M.R. v. B.C. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 21, 2019
• Docket: 18A-PO-2156
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2019, 6:18 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT Mark K. Leeman Leeman Law Offices Logansport, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.R., February 21, 2019 Appellant-Respondent, Court of Appeals Case No. 18A-PO-2156 v. Appeal from the Cass Superior Court The Honorable James Muehlhausen, B.C., Judge Appellee-Petitioner Trial Court Cause No. 09D01-1806-PO-54

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 1 of 11 Case Summary [1] M.R. appeals the trial court’s entry of a protective order sought by B.C. He

challenges the sufficiency of the evidence to support the issuance of the

protective order, and he also asserts that the trial court abused its discretion in

admitting certain hearsay evidence during the hearing. Finding the evidence

sufficient and that any error in the admission of evidence was harmless, we

affirm.

Facts and Procedural History [2] B.C. and M.R. began dating and started cohabiting in 2004. In 2011, a court

granted B.C. de facto custody of her two-year-old granddaughter, L.M. B.C.,

L.M., and M.R. lived together as a family for several years. Although L.M.

was not related to M.R., she still referred to him as “grandpa.” Tr. Vol. 2 at 16.

B.C. and M.R. started experiencing relationship troubles, and sometime in

2017, B.C. moved out of the home, taking L.M. with her. The parties

reconciled briefly in early 2018, and B.C. and L.M. moved back in with M.R.

However, in May 2018, B.C. decided the relationship was over. She

subsequently removed all her belongings from the home, and she and L.M.

moved out. B.C. wished to have no more contact with M.R. and asked him to

“leave [her] alone.” Id. at 6. B.C. got married to another man in July 2018.

This resulted in a lot of “animosity” between the former couple. Id. at 30.

[3] Thereafter, M.R. attended several of L.M.’s softball games despite B.C.’s

requests that he not do so. M.R. often spoke to or made inappropriate

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 2 of 11 comments to B.C., her husband, and L.M. This made B.C. upset. One time

M.R. was driving by in his truck after the game, and B.C. heard him say

something directed to nine-year-old L.M. about B.C. sleeping with multiple

men. Id. at 8. On another occasion, M.R. waited in his truck for B.C. to leave

the ballpark, and then he followed her car through town. On yet another

occasion he approached B.C. and L.M. in the concession line. B.C. asked to be

left alone, but M.R. followed them as they walked. B.C. felt unsafe, so she

asked a male friend, who also happens to be a police officer, to escort her and

L.M. to their car. Id. at 9. M.R. still followed and then stood behind B.C.’s car

until the officer had to ask him to step out of the way so B.C. could leave. This

caused a “very uncomfortable situation.” Id. at 9.

[4] During this same period of time, M.R. mailed letters to B.C.’s home and place

of employment, and he also called B.C. at work on one or two occasions to

express his anger about the fact that she left him and married another man.

M.R. called B.C.’s friends and several members of her family to talk about

B.C., and he additionally called Child Protective Services on B.C.

[5] On June 14, 2018, B.C. filed a petition for a protective order against M.R.

alleging that M.R. had committed stalking. Following a hearing held on

August 10, 2018, the trial court entered its order granting B.C.’s request for a

protective order. Specifically, the order provides:

1. [M.R] is hereby enjoined from threatening to commit or committing acts of domestic or family violence, stalking, or sex

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 3 of 11 offenses against [B.C.] and the following designated family or household members, if any;

2. [M.R.] is prohibited from harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [B.C.], except: [M.R.] is allowed to visit child, [L.M.], at the ballpark. [M.R.] is allowed to visit the same church, The Church of the Nazarene, but will have no communication with [B.C.].

Appealed Order at 2. This appeal ensued.

Discussion and Decision [6] We begin by noting that B.C. has not filed an appellee’s brief. When an

appellee fails to submit a brief, we do not undertake the burden of developing

arguments for the appellee, and we apply a less stringent standard of review.

Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Thus, we may

reverse if the appellant establishes prima facie error, which is error at first sight,

on first appearance, or on the face of it. Id. at 351-52. This rule relieves us of

the burden of controverting arguments advanced in favor of reversal where that

burden properly rests with the appellee. Id. at 352. In any event, we are still

obligated to correctly apply the law to the facts in the record in order to

determine whether reversal is required. Id.

[7] Pursuant to the Indiana Civil Protection Order Act (“CPOA”), “[a] person who

is or has been a victim of domestic or family violence may file a petition for an

order for protection[.]” Ind. Code § 34-26-5-2(a). A finding that domestic

violence has occurred sufficient to justify the issuance of a protective order

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 4 of 11 means that a respondent represents a credible threat to the safety of a petitioner

or a member of the petitioner’s household. Ind. Code § 34-26-5-9(f). The

definition of “domestic or family violence” includes stalking as defined in

Indiana Code Section 35-45-10-1. Ind. Code § 34-6-2-34.5

[8] To obtain an order of protection, the petitioner must establish at least one of the

allegations in the petition by a preponderance of the evidence. A.S. v. T.H., 920

N.E.2d 803, 806 (Ind. Ct. App. 2010). The CPOA authorizes issuance of an

order for protection where a petitioner shows stalking occurred, regardless of

whether the stalker is a stranger, or a family or household member of the

victim. Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1161-62 (Ind. Ct. App. 2003)

(citing Ind. Code § 34-6-4-34.5).

Section 1 – Sufficient evidence supports the trial court’s issuance of a protective order. [9] M.R. asserts that the evidence was insufficient to support the trial court’s grant

of B.C.’s request for a protective order. When considering the sufficiency of the

evidence supporting a decision to issue a protective order, we do not reweigh

the evidence or judge the credibility of witnesses. A.G. v. P.G., 974 N.E.2d 598,

598 (Ind. Ct. App. 2012). We look only to the evidence of probative value and

reasonable inferences that support the trial court’s judgment. Id.

[10] Here, B.C. was required to establish, by a preponderance of the evidence, that

M.R. committed stalking. “Stalking” is defined in relevant part as “a knowing

or intentional course of conduct involving repeated or continuing harassment of

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 5 of 11 another person that would cause a reasonable person to feel terrorized,

frightened, intimidated, or threatened and that actually causes the victim to feel

terrorized, frightened, intimidated, or threatened.” Ind. Code § 35-45-10-1.

“[H]arassment” is defined as “conduct directed toward a victim that includes

but is not limited to repeated or continuing impermissible contact that would

cause a reasonable person to suffer emotional distress and that actually causes

the victim to suffer emotion distress.” Ind. Code § 35-45-10-2. “[T]he term

‘repeated’ in Indiana’s anti-stalking law means ‘more than once.’” Johnson v.

State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999), trans. denied (2000).

[11] B.C. testified, and M.R. admitted that, on multiple occasions after the parties

ended their relationship, he attended nine-year-old L.M.’s softball games

despite B.C.’s requests that he not do so. B.C. stated that each time, M.R.

engaged in behavior that made B.C. feel “upset” and “uncomfortable.” Tr.

Vol. 2 at 7. One time he made an inappropriate sexual comment about B.C. to

L.M. Another time, M.R. waited in his truck for B.C. to leave the ballpark and

then followed her car through town. Yet another time, M.R. confronted B.C.

in line at the concession stand and then started following her as she walked to

her car. As a result, B.C. felt unsafe and was compelled to ask a police officer

friend for help. B.C. also testified that M.R. mailed multiple angry letters to her

home and place of employment, telephoned her at work on two occasions, and

contacted her family and friends. B.C. stated that M.R. simply refused to

“leave [her] alone[,]” and she felt “threatened because [M.R.] has shown anger”

toward her. Id. at 9, 37.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 6 of 11 [12] B.C.’s testimony is sufficient to establish by a preponderance of the evidence

that M.R. engaged in a knowing or intentional course of conduct involving

repeated or continuing harassment of B.C. that would cause a reasonable

person to feel terrorized, frightened, intimidated, or threatened and that actually

caused B.C. to feel terrorized, frightened, intimidated, or threatened. The trial

court heard the testimony and observed witness demeanor; M.R.’s arguments

on appeal are merely requests for us to reweigh the evidence and reassess

witness credibility, and we cannot. We agree with the trial court that, although

M.R.’s behavior was not overly “egregious,” id. at 42, B.C. presented sufficient

evidence of stalking to support the issuance of a protective order. M.R. has not

established prima facie error.

Section 2 – Any error in the admission of evidence was harmless. [13] M.R. maintains that the trial court abused its discretion in admitting certain

hearsay evidence during the hearing.1 Specifically, he argues that, over his

objections, the trial court improperly allowed B.C. to testify regarding

statements made by L.M. about how L.M. felt about M.R.2 Our standard of

review of a trial court’s admission of evidence is an abuse of discretion. In re

Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). An abuse of discretion occurs if

1 Hearsay is defined as “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). 2 We note that B.C. appeared pro se at the hearing, and the trial court, in its discretion, allowed her considerable procedural leeway in the presentation of her case.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 7 of 11 the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before the court. Id. However, it is well established that errors in

the admission of evidence are to be disregarded as harmless error unless they

affect the substantial rights of a party. Id. “To determine whether the

admission of evidence affected a party’s substantial rights, we assess the

probable impact of the evidence upon the finder of fact.” Id.

[14] Upon review of the record, we conclude that any error in the admission of the

hearsay evidence in question was harmless. In issuing the protective order, the

trial court focused on M.R.’s harassment of B.C., and how that caused her to

feel intimidated and threatened. The trial court made it abundantly clear that

the order is intended to protect B.C., and not L.M., from M.R. Indeed,

although the order prohibits M.R. from contacting or communicating with

B.C., the language of the order permits M.R. some contact with L.M.

Accordingly, we are confident that B.C.’s testimony regarding L.M.’s

statements did not impact the trial court’s decision to issue the protective order

in this case, and therefore, any erroneous admission of evidence did not affect

M.R.’s substantial rights. The trial court’s protective order is affirmed.

[15] Affirmed.

Vaidik, C.J., concurs.

Mathias, J., concurs in result with opinion.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 8 of 11 IN THE COURT OF APPEALS OF INDIANA

M.R., Court of Appeals Case No. 18A-PO-2156 Appellant-Defendant,

v.

B.C., Appellee-Petitioner.

Mathias, Judge, concurring in result.

[16] I concur with the result in this case but write separately to comment on the

admissibility of hearsay in civil protection order proceedings.

[17] First, I observe that due to serious and immediate concerns for his or her safety,

a petitioner may request an ex parte order of protection. See Ind. Code § 34-26-5-

9(f). Petitioners are also frequently unrepresented by counsel. For these reasons,

we may reasonably assume that in ex parte proceedings courts frequently rely on

hearsay to determine whether an ex parte protective order should be issued.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 9 of 11 [18] In addition, petitions for civil orders of protection may be heard in any court of

record, including small claims courts.3 See Ind. Code § 34-26-5-4. The rules of

evidence generally do not apply to proceedings in small claims courts. Our

court has specifically held that hearsay is admissible in protection order

proceedings adjudicated in small claims court, and that the small claims court’s

judgment may be supported solely by hearsay evidence. See Rzeszutek et al. v.

Beck, 649 N.E.2d 673, 681 (Ind. Ct. App. 1995), trans. denied (concluding that a

protective order entered by small claims court could be based solely on hearsay

evidence). See also Matusky v. Sheffield Square Apartments, 654 N.E.2d 740, 742

(Ind. 1995); Hitchens v. Collection Specialists, Inc., 5 N.E.3d 418, 423 (Ind. Ct.

App. 2014) (reaffirming the principle that hearsay is admissible in small claims

proceedings).

[19] However, where the petition for the protective order is filed in superior or

circuit court, as is the case here, our court has held that a trial court errs when it

grants a petition for an order of protection based on the petitioner’s hearsay

statements.4 See Barger v. Barger, 887 N.E.2d 990, 993–94 (Ind. Ct. App. 2008).

The Barger court also noted the “significant ramifications of an improperly

granted protective order” including that violating a protective order is

“punishable by confinement in jail, prison, and/or a fine.” See id. (quoting Ind.

3 Until July 1, 2018, the Marion County Small Claims court was not a court of record. See Ind. Code § 33-34- 1-3. 4 The Protection Order Deskbook instructs judges that the rules of evidence apply to protective order proceedings. Protection Order Deskbook, Indiana Judicial Center, p. 4-7 (Nov. 2010).

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 10 of 11 Code § 34-26-5-3)). It is notable that in rural counties, only superior and circuit

courts are available for protective order petitions, whether or not the respective

court(s) choose to hear them on their small claims dockets.

[20] In sum, hearsay may support the trial court’s adjudication of a petition for an ex

parte order of protection in general, and on a petition for a permanent order of

protection when the petition is filed in small claims court. However, a party

who files his or her petition in superior or circuit court must proceed under a

different and more complex evidentiary standard. One evidentiary standard

should apply in all protective order proceedings regardless of the judicial forum.

I therefore urge our supreme court to address this inconsistency through a

modification of applicable rules.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019 Page 11 of 11