A.S. and J.S. v. D.C. (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 21 2019, 8:48 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
Mark A. Bates
Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.S. and J.S., November 21, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-PO-156
v. Appeal from the Lake Circuit
Court
D.C., The Honorable Marissa
Appellee-Plaintiff. McDermott, Judge
The Honorable Alice Kuzemka,
Referee
Trial Court Cause Nos.
45C01-1808-PO-521
45C01-1808-PO-522
Pyle, Judge.
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Statement of the Case
[1] Wife A.S. (“A.S.”) and husband J.S. (“J.S.”) appeal the trial court’s grant of
protection orders to their neighbor, D.C. (“D.C.”). Specifically, A.S. and J.S.
argue that there is insufficient evidence to support the issuance of the protection
orders. Concluding that the evidence is sufficient, we affirm the trial court’s
grant of the protection orders to D.C.
[2] We affirm.
Issue
Whether there is sufficient evidence to support the trial court’s
issuance of the protection orders to D.C.1
Facts
[3] In July 2018, A.S. filed a petition seeking an order of protection against O.C.
(“O.C.”), the husband of D.C. Less than a week later, D.C. filed petitions
seeking orders of protection against A.S. and J.S. The trial court held a joint
hearing on the three petitions, and all of the parties appeared pro se.
[4] Testimony supporting D.C.’s petitions for the orders of protection against A.S.
and J.S. revealed that the two sets of neighbors were frequently involved in both
1
A.S. and J.S. also argue that D.C. “relied upon hearsay evidence in the form of police reports to make her
case.” Appellants’ Br. at 9. According to A.S. and J.S., the trial court abused its discretion “in allowing the
use of the reports[.]” Appellants’ Br. at 9. A.S. and J.S. did not raise this issue at trial and have therefore
waived appellate review of it. See McClendon v. State, 671 N.E.2d 486, 489 (Ind. Ct. App. 1996) (explaining
that a party cannot raise an issue for the first time on appeal).
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verbal and physical altercations. For example, D.C. testified that during one of
the altercations in March 2018, A.S. left her house and walked briskly in the
street towards D.C. and O.C. As she was walking, A.S. yelled, “look at this,
bitch, you’re gonna get yours. You’re gonna get yours, you think your son’s
the only one that can live in peace? You think you can do that?” (Tr. Vol. 2 at
37). A.S. then slapped O.C.’s cell phone out of his hand. The phone “went
airborne and landed in the middle of the street.” (Tr. Vol. 2 at 40). The police,
who had already been dispatched to the scene, arrested A.S. and charged her
with battery and disorderly conduct.
[5] D.C. further testified that in another altercation in February 2018, O.C. was
blowing snow on their driveway and sidewalk when J.S. began making
“threatening gestures, provoking gestures.” (Tr. Vol. 2 at 44). J.S. grabbed “an
axe handle or some piece of wood” and waved it in threatening manner. (Tr.
Vol. 2 at 44). When police arrived at the scene, there were approximately eight
people on each side of the street yelling at each other.
[6] D.C. also testified about an incident that had occurred in December 2017.
According to D.C., when she arrived home from work, A.S., J.S., and their son
were outside. J.S. yelled to D.C. that he “bet [she was] gonna get [her] ass
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beat[.]” (Tr. Vol. 2 at 33). Throughout the altercation, J.S. told D.C. ten times
that she was “gonna get [her] ass beat, bitch.” (Tr. Vol. 2 at 34).2
[7] Following D.C.’s description of the incidents, the trial concluded as follows:
You know what, not to sound snotty, but I have heard enough
here. All of these Protective Orders are staying in place because
there’s no way I’m dropping any of these. Obviously people
have been arrested here on both sides, people are still facing
criminal charges on this. . . . Stay on your side of the street, on
your property[.] No stalking. No nothing against the other ones.
Stay off their property. Don’t contact them. Don’t harass them.
. . . Don’t taunt them across the street. Make your kids leave
them alone. Leave their kids alone. No nasty gestures. I mean,
you’re already involved in, in, in being arrested and stuff here,
don’t make this go any further, and I’m putting all of this in place
for two years because I don’t see that this is gonna simmer down
and go away.
(Tr. Vol. 2 at 46, 49). A.S. and J.S. now appeal the trial court’s grant of the
protection orders to D.C.3
Decision
[8] At the outset, we note that D.C. has failed to file an appellee’s brief. When an
appellee fails to submit a brief, we need not undertake the burden of developing
2
The State charged J.S. with battery as a result of this altercation. Although J.S. has advised this Court that
the State dismissed the battery charge during the pendency of this appeal, the facts surrounding the
altercation remain relevant to our determination regarding the sufficiency of the evidence to support the
orders of protection.
3
O.C. does not appeal the trial court’s grant of the protection order to A.S.
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an argument for the appellee. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct.
App. 2010). Applying a less stringent standard of review, we will reverse the
trial court if the appellant can establish prima facie error. Id. at 784-85. Prima
facie error in this context is defined as at first sight, on first appearance, or on
the face of it. Id. at 785. Where an appellant does not meet this burden, we will
affirm. Id.[9] A.S. and J.S. argue that there is insufficient evidence to support the trial court’s
grant of D.C.’s request for protection orders. When reviewing the sufficiency of
the evidence to support a protection order, we neither reweigh the evidence nor
judge the credibility of witnesses. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind.
Ct. App. 2010). We consider only the probative evidence and reasonable
inferences therefrom supporting the trial court’s judgment. Id.[10] 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 of protection[.]” IND. CODE § 34-26-5-2(a). A finding that domestic
violence has occurred sufficient to justify the issuance of a protection order
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 § 35-45-10-1. IND. CODE § 34-6-2-34.5.
[11] In order 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. M.R.
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v. B.C., 120 N.E.3d 220, 223 (Ind. Ct. App. 2019). Further, although A.S. and
J.S. argue that “the protection order statute was never intended to resolve
disputes between the Hatfields and the McCoys[,]” (Appellant’s Br. at 9), 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. See Parkhurst v. Van Winkle, 786 N.E.2d 1159,
1161-62 (Ind. Ct. App. 2003) (citing IND. CODE § 34-6-4-34.5).
[12] In this case, D.C. was required to establish by a preponderance of the evidence
that A.S. and J.S. committed stalking. Stalking is defined, in relevant part, as
“a knowing or intentional course of conduct involving repeated or continuing
harassment of 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. Harassment 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 emotional distress.” IND. CODE § 35-45-10-2. The
term “repeated” in the stalking statute means more than once. Johnson v. State,
721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999), trans. denied.
[13] In support of their argument that there is insufficient evidence to support the
order of protection, A.S. and J.S. direct us to Tisdial, 925 N.E.2d at 783. There,
Young was annoyed because Tisdial frequently left bread on a walking path in
their apartment complex. Young confronted Tisdial, and Tisdial ran toward
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Young and threatened to spray her with a can of mace. One month later,
Young confronted Tisdial about leaving bread, and Tisdial sprayed Young with
the mace. Young filed a petition seeking an order of protection, which the trial
court granted. Tisdial appealed, and this Court concluded that the evidence
was not sufficient to support the order of protection because “there [was] no
evidence that Tisdial came looking for Young. To the contrary, their
encounters in the Park resulted from the fact both women walked in the Park
on a daily or near-daily basis, and Young verbally initiated each encounter.”
Id. at 786.
[14] In contrast, the evidence in this case reveals that both A.S. and J.S. repeatedly
sought out or pursued D.C. to verbally assault and threaten her, rendering
Tisdial unavailing. We further conclude that D.C.’s testimony is sufficient to
establish by a preponderance of the evidence that A.S. and J.S. engaged in a
knowing or intentional course of conduct involving repeated or continuing
harassment of D.C. that would cause a reasonable person to feel terrorized,
frightened, intimidated, or threatened and that actually caused D.C. to feel the
same. The trial court heard the testimony and observed the demeanor of the
witnesses. The arguments of A.S. and J.S. are merely requests for us to reweigh
the evidence and reassess witness credibility, which we cannot do. See id. at
785.
[15] Affirmed.
Robb, J., and Mathias, J., concur.
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