MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 29 2017, 11:07 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Michael Riley Ned J. Tonner Law Office of Michael Riley, P.C. Rensselaer, Indiana Rensselaer, Indiana
IN THE COURT OF APPEALS OF INDIANA
D.S., September 29, 2017 Appellant-Respondent, Court of Appeals Case No. 37A03-1702-PO-359 v. Appeal from the Jasper Superior Court L.K., The Honorable Thomas G. Fisher, Appellee-Petitioner. Senior Judge Trial Court Cause No. 37D01-1610-PO-814
Barnes, Judge.
Case Summary [1] D.S. appeals from the trial court’s denial of his motion to correct error, which
challenged the issuance of a protective order against him. We affirm.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 1 of 7 Issue [2] The sole issue before us is whether sufficient evidence supports the issuance of
the underlying protective order such that the trial court acted properly in
allowing it to become permanent and in denying D.S.’s motion to correct error.
Facts [3] D.S. and L.K. dated from November 2015 until April 2016 at Saint Joseph’s
College in Renssalaer. D.S. ended their romantic relationship, but the parties
maintained a sexual relationship until the end of the school year. The parties
resumed their sexual relationship when school resumed in the Fall of 2016. In
September of 2016, L.K. learned that D.S. had a new girlfriend and ended the
arrangement. Occasionally, during the ensuing thirty-day period, D.S. asked
L.K. to have sex with him, and L.K. refused.
[4] On October 26, 2016, D.S. telephoned L.K. and said that he was coming to her
dorm room for sex. L.K. again refused, but D.S. responded that he was “still
coming over.” Tr. p. 20. L.K. let him into her room, and the parties argued
about their relationship status. At one point, L.K. told D.S., “[L]eave me alone
or I’m going to get security.” Id. at 21. D.S. “told [L.K.] to perform oral sex,”
and she responded, “what if I don’t want to.” Id. D.S. “grabbed the back of
[her] neck and pushed [her] head down to his penis.” Id. at 88. D.S. forced
L.K. to perform oral sex. He then said “turn over . . . . [a]nd he proceeded to
have sex with [her].” Id. Afterwards, D.S. “got up and put on his clothes and
left.” Id. at 23.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 2 of 7 [5] After the incident, L.K. telephoned her mother and said, “I think I got raped.”
Id. at 24. L.K. or her mother reported the incident to her coach, campus
security, and local police. The following day, L.K. petitioned for an ex parte
protective order, which was granted. On October 25, 2016, the Jasper County
Superior Court ordered D.S. to refrain from contacting, harassing, or
threatening to commit or committing acts of domestic violence or sexual assault
upon L.K. On October 31, 2016, D.S. filed a motion for a hearing on the ex
parte order.
[6] Saint Joseph College crafted and implemented a meal schedule (“policy”) to
ensure that the parties did not interact in the campus cafeteria. D.S. was
advised that violating the policy could result in his administrative dismissal.
[7] On November 30, 2016, L.K. filed a petition for contempt, alleging that D.S.
violated the protective order on November 6, 7, 8, 10, 28, and 29 of 2016. The
trial court conducted a combined hearing on L.K.’s contempt petition and
D.S.’s request for a hearing on December 6, 2016.
[8] L.K. testified that D.S. forced her to have sex against her will. She also testified
that D.S. had repeatedly violated the policy by being in the cafeteria at the same
time as her, including an occasion when he sat nearby and stared at her, which
she perceived as an effort to harass her. She testified further that her rape
accusation was neither retaliatory nor motivated by jealousy and that she felt
threatened and harassed, even after the trial court’s issuance of the protective
order.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 3 of 7 [9] Investigator Pat Harper of the Jasper County Prosecuting Attorney’s Office
testified regarding interviewing L.K. after the incident. He testified that L.K.
did not indicate that she was forced and described “nothing different” from the
parties’ typical dynamic. Id. at 63-64. He also testified that L.K. stated that she
did not tell D.S. to stop and that “she just shut down.” Id. at 66.
[10] Saint Joseph’s Dean of Students, George Oripsko, testified that D.S. admitted
to violating the policy. D.S., too, testified that he violated the policy. He
maintained, however, that his violations stemmed from miscommunication
between school officials and scheduling difficulties related to his athletic
schedule. He testified further that, after the policy was revised to accommodate
his schedule, he made no further contact with L.K. D.S. also maintained that
the parties’ sexual contact was wholly consensual.
[11] On December 14, 2016, the trial court declined to find D.S. in contempt but
found sufficient evidence to warrant allowing the protective order to become
permanent. On January 13, 2017, D.S. filed a motion to correct error, which
was denied. See Tr. p. 100 (“I will say that this is a close case and I thought …
long and hard about it. But the decision is what it is and I stand by it[.]”). D.S.
now appeals.
Analysis [12] D.S. argues that the trial court erred in denying his motion to correct error and
in allowing the protective order to become permanent. We generally review the
denial of a motion to correct error for an abuse of discretion, which occurs
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 4 of 7 when the trial court’s decision is against the logic and effect of the facts and
circumstances before the court. Kornelik v. Mirtal Steel USA, Inc., 952 N.E.2d
320, 324 (Ind. Ct. App. 2011), trans. denied.
[13] Indiana’s Civil Protection Order Act (“CPOA”) authorizes a person who is or
has been a victim of domestic or family violence to file a petition for an order of
protection. Ind. Code § 34-26-5-2. The respondent in such an action may be a
person with whom the petitioner had been in a dating or sexual relationship.
I.C. § 34-6-2-44.8(2), (3). To obtain a protective order, a petitioner alleging
“domestic or family violence” must establish by a preponderance of the
evidence that the respondent committed at least one of the following:
(1) Attempt[ed] to cause, threatening to cause, or caus[ed] physical harm to another family or household member.
(2) Plac[ed] a family or household member in fear of physical harm.
(3) Caus[ed] a family or household member to involuntarily engage in sexual activity by force, threat of force, or duress.
A.S. v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010); I.C. § 34-6-2-34.5.
[14] D.S. argues that there was insufficient evidence to support the trial court’s
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 29 2017, 11:07 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Michael Riley Ned J. Tonner Law Office of Michael Riley, P.C. Rensselaer, Indiana Rensselaer, Indiana
IN THE COURT OF APPEALS OF INDIANA
D.S., September 29, 2017 Appellant-Respondent, Court of Appeals Case No. 37A03-1702-PO-359 v. Appeal from the Jasper Superior Court L.K., The Honorable Thomas G. Fisher, Appellee-Petitioner. Senior Judge Trial Court Cause No. 37D01-1610-PO-814
Barnes, Judge.
Case Summary [1] D.S. appeals from the trial court’s denial of his motion to correct error, which
challenged the issuance of a protective order against him. We affirm.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 1 of 7 Issue [2] The sole issue before us is whether sufficient evidence supports the issuance of
the underlying protective order such that the trial court acted properly in
allowing it to become permanent and in denying D.S.’s motion to correct error.
Facts [3] D.S. and L.K. dated from November 2015 until April 2016 at Saint Joseph’s
College in Renssalaer. D.S. ended their romantic relationship, but the parties
maintained a sexual relationship until the end of the school year. The parties
resumed their sexual relationship when school resumed in the Fall of 2016. In
September of 2016, L.K. learned that D.S. had a new girlfriend and ended the
arrangement. Occasionally, during the ensuing thirty-day period, D.S. asked
L.K. to have sex with him, and L.K. refused.
[4] On October 26, 2016, D.S. telephoned L.K. and said that he was coming to her
dorm room for sex. L.K. again refused, but D.S. responded that he was “still
coming over.” Tr. p. 20. L.K. let him into her room, and the parties argued
about their relationship status. At one point, L.K. told D.S., “[L]eave me alone
or I’m going to get security.” Id. at 21. D.S. “told [L.K.] to perform oral sex,”
and she responded, “what if I don’t want to.” Id. D.S. “grabbed the back of
[her] neck and pushed [her] head down to his penis.” Id. at 88. D.S. forced
L.K. to perform oral sex. He then said “turn over . . . . [a]nd he proceeded to
have sex with [her].” Id. Afterwards, D.S. “got up and put on his clothes and
left.” Id. at 23.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 2 of 7 [5] After the incident, L.K. telephoned her mother and said, “I think I got raped.”
Id. at 24. L.K. or her mother reported the incident to her coach, campus
security, and local police. The following day, L.K. petitioned for an ex parte
protective order, which was granted. On October 25, 2016, the Jasper County
Superior Court ordered D.S. to refrain from contacting, harassing, or
threatening to commit or committing acts of domestic violence or sexual assault
upon L.K. On October 31, 2016, D.S. filed a motion for a hearing on the ex
parte order.
[6] Saint Joseph College crafted and implemented a meal schedule (“policy”) to
ensure that the parties did not interact in the campus cafeteria. D.S. was
advised that violating the policy could result in his administrative dismissal.
[7] On November 30, 2016, L.K. filed a petition for contempt, alleging that D.S.
violated the protective order on November 6, 7, 8, 10, 28, and 29 of 2016. The
trial court conducted a combined hearing on L.K.’s contempt petition and
D.S.’s request for a hearing on December 6, 2016.
[8] L.K. testified that D.S. forced her to have sex against her will. She also testified
that D.S. had repeatedly violated the policy by being in the cafeteria at the same
time as her, including an occasion when he sat nearby and stared at her, which
she perceived as an effort to harass her. She testified further that her rape
accusation was neither retaliatory nor motivated by jealousy and that she felt
threatened and harassed, even after the trial court’s issuance of the protective
order.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 3 of 7 [9] Investigator Pat Harper of the Jasper County Prosecuting Attorney’s Office
testified regarding interviewing L.K. after the incident. He testified that L.K.
did not indicate that she was forced and described “nothing different” from the
parties’ typical dynamic. Id. at 63-64. He also testified that L.K. stated that she
did not tell D.S. to stop and that “she just shut down.” Id. at 66.
[10] Saint Joseph’s Dean of Students, George Oripsko, testified that D.S. admitted
to violating the policy. D.S., too, testified that he violated the policy. He
maintained, however, that his violations stemmed from miscommunication
between school officials and scheduling difficulties related to his athletic
schedule. He testified further that, after the policy was revised to accommodate
his schedule, he made no further contact with L.K. D.S. also maintained that
the parties’ sexual contact was wholly consensual.
[11] On December 14, 2016, the trial court declined to find D.S. in contempt but
found sufficient evidence to warrant allowing the protective order to become
permanent. On January 13, 2017, D.S. filed a motion to correct error, which
was denied. See Tr. p. 100 (“I will say that this is a close case and I thought …
long and hard about it. But the decision is what it is and I stand by it[.]”). D.S.
now appeals.
Analysis [12] D.S. argues that the trial court erred in denying his motion to correct error and
in allowing the protective order to become permanent. We generally review the
denial of a motion to correct error for an abuse of discretion, which occurs
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 4 of 7 when the trial court’s decision is against the logic and effect of the facts and
circumstances before the court. Kornelik v. Mirtal Steel USA, Inc., 952 N.E.2d
320, 324 (Ind. Ct. App. 2011), trans. denied.
[13] Indiana’s Civil Protection Order Act (“CPOA”) authorizes a person who is or
has been a victim of domestic or family violence to file a petition for an order of
protection. Ind. Code § 34-26-5-2. The respondent in such an action may be a
person with whom the petitioner had been in a dating or sexual relationship.
I.C. § 34-6-2-44.8(2), (3). To obtain a protective order, a petitioner alleging
“domestic or family violence” must establish by a preponderance of the
evidence that the respondent committed at least one of the following:
(1) Attempt[ed] to cause, threatening to cause, or caus[ed] physical harm to another family or household member.
(2) Plac[ed] a family or household member in fear of physical harm.
(3) Caus[ed] a family or household member to involuntarily engage in sexual activity by force, threat of force, or duress.
A.S. v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010); I.C. § 34-6-2-34.5.
[14] D.S. argues that there was insufficient evidence to support the trial court’s
issuance of the protective order against him because “[L.K.] failed to put on
evidence to demonstrate that she was in fact sexually assaulted or that [D.S.]
had threatened her.” Appellant’s Br. p. 9.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 5 of 7 [15] When considering the sufficiency of the evidence supporting a decision to issue
or modify a protective order, we neither reweigh the evidence nor judge the
credibility of witnesses. See A.S., 920 N.E.2d at 806. We look only to the
evidence of probative value and reasonable inferences supporting the trial
court’s judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-
finder’s role, not that of appellate courts, to assess witness credibility and weigh
the evidence to determine whether it is sufficient. Id. To preserve this
structure, when appellate courts are confronted with conflicting evidence, they
must consider it “most favorably to the trial court’s ruling.” Id.
[16] L.K. established by a preponderance of the evidence that D.S. “caus[ed]” her
“to involuntarily engage in sexual activity by force, threat of force, or duress.”
See I.C. § 34-6-2-34.5(3). At the hearing for the protective order, she testified
that before the incident, D.S. came to her dorm room against her wishes; asked
her to perform oral sex; and when she responded, “What if I don’t want to,”
forced her to perform oral sex, after which she submitted to vaginal intercourse
against her will. Tr. p. 21.
[17] In considering D.S.’s motion to correct error, the trial court alluded to the
matter as a “close case.” See Tr. p. 100. In cases involving protective orders, “it
is even more important than usual to remember that on appeal we do not
reweigh the evidence, assess the credibility of witnesses, or substitute our
judgment for that of the trial court.” Chavers v. State, 991 N.E.2d 148, 153 (Ind.
Ct. App. 2013). Where, as here, the parties’ accounts conflict at virtually every
turn, we cannot invade the province of the trial judge, who saw the witnesses,
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 6 of 7 observed their demeanor, scrutinized their testimony, weighed their credibility,
and predicated its judgment on its observations. See Scott v. State, 867 N.E.2d
690, 695 (Ind. Ct. App. 2007) (“[T]he trier of fact is entitled to determine which
version of the incident to credit.”).
[18] There was sufficient evidence to support, by a preponderance of the evidence,
the trial court’s issuance of the protective order and its subsequent decision to
allow the protective order to become permanent. This was a classic case of “he
said, she said,” and the trial court believed what she said. D.S.’s challenges to
L.K.’s evidence amount to requests that we reweigh the evidence or assess
credibility of the witness, which we cannot do. See A.S., 920 N.E.2d at 806.
Based on the foregoing, the trial court did not err in denying D.S.’s motion to
correct error.
Conclusion [19] Sufficient evidence supports the trial court’s issuance of the protective order and
subsequent decision to allow it to become permanent. The trial court’s denial
of D.S.’s motion to correct error was not against the logic and effect of the facts
and circumstances before the trial court. We affirm.
Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 37A03-1702-PO-359 | September 29, 2017 Page 7 of 7