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

• Court: Indiana Court of Appeals
• Decided: March 29, 2017
• Docket: 29A05-1609-PO-2131
• 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 Mar 29 2017, 10:23 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 John A. Henry Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

M.S., March 29, 2017 Appellant-Respondent, Court of Appeals Case No. 29A05-1609-PO-2131 v. Appeal from the Hamilton Superior Court C.B., The Honorable Gail Z. Bardach, Appellee-Petitioner Judge Trial Court Cause No. 29D06-1607-PO-6308

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017 Page 1 of 6 Case Summary [1] This is an appeal from the issuance of a protective order that, among other

things, prohibits the respondent from possessing firearms during the two-year

term of the order. Indiana’s Civil Protection Order Act provides that a trial

court issuing a protective order “may” include a firearm prohibition, but the

trial court that issued the order in this case made comments suggesting that it

included the prohibition because it mistakenly believed that it was required to

do so. Therefore, while we affirm the trial court’s decision to issue a protective

order, we reverse the imposition of the firearm prohibition and remand this

matter for clarification regarding that provision.

Facts and Procedural History [2] In July 2016, C.B. filed a petition seeking a protective order against her ex-

boyfriend, M.S., alleging that he had engaged in acts of “domestic or family

violence.” The trial court issued an ex parte order and then, following a request

by M.S., set the matter for a hearing. At the hearing, C.B. testified about

several things that had happened during her relationship with M.S., including a

conversation about whether M.S. would move out of their house. During the

conversation, C.B. was sitting at a table, and M.S. “threw a chair” toward the

table, coming “[w]ithin a few inches” of hitting C.B. Tr. pp. 20-21. C.B.

acknowledged that the chair did not actually hit her but testified that M.S.

exhibited “enough anger and violence to scare me.” Id. at 22. Based on this

act, the trial court found that the order “has a legal basis” and “will remain in

Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017 Page 2 of 6 effect as it was originally issued.” Id. at 33.1 The court continued, “And

because [C.B.] and [M.S] resided together in an intimate relationship, I have to

add to the order for protection a firearms prohibition.” Id. Accordingly, the

written order that took the place of the ex parte order includes a provision

prohibiting M.S. “from using or possessing a firearm, ammunition, or deadly

weapon” during the two-year term of the order (“firearm prohibition”).

Appellant’s App. Vol. II p. 8.

[3] M.S. now appeals.

Discussion and Decision [4] M.S. contends that the trial court should not have issued the protective order

and that, in the alternative, it should not have included the firearm prohibition

in the order. Because C.B. has not filed an appellee’s brief, M.S. need only

demonstrate prima facie error, that is, error “at first sight, on first appearance,

or on the face of it.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

2006).

1 C.B. also testified that M.S. choked her during sex, and the trial court found that to be an additional act of violence justifying issuance of the protective order. M.S. disputes that finding, arguing that C.B. consented to the choking. Because we affirm the trial court’s finding regarding the throwing of the chair, and because one act of domestic or family violence is sufficient to justify a protective order, we need not address the choking issue.

Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017 Page 3 of 6 I. Issuance of Protective Order [5] M.S. first argues that the trial court erred by issuing the protective order. We

disagree. Indiana’s Civil Protection Order Act allows the issuance of a

protective order when there has been “domestic or family violence,” Ind. Code

§ 34-26-5-9(a), which includes “[p]lacing a family or household member in fear

of physical harm,” Ind. Code § 34-6-2-34.5. Here, C.B. testified that she was

sitting at a table talking to M.S. about whether he would move out of their

house, that M.S. threw a chair toward the table, that the chair came within a

few inches of hitting her, and that she was scared as a result. This testimony

was easily sufficient to justify the issuance of the protective order.

II. Inclusion of Firearm Prohibition [6] M.S. argues that even if we affirm the issuance of the protective order, we

should reverse the trial court’s inclusion of the firearm prohibition in the order.

He takes issue with the trial court’s conclusion that “because [C.B.] and [M.S.]

resided together in an intimate relationship, I have to add to the order for

protection a firearms prohibition.” Tr. p. 33 (emphasis added). M.S. asserts

that this language indicates that the trial court was operating under the

impression that it was required to impose the firearm prohibition because M.S.

and C.B. had been in an intimate relationship and that this belief was mistaken.

We agree.

[7] Presumably, the trial court based its conclusion on 18 U.S.C. § 922(g)(8),

which, generally stated, provides that “[i]t shall be unlawful for any person”

Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017 Page 4 of 6 who is subject to an order protecting a current or former “intimate partner” to

possess any firearm or ammunition. However, the fact that this federal criminal

statute prohibits firearm possession by an individual like M.S. does not mean

that a state trial court issuing a protective order is required to include the same

prohibition in the order. Indeed, Indiana’s protective-order statute simply says

that a trial court issuing such an order “may . . . [p]rohibit a respondent from

using or possessing a firearm, ammunition, or a deadly weapon[.]” Ind. Code §

34-26-5-9(c)(4) (emphasis added); see also id. at (f). Because there is no clear

indication in the record before us that the trial court would have included the

firearm prohibition in the protective order but for its apparent belief that it was

required to do so, we must reverse the imposition of the prohibition and

remand this matter for reconsideration in light of the particular facts of this

case.

[8] We recognize, especially in light of the federal statute, that chances are good

that the trial court will leave the firearm prohibition intact on remand. Also, we

assume that M.S. will abide by the federal statute and refrain from possessing

firearms regardless of what the trial court does. At the same time, however, if

the trial court were to omit the prohibition from the protective order, M.S.

would be exposed to only federal criminal prosecution in the event that he

chooses to possess a firearm, and not to additional state prosecution for

violating the protective order (see Ind. Code § 35-46-1-15.1, invasion of privacy).

Given this prospect, clarification of the issue by the trial court, in accordance

with the discretionary nature of Section 34-26-5-9(c)(4), is appropriate.

Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017 Page 5 of 6 [9] Affirmed in part, reversed in part, and remanded.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017 Page 6 of 6