Loitman v. Wheelock

• Decision Date: 20 October 1998
• Docket Number: No. 74589,74589
• Citation: 980 S.W.2d 140
• Parties: Robert S. LOITMAN, Petitioner-Respondent, v. Nestor WHEELOCK, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 140

980 S.W.2d 140

Robert S. LOITMAN, Petitioner-Respondent, v. Nestor WHEELOCK, Respondent-Appellant.

No. 74589.

Missouri Court of Appeals,

Eastern District,

Division Five.

Oct. 20, 1998.

Murphy & Sindel, N. Kimasa Sindel, Clayton, for appellant, Nestor Wheelock.

Daniel L. Goldberg, St. Charles, for respondent, Robert S. Loitman.

KAROHL, Judge.

Petitioner, Robert S. Loitman, filed a Petition for Order of Protection from respondent, Nestor Wheelock. Section 455.010 et. seq. RSMo Cum.Supp.1997. Loitman alleged stalking at 2 Maryland Plaza, in that "[Wheelock] was asked to leave establishment. [Wheelock] threw hot coffee at [Loitman], threatened 'war' and started to yell verbally abusive remarks." Loitman was afraid of Wheelock because "he threatened violence (i.e., threatened 'war'). [Wheelock] has reappeared at work twice despite being asked [to] stay away." Loitman prayed for an Order of Protection restraining Wheelock from entering his dwelling at 10 Washington Terrace, "AND ANYWHERE ELSE I/or WE MAY BE FOUND, INCLUDING MY JOB." After hearing Loitman's and Wheelock's testimony, the court entered a full Order of Protection which enjoined Wheelock from disturbing the peace, molesting, harassing or abusing Loitman at his place of employment or dwelling unit. The court specifically ordered Wheelock not to be within 50 feet of Loitman's place of business. The order expires on November 16, 1998 unless terminated or extended.

Wheelock argues: (1) the evidence was insufficient to support the Order of Protection, particularly, allegations of stalking; (2) the court erred in refusing to allow him to present all of his evidence, particularly the testimony of witnesses who were in court and prepared to testify.

For two reasons we reverse and remand. First, the transcript of proceedings is not complete because many of the events that occurred at trial are transcribed as "inaudible." Questions, answers and rulings are not available to the parties or this court. This prevents our determination of what evidence was received and considered by the court or excluded. As a result, we cannot review the insufficiency of evidence claim.

Second, from an incomplete record it is not possible to determine whether the court abused its discretion in refusing to hear three defense witnesses. A court has considerable discretion in the exclusion of evidence and, in the absence of abuse, such rulings will not be grounds for reversal. House v. Missouri Pacific R.R. Co., 927 S.W.2d 538, 540 (Mo.App. E.D.1996). Such abuse occurs only when the ruling is against the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration. Id. Our review of an exclusion of evidence issue depends upon an offer of proof demonstrating relevance and admissibility to the trial court. Such offer must be definite and specific. State Farm Mut. Auto. Ins. v. DeCaigney, 927 S.W.2d 907, 911 (Mo.App. W.D.1996).

Unfortunately, it is not possible to determine whether the issue was adequately preserved or whether the court abused its discretion. After Wheelock completed his direct testimony, the court asked Loitman, who tried the case pro se, if he had any questions for Wheelock. He said "No." Wheelock's counsel then said "Your Honor, I have three more witnesses." The court's immediate response was "The Court finds from the testimony that I have heard, that both parties have maintained for each other (Inaudible)." This partial quotation represents the end of the transcript of proceedings. Obviously, it is incomplete.

Wheelock filed a Motion for Rehearing in which he alleged the court erred and abused its discretion by excluding evidence sought to be used by him as part of his case in chief, but the court "declined to hear this testimony." The motion also alleged that he indicated, at the time of the offer of the witnesses, that they would testify that Loitman initiated at least one contact in which he accosted Wheelock; that Loitman's evidence that he felt threatened was unreliable because he continued to seek out Wheelock; and, Wheelock never threatened Loitman and actually...