petitioner’s reaction.          Crawl, 2025-Ohio-2799, at ¶ 12.
Respondent admitted she knew the bar owner was considering hiring Petitioner who
asked him for a job; i.e., she knew he would be contacting Petitioner soon. Predictably,
the bar owner did then tell Petitioner what Respondent said in explaining why he decided
not to hire her. Moreover, Respondent’s own evidence disclosed this phone call was
made on speakerphone in a public place with other people present.
       {¶44} According to the bar owner’s testimony, Respondent told him she would quit
if he hired Petitioner and voiced the following threat: “Every day that she works, I will send
[friend A] or myself to come down there and kick her ass . . . And you know the damage
we can do before the sheriff’s office get there.” (Tr. 22).
       {¶45} In addition, Respondent made a Facebook post about Petitioner trying to
get a job at the bar that Respondent was claiming as her territory while opining
Respondent intended to “fuck with” Petitioner and threatening Petitioner with the following
ominous comments: “Have you timed how long it takes for the SO to respond there? I’m
not sure if you think you’re being cute but I will reassure you that until you have fucked
with a true Baronian you have no idea of how the town will stick together.” Id. at 7-8.
Respondent admitted “SO” meant sheriff’s office.               Multiple individuals “liked”
Respondent’s post. Respondent’s very words clearly indicate an intent for Petitioner to
learn of the threats within the post and to have fear. “Explicit threats are not necessary
to establish the elements of menacing by stalking” as pointed out by the Ohio Supreme
Court. Crawl at ¶ 11, 15, 18.
       {¶46} Next, we emphasize Petitioner testified she feared Respondent would
physically assault her due to Respondent’s conduct and the totality of the circumstances.
Combined with the other conduct reviewed above, “some rational person” could find by
engaging in a pattern of conduct Respondent acted knowingly to cause Petitioner to
believe she would cause her physical harm and did cause Petitioner to believe
Respondent would cause her physical harm. Compare Caban v. Ransome, 2009-Ohio-



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1034, ¶ 18 (7th Dist.) (where there was no testimony the petitioner feared for her physical
safety but rather she feared the respondent would keep asking why she ended their long-
term relationship, we noted a “threat” to approach a person for conversation is not a threat
of physical harm), abrogated on other grounds by Z.J. v. R.M., 2025-Ohio-5662, ¶ 10, 12,
46-47 (where the Ohio Supreme Court found actual mental distress need not be suffered,
as discussed further below). Furthermore, the evidence adequately indicated Petitioner
reasonably believed Respondent would physical harm her, and the trial court’s weighing
of the evidence on reasonableness of her belief was valid and rested within the province
of the fact-finder. (Tr. 79-80); see also Crawl at ¶ 11.
       {¶47} Respondent focuses on mental distress in her third assignment of error;
however, if sufficient evidence supports the belief of the physical harm option and the
decision is not contrary to the manifest weight of the evidence, then the mental distress
option need not be reached. R.C. 2903.211(A)(1); see also generally Z.J. at ¶ 1-3, 9. In
any event, an alternative decision on the mental distress option was supported by
sufficient evidence and was not contrary to the manifest weight of the evidence.
       {¶48} The menacing by stalking statute defines mental distress as: “(a) Any
mental illness or condition that involves some temporary substantial incapacity; [or] (b)
Any mental illness or condition that would normally require psychiatric treatment,
psychological treatment, or other mental health services, whether or not any person
requested or received psychiatric treatment, psychological treatment, or other mental
health services.” R.C. 2903.211(D)(2). We have explained mental distress is more than
mere mental stress or annoyance. R.G. v. R.M., 2017-Ohio-8918, ¶ 17 (7th Dist.); Caban
at ¶ 29.
       {¶49} A temporary incapacity is substantial if it significantly impacts the person’s
daily life. R.G. at ¶ 17. Evidence of changed routine, an inability to sleep, or difficulty
concentrating on work are considerations in determining the existence of a temporary
substantial incapacity under subdivision (a) or in determining the existence of a mental
condition that would normally require mental health services under subdivision (b). Id.
Consultation with a physician or mental health provider can be a consideration in
evaluating mental distress, although not required. Id. Moreover, the trier of fact may rely




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on personal experience and knowledge to determine the effects of a respondent’s
conduct. Id.; Caban at ¶ 29.
       {¶50} Notably, in making these statements about mental distress, we were
applying now-defunct district precedent that actual mental distress must have been
suffered by Petitioner. R.G. at ¶ 12-15 (contrasting it with the other option: causing
Petitioner to believe the offender will cause physical harm in the future); Caban at ¶ 23-
24 (maintaining prior district law opining “cause another person to believe that the
offender will cause” only modified “physical harm” and not “mental distress”), applying
Darling v. Darling, 2007-Ohio-3151, ¶ 20 (7th Dist.). However, the Ohio Supreme Court
recently held that actual mental distress is not required under the plain language of the
statute. Z.J., 2025-Ohio-5662, at ¶ 18, 31 (in the menacing by stalking statute, “believe”
modifies both “physical harm” and “mental distress”).
       {¶51} The Supreme Court specifically abrogated the portion of our decision in
Caban at ¶ 23-24 on showing of actual mental distress. Id. at ¶ 10, 12, 47 (in ruling on a
certified conflict). Consequently: “a petitioner need not show that he has suffered actual
mental distress—but only a belief that the respondent will cause him mental distress—to
obtain a civil stalking protection order.” Id. at ¶ 46. The trial court’s order essentially
utilized this principle when finding Respondent “knowingly engaged in a pattern of
conduct that caused Petitioner to believe that Respondent will cause physical harm or
cause or has caused mental distress . . .” (Emphasis added.) (6/9/25 J.E., Order of
Protection).
       {¶52} Here, the bar owner’s testimony described Petitioner as extremely
concerned, upset, afraid, and crying about Respondent’s threats.         When Petitioner
despondently asked what she should do, he told her, “if I were you and knowing
[Respondent], I would go and get a protection order.” Id. at 23. Likewise, Petitioner
herself testified Respondent’s conduct made her fearful, afraid, and upset. Id. She called
the sheriff’s office and was again advised to get a protection order. Petitioner also noted
Respondent bragged in the past about beating up a former wife of Petitioner’s husband.
       {¶53} Furthermore, Petitioner testified to attending extra counseling sessions due
to Respondent’s conduct and missing a day of work due to the threats. Contrary to
Respondent’s contention, the fact that she began counseling three months before the



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threats due to her husband’s infidelity does not diminish the testimony that she also used
her counselor for sessions related to Respondent’s behavior.         Moreover, Petitioner
testified she has avoided going places locally so as not to run into Respondent. For
instance, she switched her shopping to a store requiring her to travel 15 minutes past her
mother’s house, which she said was not convenient but was carried out in order to avoid
Respondent. She also said she installed extra cameras after the threats. Contrary to
Respondent’s contention, the fact that Petitioner mentioned she was also spending more
time with her mother because her father recently died does not take away from her
testimony on changed routines.
       {¶54} Combined with this testimony, the trial court could also consider personal
experience and knowledge of ordinary life in making the mental distress determinations
from the totality of circumstances surrounding the pattern of conduct and the case as a
whole. See Crawl, 2025-Ohio-2799, at ¶ 13; R.G., 2017-Ohio-8918, at ¶ 17 (7th Dist.);
Caban, 2009-Ohio-1034, at ¶ 29 (7th Dist.). There was evidence of mental distress.
       {¶55} Regardless, a rational trier of fact could most certainly conclude
Respondent, through her pattern of conduct, knowingly caused Petitioner to believe
Respondent would cause her mental distress. Again, as declared by the Ohio Supreme
Court, a petitioner need only show a belief the respondent will cause her mental distress,
not that the respondent already caused her mental distress. See Z.J., 2025-Ohio-5662,
at ¶ 46. In accordance, the state presented sufficient evidence of the elements of the
offense.
       {¶56} As for the weight of the evidence, the trial court occupied the best position
from which to judge the credibility of the witnesses by viewing their gestures, demeanor,
voice inflections, eye movements, and other indicators of truthfulness or untruthfulness.
See Seasons Coal, 10 Ohio St.3d at 80. After watching Petitioner’s testimony, the trial
court found her credible.    It was the trial court’s prerogative to do so and to find
Respondent’s testimony lacked credibility. See id.; Hunter, 2011-Ohio-6524, at ¶ 118
(the weight to be assigned to the evidence and the witnesses’ credibility are primarily for
the trier of the facts). For instance, the trial court reasonably discounted Respondent’s
contention that her post about the long response time for the sheriff’s office to the bar’s




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location was not physically threatening but was merely meant to say she would defend
herself.
       {¶57} In addition, the court disbelieved Respondent’s claims that she did not say
she was “going to kick [Petitioner’s] ass” and the bar owner was lying. The court found
the bar owner credible, noting he “doesn’t have a dog in this fight” and was a friend of
Respondent and her family.      It was also for the trial court to find the testimony of
Respondent’s witnesses lacked credibility or to merely take notice that their testimony
indicated they did not fully hear every part of Respondent’s phone call with the bar owner.
Her own witness (her daughter) confirmed she heard Respondent threaten to cause a
scene at the bar such that the sheriff’s office would have to respond if Petitioner started
working there. (Tr. 62-63).
       {¶58} On a manifest weight review, “every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the finding of facts .
. . If the evidence is susceptible of more than one construction, the reviewing court is
bound to give it that interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.” Eastley, 2012-Ohio-2179, at ¶ 21,
quoting Seasons Coal at 80, fn. 3. In reviewing the entire record, weighing the evidence
including reasonable inferences, and considering the credibility of witnesses, it cannot be
said that in resolving conflicts in the evidence, the trial judge clearly lost his way and
created such a manifest miscarriage of justice that the judgment must be reversed and a
new trial ordered. See Lang, 2011-Ohio-4215, at ¶ 220. This is not the “exceptional”
case where the evidence weighs “heavily” against the trial court’s decision. See id.
       {¶59} Contrary to Respondent’s first three assignments of error, there was
sufficient evidence on the elements of menacing by stalking, and the trial court’s decision
was not contrary to the manifest weight of the evidence.
                        ASSIGNMENT OF ERROR FOUR: DURATION
       {¶60} Respondent’s final assignment of error provides:
       “THE TRIAL COURT ABUSED THEIR DISCRETION IN GRANTING THE CIVIL
STALKING PROTECTION ORDER FOR FIVE YEARS.”
       {¶61} Five years is the maximum duration for a civil stalking protection. R.C.
2903.214(E)(2)(a), (b) (then renewable in same manner as the original petition). “The



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precise standard of review of a protection order on appeal depends upon the challenge
being made. “For instance, an abuse of discretion standard of review is employed if the
challenge concerns the scope of the order.” Serdy v. Serdy, 2013-Ohio-5532, ¶ 27 (7th
Dist.). As Respondent recognizes: “The duration of a civil stalking protection order is
within the sound discretion of the trial court and will not be reversed on appeal absent a
showing that the decision was arbitrary, unconscionable or unreasonable.” Taylor v.
Taylor, 2012-Ohio-6190, ¶ 25 (2d Dist.), quoting Jenkins v. Jenkins, 2007-Ohio-422, ¶ 10
(10th Dist.) (finding no abuse of discretion where the trial court increased the duration of
a magistrate’s three-year order to five years).
       {¶62} In applying the abuse of discretion standard of review, we do not substitute
our judgment for that of the trial court unless the decision was arbitrary, unreasonable, or
unconscionable.     Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).                An
unconscionable decision includes one that affronts a sense of decency or justice. See
Hise v. Laiviera, 2018-Ohio-5399, ¶ 29 (7th Dist.). The Ohio Supreme Court defines an
arbitrary decision as one made without consideration of the facts or circumstances. State
v. Beasley, 2018-Ohio-16, ¶ 12. “[M]ost instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.” AAA Ents. Inc. v. River Place Community Urban Redevelopment. Corp., 50
Ohio St.3d 157, 161 (1990). “A decision is unreasonable if there is no sound reasoning
process that would support that decision.” Id.
       {¶63} At the protection order hearing, after announcing the order of protection
would be granted, the trial court asked for arguments about the order’s duration.
Petitioner requested five years. (Tr. 80). In response, Respondent’s attorney opined five
years “was way over the top for this” and asserted Respondent’s conduct was related to
Petitioner’s divorce from Respondent’s ex-husband while estimating those proceedings
should be over in a year. Petitioner’s attorney replied by noting the divorce could actually
take two years (and thus, if the defense was successful in obtaining a duration in line with
the divorce, two years would seem more appropriate). The trial court indicated difficulty
understanding Respondent’s argument that Petitioner’s marital situation should
correspond to the duration of the order binding Respondent and rejected the argument.
The court chose a duration of five years and specifically pointed out it was retaining



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jurisdiction to modify the duration.      Id. at 81; (6/9/25 J.E. 1 & 2); see also R.C.
2903.214(J)(1)-(2) (speaking of costs in connection with filing the protection order as well
as in connection with modification, dismissal, or withdrawal of it).
       {¶64} Alleging the trial court’s decision on the duration was arbitrary, Respondent
claims the trial court simply chose five years because this is what Petitioner requested.
However, the trial court listened to the arguments on duration and clearly considered the
facts and circumstances of the case before it. Compare Beasley, 2018-Ohio-16, at ¶ 12-
13 (where the Supreme Court found a trial court’s announcement of a blanket policy was
arbitrary as the trial court essentially admitted there was no regard for the facts and
circumstances of the case). As expected, the trial court considered what both sides were
requesting and used the evidence it just heard and summarized to make its decision on
the appropriate length of the order’s effectiveness.
       {¶65} Alleging the trial court’s decision on the order’s five-year duration was
unreasonable, Respondent describes the facts of this case as “incredibly mild” compared
to more extreme cases. We note the duration of a protection order is not necessarily akin
to a criminal sentence where a punishment is often expected to correspond to the severity
of the threatened harm.       For instance, the duration may rationally correspond to a
respondent’s perceived persistent or irrationality. Also, the parties are grown adults (with
adult children), as opposed to a situation involving a teenage or young adult making poor
choices in their early development of maturity and control. In any event, it would fall within
the trial court’s discretion to disagree with the characterization of the facts as mild; the
court opined the facts were quite outrageous. We note to “kick [a victim’s] ass” can result
in serious physical harm in many cases.
       {¶66} Respondent concludes one or two years would be more reasonable, again
connecting her conduct to Petitioner’s divorce and predicting the tension between
Petitioner and Respondent will be over when Petitioner’s divorce is finalized. However,
it was within the trial court’s discretion to reject the rationale of correlating the duration of
the protection order against Respondent to the timeline of the divorce proceedings
between Petitioner and Petitioner’s husband, who was Respondent’s ex-husband. We
note Respondent is herself married, and there is no indication this was some type of
competition for Petitioner’s husband.



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       {¶67} Although the duration is lengthy, we cannot say “there is no sound
reasoning that would support that decision.” AAA Ents., 50 Ohio St.3d at 161 (defining
unreasonable aspect of abuse of discretion). “It is not enough that the reviewing court,
were it deciding the issue de novo, would not have found that reasoning process to be
persuasive, perhaps in view of countervailing reasoning processes that would support a
contrary result.” Id.; see also Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990) (when
applying the abuse of discretion standard, “an appellate court is not free to substitute its
judgment for that of the trial judge”). This assignment of error is overruled.
       {¶68} For the foregoing reasons, Respondent’s assignments of error are
overruled, and the trial court’s judgment granting the civil stalking protection order is
affirmed.


Waite, P.J., concurs.

Dickey , J., concurs.




Case No. 25 BE 0029
[Cite as D.F. v. Starkey, 2026-Ohio-1298.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against
the Respondent-Appellant.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.



                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.