V.E. v. A.S. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 14, 2018
• Docket: 18A-PO-1226
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 14 2018, 6:37 am the defense of res judicata, collateral estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Darlene R. Seymour Jane H. Ruemmele Bryan L. Ciyou Hayes Ruemmele, LLC Ciyou & Dixon, P.C. Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

V.E., November 14, 2018 Appellant-Petitioner, Court of Appeals Case No. 18A-PO-1226 v. Appeal from the Hamilton Superior Court A.S., The Honorable William J. Hughes, Appellee-Respondent. Judge Trial Court Cause No. 29D03-1803-PO-1910

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 1 of 5 Case Summary [1] In May of 2017, then-twenty-eight-year-old V.E. and then-twenty-year-old A.S.

were engaging in sexual intercourse when they were interrupted by V.E.’s

mother. V.E. subsequently sought a protective order against A.S., claiming that

A.S. had committed a sex offense against her and had stalked her. The trial

court issued an Ex Parte Order for Protection (“Ex Parte Order”) and set the

matter for a hearing. Following the hearing, the trial court terminated the Ex

Parte Order and denied V.E.’s request for an order of protection, determining

that V.E. had failed to establish that either a sex offense or stalking had

occurred. V.E. challenges the trial court’s determination regarding the sex

offense on appeal. Because we conclude that the trial court’s determination is

supported by the record, we affirm.

Facts and Procedural History [2] Prior to the night in question, V.E. and A.S. performed in a jazz band and

attended some social events together. Although V.E. denied being involved in

a romantic relationship with A.S., she expressed interest in such a relationship

on various occasions.

[3] On the evening of May 3, 2017, the jazz band rehearsed and had dinner

together at the home V.E. shared with her mother. After rehearsal, A.S. stayed

and socialized with V.E. At some point, V.E. and A.S. began engaging in

sexual intercourse. They continued to do so until they were interrupted by

Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 2 of 5 V.E.’s mother. After V.E.’s mother made her presence known, V.E. expressed

her embarrassment before running up the stairs to her bedroom.

[4] The next day, V.E. sent A.S. a series of text messages. At first, V.E. admitted

to initiating sexual contact. V.E.’s texts later became accusatory and suggested

that A.S. had taken advantage of her when she was drunk. Two days after the

incident, V.E. sought medical treatment for an alleged rape.

[5] On March 1, 2018, V.E. filed a petition for a protective order against A.S.,

alleging that she had been the victim of a sex offense committed by A.S. Based

on the statements alleged in V.E.’s petition, the trial court granted an Ex Parte

Order and set the matter for a hearing. V.E.’s testimony during the two-day

hearing differed significantly from that of both her mother and A.S.

Specifically, her testimony regarding her alleged state of drunkenness and hers

and A.S.’s actions leading up to, during, and after intercourse contradicted the

largely consistent testimony presented by her mother and A.S. V.E.’s testimony

also contained contradictions to earlier statements she had given in connection

to the case. On April 30, 2018, the trial court terminated the Ex Parte Order

and denied V.E.’s request for an order of protection, finding that V.E. “has not

shown, by a preponderance of the evidence, that … a sex offense has occurred

sufficient to justify the issuance of an Order for Protection.” Appellant’s App.

Vol. II p. 8.

Discussion and Decision

Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 3 of 5 [6] V.E. contends that the trial court erred in denying her request for a protective

order against A.S.

Protective orders are similar to injunctions…. We apply a two- tiered standard of review: we first determine whether the evidence supports the findings, and then we determine whether the findings support the order. In deference to the trial court’s proximity to the issues, we disturb the order only where there is no evidence supporting the findings or the findings fail to support the order. We do not reweigh evidence or reassess witness credibility, and we consider only the evidence favorable to the trial court’s order. The party appealing the order must establish that the findings are clearly erroneous. Findings are clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made.

Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct. App. 2015) (citations and quotation

omitted).

[7] In challenging the trial court’s denial of her request for a protective order, V.E.

asserts that the trial court erroneously determined that she failed to prove by a

preponderance of the evidence that a sex offense occurred. While V.E. admits

that she and A.S. engaged in sexual intercourse, she argues that “the

undisputed evidence in this case is that the parties engaged in sexual intercourse

at a time when [V.E.] was very drunk” and “was not legally capable of

consenting to sexual conduct.” Appellant’s Br. p. 7.

[8] It is not undisputed, however, that V.E. was “very drunk.” While the record

indicates that V.E. drank at least some alcohol on the night in question, it

contains contradictory evidence relating to the amount of alcohol consumed

Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 4 of 5 and V.E.’s resulting level of drunkenness. The trial court, acting as the trier-of-

fact, found that V.E. failed to prove by a preponderance of the evidence that she

was so intoxicated that she could not give consent. V.E.’s claims on appeal

effectively amount to an invitation for this court to reassess her credibility and

reweigh the evidence, which we will not do. Fox, 45 N.E.3d at 798. The

evidence most favorable to the trial court’s order supports its determination that

V.E. failed to prove that a sex offense occurred. We therefore affirm the trial

court’s termination of the Ex Parte Order and denial of V.E.’s request for an

order of protection against A.S.

[9] The judgment of the trial court is affirmed.

Bailey, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 5 of 5