[M.D.], Petitioner-Appellant, v. [J.S.], Respondent-Appellee. (2024)

DECISION

{¶ 1} Petitioner-appellant, M.D., appeals the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations (“trial court”), dismissing her petition for a domestic violence protection order after granting the motion of respondent-appellee, J.S., to dismiss the petition under Civ.R. 41(B)(2). For the following reasons, we reverse and remand.

I. Factual and Procedural Background

{¶ 2} On July 12, 2022, M.D. filed a petition for a domestic violence civil protective order under R.C. 3113.31 against her partner, J.S. In the petition, M.D. alleged that J.S. threatened her, “intimidated [her] into having sex with him” on a continual basis, “always” had a gun “within arm's reach during sex,” subjected her to “unwanted” sexual acts, and engaged in “aggressive & violent” behavior and verbal threats against her. (July 12, 2022 Petition at 4.) The same day, the trial court held an ex parte hearing and issued a temporary order ordering J.S. to have no contact with M.D., among other restrictions. (July 12, 2022 Order of Protection.)

{¶ 3} The trial court held a hearing on M.D.’s petition on April 17, 2023. M.D. testified that she and J.S. had been in a relationship for the last two years. (Apr. 17, 2023 Tr. at 53.) When they met, she was married, and he was the maintenance man at the apartment complex where she lived. Id. at 54. After the relationship began, M.D. stated that “it quickly turned toxic and he started using threatening language.” Id. J.S. told her that “boundaries didn't exist in a relationship,” M.D. recounted, that she was “his baby forever,” and that “there was nothing [she] could do about it.” Id. When M.D. told J.S. she was afraid of him, he responded: “I'll show you afraid. If you think I'm scary now, I'll show you.” Id. at 55. When M.D. attempted to end their relationship, J.S. replied that he could “arrange” to have his friends rob her husband if she tried to leave him. Id. M.D. did not end the relationship because she was “afraid of what he might do” to her or her husband. Id.

{¶ 4} After M.D. divorced her husband, she “briefly” moved in with J.S. at an apartment she had helped him find. Id. at 59. J.S. had lived in the apartment complex where he worked, but told M.D. that he had been asked to leave after “he pulled his gun out on” a neighbor during an argument and “threatened to kill his daughter and dog.” Id. at 58. After a month at the new apartment, M.D. and J.S. moved to a home that he had purchased. Id. at 59.

{¶ 5} M.D. testified that she “never knew what would upset” J.S., and that she “generally felt very scared to be around him based on the things he would say and do.” Id. at 60. When asked for an example, she stated:

There were multiple instances where I woke up with his penis inside of me. The first time I believe I asked him to stop and he got mad. So the other times that it happened, I did not challenge him, I just allowed it to occur once I woke up and realized what was happening.

Id.

{¶ 6} J.S. described such incidents as “sleep rape.” Id. at 102. When asked to describe how J.S. “got mad” after the first such incident, M.D. stated:

He started yelling. He started saying -- he felt it was his right to have access to my body at any time, so he would say, You're my girl. You're supposed to please me. You should deal with it. I should be able to get it whether you want it or not.

Id. at 60.

{¶ 7} According to M.D., J.S. made similar statements “any time he desired sex and [she] refused it,” as well as threatening to “invite his baby mother over to, quote, beat the shit out of” M.D. Id. at 61. M.D. testified that after the first time he made such statements, J.S. “then had his gun laid out on the table” and would repeatedly look at the gun and then back at her. Id. at 70. M.D. believed these actions were “too coincidental for the circumstances surrounding the event.” Id. at 71. This incident occurred early in their relationship, before they lived together. Id. M.D. testified:

From that point forward, it just became apparent to me that the gun was always present and he was very verbal that he kept his gun on him and that that was important to him. The gun would be either in his pocket or eventually down the line in the relationship he got this ankle strap to keep the gun in. When intercourse would begin, he would lay the gun on the bed or very nearby to wherever we were having sex. The gun was also always present on him when he was intoxicated or high.

Id. at 72.

{¶ 8} M.D. also recounted the circumstances that led her to finally leave J.S., which occurred over the night of July 10, 2022. That night, she went out on a date with another person and engaged in consensual sex with him. Id. at 73. As she drove home, M.D.’s car was rear-ended. Id. M.D. called J.S. and he followed her car the rest of the way home. Id. at 73-74. M.D. went inside to take a shower and after she started undressing, J.S. entered the bathroom and saw a handprint on M.D.’s rear end. Id. at 76. According to M.D., J.S. “started throwing things around the room” and “knocked over” a cart. Id. J.S. again threatened to have “his baby mom” physically assault M.D., and told her that she “needed to get the fuck out.” Id.

{¶ 9} M.D. packed her things and placed them and her two dogs into her car. Id. at 77. After getting into the car, she asked J.S. if he wanted her to leave while “[h]oping that he would say, yes, just leave.” Id. at 77. When asked why she asked J.S. if she could leave, M.D. replied: “I felt like I always needed his permission to do anything, because he would get mad if I did something outside of what he deemed acceptable.” Id. After more discussion and “a lot of silence,” J.S. told M.D. “to come back into the house.” Id. at 78.

{¶ 10} M.D. went inside and sat down on the couch, where she “tried to stay as still and as quiet as possible” while she listened to M.D. “express his anger with what had occurred.” Id. at 78. After some time, they both fell asleep on the couch. M.D. awoke “at some point in the night” and saw that M.D. was naked. Id. at 78-79. They began to have sex, but M.D. testified that she did not feel like she was free to get up and leave. Id. at 79. Based on J.S.’s previous statements and the fact that she had “cheated on him that night,” M.D. felt that refusing sex “would have been potentially dangerous for” her. Id.

{¶ 11} The next morning, after J.S. went to work, M.D. called her mother and asked her to help her leave J.S.’s house. Id. at 81. M.D. had never introduced J.S. to her family, in spite of his protestations. Id. at 81-82. When asked why, she replied: “I was embarrassed that I had gotten myself into an abusive relationship and I was fearful of him having access to people that I loved.” Id. at 82. J.S.’s mother insisted on taking her to the police station. Id.

{¶ 12} M.D.’s attorney also questioned James Yoder, a detective in the Sexual Assault Unit of the Division of Police of the City of Columbus. He spoke to M.D. when she contacted the police and advised her to go to an urgent care facility after she told him that she had been sexually assaulted. Id. at 12. After hearing M.D.’s description of her history with J.S. and the incident from the night before, he collected the sexual assault examination kit from the urgent care for testing by the police. Id. at 15. After that, he interviewed J.S., who stated that “this was all a surprise and a shock to him.” Id. at 16. J.S. claimed that he and M.D. “had a very good relationship” and did not fight. Id. J.S. described his interaction with M.D. on the night before she moved out as “make-up sex.” Id. at 17.

{¶ 13} Detective Yoder also interviewed M.D.’s mother, who described M.D. as “extremely frazzled” and “frightened” when she had arrived. Id. at 19. After hearing M.D.’s mother corroborate J.S.’s report, he submitted the case to the prosecutor's office. Id. at 20. The prosecutor declined to present the case to a grand jury. Id. at 27.

{¶ 14} After the conclusion of M.D.’s case, J.S.’s attorney moved the court to dismiss the petition under Civ.R. 41(B)(2). Id. at 121-22. The trial court granted the motion. Id. at 123.

{¶ 15} In a written decision, the trial court set forth findings of fact and reiterated its ruling. (Apr. 17, 2023 Decision & Findings of Fact (hereinafter “Decision”).) The trial court found that M.D. and J.S. had a two-year relationship, and had lived together for about a year. Id. at 1. The trial court noted M.D.’s testimony that J.S. had “never physically threatened or physically struck her,” and the fact that the request for a protective order was not based on allegations of “menacing by stalking or aggravated trespass.” Id.

{¶ 16} According to the trial court, the parties’ relationship “started off troubled” and “ultimately was very toxic.” Id. It noted that M.D. “was afraid to leave the relationship” even before moving in with J.S., who always carried a gun or had one within arm's reach, even while in bed. Id. The trial court described M.D.’s testimony that J.S. had the gun next to him and “on at least two occasions would look at her and then look at his gun” when she first talked about ending the relationship. Id. The trial court also noted J.S.’s threat to have his ex-partner beat up M.D. and rob her and her husband, which made M.D. feel that she could not leave the relationship and “compelled” her to seek a divorce from her husband. Id.

{¶ 17} The trial court recounted M.D.’s complaint about J.S.’s frequent requests for sex and made the following findings:

Petitioner testified that she would wake up with the Respondent's penis inside of her. She testified that she told him on the first occasion that happened that she did not like this, Respondent became angry with her and a fight ensued. Respondent told Petitioner that it was her job to have sex with him as often as he wanted it. Even though Respondent continued this behavior, Petitioner allowed it to occur 1 [and] never again confronted him about the behavior and never told him to stop. Respondent told Petitioner that he believed it was her duty to provide him with sex or he would be tempted to cheat on her. Petitioner testified that Respondent begged her for sex on a constant basis.

Id. at 1-2.

{¶ 18} The trial court found that in the audio recordings M.D. had made of two conversations with J.S., it did “not hear threats of physical harm or that [she] was in fear during the course of the parties’ interactions.” Id. at 2.

{¶ 19} In addition, the trial court made findings regarding M.D.’s testimony about the incident on July 10, 2022, that culminated with her leaving the next morning. The trial court found that M.D. had “lied” to J.S. and gone “out on a date with another man and had sex.” Id. at 2. The trial court noted that M.D. admitted to having cheated, after which J.S. “pushed over a kitchen cart.” Id. J.S. “asked” M.D. to leave, and “she began moving her items and dog to the car.” Id. at 2. The trial court found that “at no time” was M.D. prevented from driving away from the residence or J.S. Id. The trial court found that J.S. “calmly came out to the car and asked [M.D.] to work on the relationship if she promised not to cheat on him again.” Id.

{¶ 20} In its findings detailing the events of that evening, the trial court noted that after M.D. woke up to find J.S. “undressed,” he “took off her shorts and underwear and proceeded to have sex with her.” Id. The trial court stated that M.D. “did not tell [him] to stop and did not resist.” Id. It also noted that J.S. “did not physically injure” M.D. that evening. Id. The trial court also described M.D.’s departure the next morning, during which she turned off the parties’ video doorbell so that J.S. “would not see her moving out,” and her mother's assistance with moving out and taking her to make a report to law enforcement. Id.

{¶ 21} The trial court made a few final findings. It noted that the prosecutor did not send the case to a grand jury after the detective's referral. Id. The trial court found that J.S. had “never physically restrained” M.D. to prevent her from leaving their residence. Id. The trial court noted that before the day she moved out, M.D. had “never called the police for assistance or reported any abuse.” Id. The trial court also found that M.D. “did not speak to domestic violence support system until approximately 2 months prior to July 2022” and “testified that in July 2022 she had begun planning on moving out for approximately 2 months.” Id.

{¶ 22} After viewing the foregoing “facts in a light most favorable” to M.D., the trial court concluded that she was not “able to meet her burden to show” that J.S. had “attempted to cause or recklessly caused her bodily harm, placed her by threat of force in fear of imminent serious physical harm or committed a sexually oriented offense against her,” and therefore denied the petition for a domestic violence civil protection order. Id.

{¶ 23} M.D. appealed and asserts the following assignments of error:

I. The trial court's grant of involuntary dismissal of a Petition for Domestic Violence Protection Order was against the manifest weight of evidence establishing that Appellant was reasonably fearful of imminent serious physical harm when Appellee made past threats of physical harm, carried a firearm at all times, was fired for using the firearm to threaten others, visually referenced his gun during an argument, yelled, clenched his fist, told Appellant that she had to give him sex even if she did not want it, raped her while she was sleeping, and pushed over furniture.

II. The trial court erred by failing to recognize sexual penetration while Appellant was asleep, especially when she indicated non-consent in the past, constitutes the sexually oriented offense of Rape.

III. The trial court erred by failing to identify the totality of the circumstances constituting a pattern of abuse that rendered sex by coercion as an act of Sexual Battery.

II. Standard of Review

{¶ 24} In this appeal, we review a trial court's ruling granting a motion for involuntary dismissal under Civ.R. 41(B)(2) of a petition for a domestic violence protection order filed under R.C. 3113.31. Civil Rule 41(B)(2), which provides the standard for granting a motion for involuntary dismissal during or after a bench trial, states:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

{¶ 25} “In ruling upon a Civ. R. 41(B)(2) motion, it is the function of the trial court to review the evidence and the law.” Levine v. Beckman, 48 Ohio App.3d 24, 27, 548 N.E.2d 267 (10th Dist.1988). As the rule states, the trial court may enter judgment against the plaintiff if it concludes that the evidence cannot prove the plaintiff's claims. See Civ.R. 41(B)(2). This discretion is “not absolute,” however, because the trial court's “decision to dismiss must be guided by the evidence in the case and the pertinent law.” Levine at 27, 548 N.E.2d 267.

{¶ 26} Thus, although “a plaintiff has presented a prima facie case, dismissal still may be appropriate if the trial court finds that the evidence is insufficient to sustain the plaintiff's burden of proof.” Carmen v. Baier, 10th Dist. No. 17AP-443, 2019-Ohio-676, 2019 WL 952040, ¶ 20, citing Levine at 27, 548 N.E.2d 267. Involuntary dismissal is required if the trial court “finds that the plaintiff's evidence is not persuasive or credible enough to satisfy her burden of proof.” Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66, ¶ 9 (10th Dist.). Conversely, “if the trial court finds the plaintiff has proven the relevant facts by the necessary quantum of proof, the motion must be denied, and the defendant must put on evidence in support of its case.” Carmen at ¶ 20, citing Cent. Motors Corp. v. Pepper Pike, 63 Ohio App.2d 34, 49, 409 N.E.2d 258 (8th Dist.1979).

{¶ 27} “An appellate court will not overturn a Civ.R. 41(B)(2) involuntary dismissal unless it is contrary to law or against the manifest weight of the evidence.” Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, 2013 WL 6157232, ¶ 104, citing Whitestone Co. v. Stittsworth, 10th Dist. No. 06AP-371, 2007-Ohio-233, 2007 WL 155299, ¶ 13, and Sharaf v. Youngman, 10th Dist. No. 02AP-1415, 2003-Ohio-4825, 2003 WL 22100140, ¶ 8. This standard applies when reviewing an involuntary dismissal of a petition for a domestic violence protection order brought under R.C. 3113.31. E.g., Shutway v. Shutway, 8th Dist. No. 76737, 2000 WL 146533, *3 (Feb. 10, 2000); Lance-Sepesi v. Goris, 6th Dist. No. WD-02-028, 2003-Ohio-1622, 2003 WL 1702505, ¶ 10.

III. Analysis

{¶ 28} We consider M.D.’s three assignments of error together, as they involve interrelated arguments and arise from the trial court's alleged error in dismissing her petition for a domestic violence civil protection order. M.D. argues that the manifest weight of the evidence demonstrated that she had a reasonable fear of imminent serious physical harm based on the totality of J.S.’s conduct, including his past threats, possession of a weapon, demeanor, and the pattern of nonconsensual sex acts that she believes the trial court erroneously failed to recognize as rape. (Brief of Petitioner-Appellant at 24-29.) In response, J.S. argues that the trial court, which was the trier of fact, “simply did not believe” M.D., whose testimony he describes as “not reasonable” and “overstated.” (Brief of Respondent-Appellee at 16-17.)

{¶ 29} Under R.C. 3113.31(C), a person may file a petition for a domestic violence civil protection order in the domestic relations division of a common pleas court. The petition must “contain or state” the following:

(1) An allegation that the respondent engaged in domestic violence against a family or household member of the respondent or against a person with whom the respondent is or was in a dating relationship, including a description of the nature and extent of the domestic violence;

(2) The relationship of the respondent to the petitioner, and to the victim if other than the petitioner;

(3) If the petition is for protection of a person with whom the respondent is or was in a dating relationship, the facts upon which the court may conclude that a dating relationship existed between the person to be protected and the respondent;

(4) A request for relief under [R.C. 3113.31].

{¶ 30} “When granting a protection order, the trial court must find that petitioner has shown by a preponderance of the evidence that petitioner or petitioner's family or household members are in danger of domestic violence.” Felton v. Felton, 79 Ohio St.3d 34, 679 N.E.2d 672 (1997), paragraph two of the syllabus. R.C. 3113.31(A)(1)(a) defines domestic violence as “[t]he occurrence of one or more of the following acts against a family or household member:” [or “against a person with whom the respondent is or was in a dating relationship:”]

(i) Attempting to cause or recklessly causing bodily injury;

(ii) Placing another person by the threat of force in fear of imminent serious physical harm or committing a violation of section 2903.211 or 2911.211 of the Revised Code;

(iii) Committing any act with respect to a child that would result in the child being an abused child, as defined in section 2151.031 of the Revised Code;

(iv) Committing a sexually oriented offense.

{¶ 31} Based on the allegations in M.D.’s petition, the relevant definitions of domestic violence are that J.S. placed her “by the threat of force in fear of imminent serious physical harm” and committed a sexually oriented offense against her. R.C. 3113.31(A)(1)(a)(ii) and (A)(1)(a)(iv).

{¶ 32} “ ‘Threats of violence constitute domestic violence for the purposes of R.C. 3113.31 if the fear resulting from those threats is reasonable.’ ” Fleckner v. Fleckner, 177 Ohio App.3d 706, 2008-Ohio-4000, 895 N.E.2d 896, ¶ 21 (10th Dist.), quoting Lavery v. Lavery, 9th Dist. No. 20616, 2001 WL 1545663, *2 (Dec. 5, 2001). The test for determining whether a petitioner has demonstrated a fear of imminent serious physical harm from the threat of force under R.C. 3113.31(A)(1)(a)(ii) involves subjective and objective components. Fleckner at ¶ 23. The subjective portion of the test “inquires whether the respondent's threat of force actually caused the petitioner to fear imminent serious physical harm,” while the objective test “inquires whether the petitioner's fear is reasonable under the circumstances (that is, whether the respondent's threat would cause a reasonable person to fear imminent [unconditional, non-contingent] serious physical harm).” Id.

{¶ 33} Here, M.D.’s testimony demonstrated a subjective fear of imminent physical harm arising from J.S.’s threats. M.D. did not end the relationship because she was “afraid of what he might do” to her or her husband after J.S. threatened to rob them. (Tr. at 55.) M.D. testified that she “never knew what would upset” J.S., and that she “generally felt very scared to be around him based on the things he would say and do,” which included threatening to have his ex-partner attack her. Id. at 60. The night before M.D. finally left, she was “[h]oping that he would say, yes, just leave,” because she felt like she “always needed his permission to do anything” for fear of angering him. Id. at 77. After arguing in the driveway, M.D. went back inside after J.S. “told [her] to come back in the house,” after which she “tried to stay as still and as quiet as possible.” Id. at 78. That night, she did not protest when J.S. initiated sex with her because “not agreeing to -- or allowing him to have sex with [her] would have potentially been dangerous” for M.D. Id. at 79. The next day, M.D. called her mother and stated that she “was scared.” Id. at 81. M.D. did not want J.S. to meet her family in part because she was “fearful of him having access to people that [she] loved.” Id. at 82. When she finally left, she turned off the doorbell camera “so that he couldn't see that [she] was leaving.” Id. at 81. The subjective expressions of fear in M.D.’s testimony, which the trial court did not find to be not credible, are sufficient to show that J.S.’s conduct “actually caused” her to fear imminent physical harm. Fleckner at ¶ 23.

{¶ 34} Furthermore, M.D.’s fear was objectively reasonable under the circumstances. J.S. had threatened her and her ex-husband. He had his employment terminated for threatening a tenant with a gun. He engaged in a pattern of controlling behavior that dehumanized M.D. by appropriating her bodily autonomy, declaring that it was his right to use her for sex. J.S. constantly carried a weapon and made a point of displaying it when they argued. The night before M.D. left, J.S. threw items around the room, knocked over a cart, and threatened to have her assaulted by his ex-partner. In addition to M.D.’s subjective fear, any reasonable person would have felt fear of imminent physical harm under the circumstances she described, satisfying the objective portion of the test under Fleckner.

{¶ 35} The trial court did not apply Fleckner’s reasonable person test. With no analysis, it simply concluded that M.D. was “not * * * able to meet her burden to show” that J.S. had committed any of the types of domestic violence defined under R.C. 3113.31(A)(1)(a). (Decision at 2.) In reaching the opposite conclusion, we are mindful that “a trial court, particularly a domestic relations court, is in the best position to resolve disputes of fact, and assess the ‘credibility of witnesses’ and the weight to be given to their testimony.” Bates v. Bates, 10th Dist. No. 04AP-137, 2005-Ohio-3374, 2005 WL 1532424, ¶ 38, quoting Tonti v. Tonti, 10th Dist. No. 03AP-494, 2004-Ohio-2529, 2004 WL 1109840, ¶ 109. But contrary to J.S.’s argument, the trial court made no finding that M.D. lacked credibility. In fact, the trial court's findings largely reflect her testimony. Our assessment of the record contradicts no factual finding by the trial court, only its ultimate conclusion that M.D. failed to make a prima facie case under R.C. 3113.31.

{¶ 36} Even if M.D. had not made a prima facie showing that she had a reasonable fear of imminent physical harm under R.C. 3113.31(A)(1)(a)(ii), she made a prima facie case that J.S. had committed a sexually oriented offense against her, as required to demonstrate domestic violence under R.C. 3113.31(A)(1)(a)(iv). A sexually oriented offense that constitutes domestic violence is defined by reference to those offenses listed in R.C. 2950.01. R.C. 3113.31(A)(6). The sexually oriented offenses listed in R.C. 2950.01 include rape, sexual battery, and gross sexual imposition. See R.C. 2950.01(A)(1) (including a violation of R.C. 2907.02 (rape), 2907.03 (sexual battery) or 2907.05 (gross sexual imposition) in list of sexually oriented offenses). A nonconsensual sexual act performed on a sleeping person may be the factual predicate for any of those offenses. E.g., State v. H.H., 10th Dist. No. 10AP-1126, 2011-Ohio-6660, 2011 WL 6826833, ¶ 16 (reversing trial court for failing to merge defendant's “convictions for forcible rape” under R.C. 2907.02(A)(2) and “rape of a person whose ability to resist or consent was substantially impaired due to a mental or physical condition” under R.C. 2907.02(A)(1)(c), based on conduct of moving the victim “from the couch where she was sleeping to the bed, removing her clothes, and having intercourse with her while she slept”); State v. Sifinski, 5th Dist. No. 2004CA00353, 2005-Ohio-3983, 2005 WL 1840026, ¶ 37 (affirming sexual predator classification for defendant convicted of attempted rape under R.C. 2907.02 and gross sexual imposition under R.C. 2907.05 where “there was no force used,” but “the victim of the attack was asleep at the time”). Here, the trial court specifically found that, on more than one occasion, J.S. had inserted his “penis inside of” M.D. while she slept. (Decision at 1.) The trial court failed to recognize that this conduct might have constituted a sexually oriented offense, and therefore domestic violence under R.C. 3113.31(A)(1)(a)(iv). (Decision at 2.) Instead, the trial court faulted M.D. because she “never again confronted” J.S. about penetrating her while she slept and “never told him to stop,” even after finding that J.S. “became angry with her and a fight ensued” when she did try to confront him about this conduct. Id. Again, the trial court did not disbelieve M.D.’s testimony, as its findings nowhere indicate that it found her lacking in credibility. It appears to have replaced the statutory standard for proving domestic violence based on sexually oriented conduct with its own value judgments about M.D.’s behavior.² This is not the standard for evaluating a claim of domestic violence under R.C. 3113.31. Setting such value judgments aside, the manifest weight of the evidence as stated in the trial court's findings supported M.D.’s allegations of domestic violence. She made her prima facie case. The assignments of error are sustained.

{¶ 37} For the foregoing reasons, we conclude that the trial court's decision was contrary to law for failing to apply Fleckner and for failing to properly apply the statutory criteria defining domestic violence. In addition, the trial court's decision was against the manifest weight of the evidence, which made a prima facie case of domestic violence based on both “the threat of force in fear of imminent serious physical harm” under R.C. 3113.31(A)(1)(a)(ii) and the commission of “a sexually oriented offense” under R.C. 3113.31(A)(1)(a)(iv). Accordingly, it was error to grant the motion for involuntary dismissal under Civ.R. 41(B)(2). See Stanley v. Ohio State Univ. Med. Ctr., 10th Dist. No. 12AP-999, 2013-Ohio-5140, 2013 WL 6157232, ¶ 104 (stating that “[a]n appellate court will not overturn a Civ.R. 41(B)(2) involuntary dismissal unless it is contrary to law or against the manifest weight of the evidence”). Because the trial court made its erroneous ruling after M.D. made the prima facie case required under R.C. 3113.31 but before J.S. had introduced any evidence in his defense, due process requires the trial court to allow the presentation of his defense on remand. Rauser v. Ghaster, 8th Dist. No. 94745, 2011-Ohio-609, 2011 WL 486503, ¶ 4, 9 (where appellate court had remanded case in which plaintiffs sought a civil stalking protection order because they “had presented sufficient evidence to survive” the defendant's motion to dismiss granted by the trial court, and, after remand “the trial court did not reconvene the hearing to allow the presentation of evidence” before issuing protective order, appellate court held in second appeal that “[b]y issuing the protective order without providing appellant with a meaningful opportunity to be heard, the trial court violated her due process rights”).

IV. Conclusion

{¶ 38} Having sustained the three assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and remand this cause for further proceedings consistent with this decision.

Judgment reversed; cause remanded with instructions.

{¶ 39} I concur with the majority that in the findings of fact and conclusions of law the trial court did not make any finding as to M.D.’s credibility. Rather, the trial court summarized M.D.’s testimony without indicating whether the court found the testimony to be credible or not.³

{¶ 40} I also concur with the majority that in the findings of fact and conclusions of law the trial court did not determine whether J.S.’s actions actually caused M.D. to fear imminent serious physical harm (subjective test) and did not determine whether M.D.’s fear was reasonable (objective test).

{¶ 41} However, because considerations of weight of the evidence, credibility of the witnesses, and reasonableness are generally issues for the trier of fact, I would refrain from determining at this time whether the trial court's decision was against the manifest weight of the evidence. I would instruct the trial court upon remand to determine credibility and apply the subjective and objective tests in the first instance. E.W. v. T.W., 10th Dist. No. 16AP-88, 2017-Ohio-8504, 2017 WL 5192035, ¶ 19, citing J.R. v. E.H., 10th Dist. No. 16AP-431, 2017-Ohio-516, 2017 WL 587314, ¶ 10; Stenger v. Timmons, 10th Dist. No. 10AP-528, 2011-Ohio-1257, 2011 WL 941586, ¶ 7.

FOOTNOTES

1.   To the reader, trial court's phrasing may imply that M.D. consented to being penetrated in her sleep, but an examination of her testimony does not reflect this implication. The trial court's language mirrors the questioning by J.S.’s attorney when cross-examining M.D. (Tr. at 102.) When the attorney asked M.D. if she “allowed it to occur,” and she answered “[c]orrect,” the context of the questioning was her failure to confront J.S. about doing other than the first time he penetrated her while sleeping. See id. (“So after that one incident, you didn't voice any issue with what was going on, you allowed it to occur?”). In context, it is difficult to read the exchange as an admission of consent. In the same exchange, M.D. referred to the act as “sleep rape,” contradicting any inference that the act was consensual. Id.

2.   In many instances, the trial court's findings implied disapproval of M.D.’s behavior. M.D. “never called the police for assistance or reported any abuse” until the day she moved out. Id. She “did not speak to a domestic violence support system until 2 months prior” to moving out. The relevance of such statements to the issue before the trial court–whether the evidence M.D. presented made it more likely than not that she was “in danger of domestic violence,” according to a relevant statutory definition, was never explained. Felton at paragraph two of the syllabus.

3.   I also concur with the majority that the acts to which M.D. testified constitute a sexually oriented offense. However, the trial court must make a determination of credibility in the first instance to determine whether M.D.’s testimony and/or other evidence established the same.

MENTEL, P.J.

DORRIAN and BEATTY BLUNT, JJ., concur.