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9th District reverses domestic violence CPO ruling

TRACEY BLAIR
Legal News Reporter

Published: November 14, 2019

A Medina County trial court erred by issuing a full civil protection order after insufficient evidence was presented at a hearing, the 9th District Court of Appeals ruled recently.
On July 27, 2017, J.D. filed a petition for a domestic violence civil protection order against his brother, G.D., with the trial court entering an ex parte civil protection order on the same day. A full hearing was held on Aug. 10, 2017. G.D. On May 22, 2018, the trial court overruled G.D.’s objections to the magistrate’s decision.
On appeal, G.D. argued the only evidence regarding any threats was the hearsay testimony of J.D., who was not present when alleged threats were made to J.D.’s adult son at his place of work. G.D. also alleged the only other evidence was an unauthenticated copy of an out-of-county police report made by J.D.’s adult son, who did not appear or testify at the hearing.
J.D. testified that G.D. went to the bank where J.D.’s son worked to open an account, but was told to come back the following Monday because his driver’s license had expired. As G.D. was leaving the bank, he allegedly told J.D.’s son: “I’m going to destroy your father … and your family.”
G.D. returned on Monday as requested, but was asked to leave because of the prior incident. He then told the branch manager that J.D.’s son was on drugs and should be fired. J.D. testified that his son was “shaken and angry,” and was afraid of what was going to happen, afraid for his fiancée, and afraid for his parents.
J.D. also testified that the threat made to his son affected him and his wife: they made sure their doors were locked, that the car was in the garage, and looked around in the morning to make sure nothing had happened. He also testified as to G.D.’s history of violence, including assaulting his sister and father and threatening numerous people over the years.
Writing for the court, Ninth District Judge Thomas Teodosio noted G.D. failed to raise any objections to the alleged hearsay testimony.
“J.D. provided testimony that when G.D. encountered J.D.’s son at the bank, he made a threat to ‘destroy’ the family, resulting in fear and apprehension for both J.D. and his son,” Teodosio wrote. “Conversely, G.D. testified that he had never threatened J.D.’s son; rather, he testified that ‘[w]e had words and I says, ‘I hate my brother,’ and I left.’ We are concerned not only by the trial court’s reliance on hearsay testimony, but also by the contradictory nature of the statement given by J.D.’s son to the Berea Police Department.”
According to that statement, J.D.’s son said: “[G.D.] then told me to tell my dad that ‘this isn’t over,’ (referring to a will dispute) and that ‘he was going to destroy his family.’
Taken at face value, the quoted language is directly attributed to G.D. and indicates that the ‘he’ that G.D. is referring to is J.D., Teodosio said in his opinion. In other words, G.D. is warning his brother that it is his brother’s own actions that are destroying his brother’s family.
“Although it is certainly possible that this is not what J.D.’s son meant to communicate in his statement to the police, it is nevertheless what he did write, and in the absence of his own testimony to support an alternative reading, we are left with a statement that contradicts the hearsay testimony offered by J.D.,” Teodosio added. “We are thus left with hearsay testimony of the alleged threat made to J.D.’s son, the statement of J.D.’s son that contradicts the hearsay testimony of the threat, and G.D.’s denial of the threat. Under a manifest weight of the evidence challenge, this court both weighs the evidence and considers the credibility of the witnesses. The evidence offered by the petitioner in this case consisted of hearsay testimony that was itself contradicted by a statement provided by the alleged source of that testimony. The weight, if any, that can be given this tenuous evidence is extraordinarily slight, and is necessarily outweighed by the testimony, albeit limited in its own right, provided by G.D. Under the facts of this case, and specifically limited to the facts of this case, we must therefore conclude the trier of fact clearly lost its way and created a manifest miscarriage of justice.”
The trial court’s judgment was reversed.
Appellate judges Lynne Callahan and Donna Carr concurred. The case is cited J.D. v. G.D., 2019-Ohio-4391.


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