C v. v. C.R.

FILED
Nov 22 2016, 9:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT APPELLEE, PRO SE
Mark A. Bates C.R.
Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.V., November 22, 2016
Appellant, Court of Appeals Case No.
45A03-1606-PO-1282
v. Appeal from the Lake Circuit
Court
C.R., The Honorable Michael A.
Appellee. Sarafin, Magistrate
Trial Court Cause No.
45C01-1602-PO-36
Pyle, Judge.
Statement of the Case
[1] C.V. appeals the trial court’s issuance of a protective order against him in favor
of C.R. He argues that the trial court erred because C.R. did not produce
sufficient evidence that he stalked her and, therefore, that a protective order was
warranted. We agree and reverse the trial court’s decision. We remand with
instructions to vacate the protective order against C.V.
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[2] We reverse and remand with instructions.
Issue
Whether there was sufficient evidence to support the trial court’s
issuance of a protective order against C.V.
Facts
[3] In July of 2015, C.R. found a note on her car outside of her workplace at the
Department of Veterans Affairs (“V.A.”). The note “was basically saying
things about [her] physical attributes.” (Tr. 36). She was able to identify the
author as a Marine due to a reference in the note to “Semper-Fi,” but the note
did not otherwise contain any identifying information. (Tr. 38). Two weeks
later, C.R. found a second note on her car that “said about the same type of
thing” as the first note and again lacked any identifying information. (Tr. 37).
She filed a report about the note with the V.A. Police, and the police asked her
whether she had seen any patients who could have left the notes. She reviewed
her patients but could not determine who might have left them.
[4] Seven months later, C.R. found a third note on her car at work. It was “the
same type of note,” only “a little bit more kinky.” (Tr. 37-38). On another day,
she then found a fourth note on her car. After this note, C.R. was able to match
the dates on which she had found the four notes with dates that C.V. had
visited the V.A. as a patient. She forwarded this information to the officer
investigating the notes, and he then confirmed that C.V. had placed the note on
C.R.’s car when he reviewed the V.A.’s parking lot surveillance camera
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footage.1 This officer, Jeffrey Trama (“Officer Trama”), called C.V., and C.V.
admitted that he had left the notes. Officer Trama told C.V. to stop leaving the
notes, and C.V. did so.
[5] C.R. did not press criminal charges against C.V., but she filed a pro se petition
for an ex parte protective order against him on February 19, 2016.2 The trial
court granted C.R.’s petition on February 22, 2016 and issued the ex parte
protective order. However, on March 7, 2016, C.V. requested a hearing on the
protective order, and the trial court held a hearing on April 6, 2016.
[6] At the hearing, C.R. appeared pro se, and C.V. appeared represented by
counsel. The trial court asked C.R. if she would like to continue the hearing so
that she could retain an attorney, and she declined the trial court’s offer. The
trial court then told C.R.: “All right; well, ma’am, if you proceed to represent
yourself, you understand that the rules of evidence apply. Counsel may
interpose objections based on those rules of evidence[,] and you may not be
fully trained or versed in those rules; do you understand that?” (Tr. 7). C.R.
replied, “Yes,” and the hearing continued as planned. (Tr. 8).
[7] C.R. testified to the events described above and further described the notes she
had received. She said that in the third note, C.V. had written “your laugh is
1
The location of C.R.’s car when C.V. left the first three notes had previously prevented the officer from
identifying him in the surveillance footage.
2
This petition is not a part of the record.
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even more than music to my ears.” (Tr. 44). Then, she testified that in the
fourth note C.V. had written “I wish you could have been mine; things would
be so much far [sic] better for us. . . . X-O-X-O-X-O.” (Tr. 44). C.R.
considered this note “crazy-creepy.” (Tr. 38).
[8] Officer Trama also testified, and during his direct examination, C.R. attempted
to admit the four notes and the surveillance video of C.V. into evidence. C.V.’s
attorney objected on the grounds that C.R. had failed to tender either the notes
or video to C.V. and that C.R. had failed to lay a proper foundation for their
admission. The trial court sustained the objection, reminding C.R. that it could
not teach her how to lay a foundation for evidence. Thereafter, C.R. failed to
properly offer the notes or video for admission into evidence, and they were not
admitted.
[9] At the conclusion of the hearing, the trial court took the matter under
advisement. On May 6, 2016, it issued a protective order prohibiting C.V. from
contacting C.R. for two years, among other restrictions. As a basis for its order,
the trial court found that C.R. had shown by a preponderance of the evidence
that C.V. had stalked her and that C.V. represented a “credible threat to” her
safety. (App. 7). C.V. now appeals.
Decision
[10] On appeal, C.V. argues that C.R. failed to present sufficient evidence to support
the trial court’s issuance of the protective order. Specifically, he contends that
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there was no evidence that he stalked her as required for the issuance of a
protective order.
[11] Initially, we note that C.R. did not file an appellee’s brief. When an appellee
fails to submit a brief, we need not undertake the burden of developing
argument on the appellee’s behalf. A.S. v. T.H., 920 N.E.2d 803, 805 (Ind. Ct.
App. 2010). Rather, we will reverse the trial court’s judgment if the appellant’s
brief presents a case of prima facie error. Id. Prima facie error in this context is
defined as “‘at first sight, on first appearance, on the face of it.’” Id. (quoting
Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). When the
appellant is unable to meet his burden, we will affirm. Id. at 806. In making
this determination, we will neither reweigh the evidence nor resolve questions
of credibility. Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 2004). We look
only to the evidence of probative value and reasonable inferences that support
the trial court’s judgment. Id.
[12] This Court has noted the “‘significant ramifications of an improperly granted
protective order.’” J.K. v. T.C., 25 N.E.3d 179, 181 (Ind. Ct. App. 2015)
(quoting Barger v. Barger, 887 N.E.2d 990, 993 (Ind. Ct. App. 2008)). “For
example, at the state level, violation of the trial court’s protective order is
‘punishable by confinement in jail, prison, and/or a fine.’ I.C. § 34-26-5-3. . . .
Thus, an improperly granted protective order may pose a considerable threat to
the respondent’s liberty.” Id.
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[13] In order for a trial court to issue a protective order, the petitioner must prove by
a preponderance of the evidence that stalking has occurred. Tons, 815 N.E.2d
at 511; see also I.C. § 34-26-5-2(a)(2) (allowing a petitioner to file a petition for a
protective order against a “person who has committed stalking”). Indiana law
defines “stalking” as “‘a knowing or an 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.’” Maurer v. Cobb-Maurer, 994 N.E.2d 753, 757 (Ind. Ct. App. 2013)
(quoting I.C. § 35-45-10-1) (emphasis added).
[14] Here, C.V. claims that C.R. did not produce any evidence to support the trial
court’s conclusion that he stalked her because the contents of the notes were
never admitted into evidence. He contends that, because there was no evidence
of the content of the notes, there was no evidence that his actions would have
caused a reasonable person to feel terrorized, frightened, intimidated, or
threatened. Accordingly, we must consider whether the evidence that C.V. left
C.R. four notes and C.R.’s vague testimony regarding the content of those notes
were sufficient to prove that a reasonable person would have felt terrorized,
frightened, intimidated, or threatened by C.V. We conclude that they were not.
[15] As a basis for this conclusion, we find our decision in Maurer persuasive.
There, we held that a man had not stalked his former wife, even though his
former wife alleged that he had sent her “constant emails and text messag[es].”
Maurer, 994 N.E.2d at 755. The wife had admitted one email from him into
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evidence and had testified that it was “one of many emails.” Id. In the email,
he wished her a Happy Valentine’s Day, told her he loved her, and told her that
he wanted to restore their marriage. Id. He also told her that he forgave her for
her romantic relationship with another man and that he disapproved of divorce.
Id.
[16] In our opinion on appeal, we noted that contact does not have to be threatening
on its face to constitute stalking. Id. at 757. However, we held that contact “on
more than one occasion cannot—without more—constitute stalking.” Id. We
concluded that there was not sufficient evidence of stalking in Maurer because,
in part, we found the wife’s testimony that she had received “many” and
“constant” emails from her former husband vague. Id. at 758-59. We noted
that she had not provided any dates for the emails, other than the email she had
admitted into evidence, or an estimate of the total number of emails she had
received. Id. at 758. We concluded that “‘[m]any’ emails over the course of an
undisclosed timeframe” could have been “as few as two or as numerous as two
million.” Id. at 759. We also found it significant that the wife had not
produced any evidence that she had asked her former husband to stop sending
her emails. Id. This factor was significant because “one can hardly characterize
mutual communication between two parties as harassment within the meaning
of the stalking statute.” Id. Based on these two factors, we concluded that the
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wife had not produced sufficient evidence of contact that would have caused a
reasonable person to feel terrorized, frightened, intimidated or threatened. 3 Id.
[17] Based on our decision in Maurer, we conclude that C.R. did not produce
sufficient evidence that C.V.’s contact with her constituted stalking. Although
her testimony regarding the number of times C.V. contacted her was not vague,
it is clear that his contact with her was relatively insignificant. He left notes on
her car on four occasions, and an interval of seven months passed between two
of the notes. C.V.’s contact can hardly be considered frequent. More
significantly, though, as in Maurer, C.R. did not produce any evidence that she
asked C.V. to stop sending her the notes or that he persisted after she asked him
to stop. To the contrary, Officer Trama testified that C.V. did not send any
notes once he contacted him and asked him to stop.
[18] Finally, while this was not a factor in Maurer, we must note that the nature of
C.V.’s contact appears to have been relatively non-threatening. Specifically, he
contacted C.R. in a public area on dates that happened to coincide with his
treatment at the V.A. He did not make any attempts to express the contents of
his notes in person or in private. Instead, he left the notes in a public location
where C.R. would find them. These factors might not be dispositive under
3
For the sake of comparison, we also noted in Maurer that we had affirmed the trial court’s issuance of a
protective order in Andrews v. Ivie, 956 N.E.2d 720 (Ind. Ct. App. 2011). Id. at 758. In Andrews, there was
evidence regarding “the extent of the contacts, numerous unwelcome gifts from Andrews, Ivie’s repeated
demands that he leave her alone, her attempts to avoid contact from him, and Ivie’s testimony regarding the
effect of the contacts on her.” Id. (discussing Andrews, 956 N.E.2d at 724).
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different circumstances. However, because there was no evidence that the
contents of the notes were threatening, we cannot conclude that there was
sufficient evidence that a reasonable person would have felt terrorized,
frightened, intimidated, or threatened by C.V.’s acts under these circumstances.
Accordingly, we conclude that C.V. has presented a prima facie case that C.R.
did not produce sufficient evidence that C.V. stalked her.4 As a result, we
reverse the trial court and remand with instructions for the trial court to vacate
the protective order.
[19] Reversed and remanded with instructions.
Bradford, J, and Altice, J., concur.
4
Because we have concluded that a reasonable person would not have felt terrorized, frightened, intimidated,
or threatened by C.V.’s acts, we need not address whether C.R. actually felt terrorized, frightened,
intimidated, or threatened. See I.C. § 35-45-10-1.
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