Marylinda Gossweiler v. Swati Singh (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Apr 15 2020, 7:04 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 ATTORNEYS FOR APPELLEE
Ian T. Keeler David L. Guevara
Clapp Ferrucci James R. A. Dawson
Indianapolis, Indiana Taft Stettinius & Hollister LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marylinda Gossweiler, 1 April 15, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PO-2524
v. Appeal from the Boone Superior
Court
Swati Singh, The Honorable Matthew Kincaid,
Appellee-Respondent Judge
Trial Court Cause No.
06D01-1908-PO-1172
May, Judge.
1
18 U.S.C. § 2265(d)(3) applies only to parties who have received an order for protection; because
Gossweiler is not a party “protected under” a protective order, initials need not be used. See Costello v.
Zollman, 51 N.E.3d 361, 362 n.1 (Ind. Ct. App. 2016), trans. denied.
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[1] Marylinda Gossweiler appeals the trial court’s denial of her petition for an
order for protection. She argues the evidence leads unerringly and
unmistakably to a decision opposite that reached by the trial court. We affirm.
Facts and Procedural History
[2] At all relevant times, Gossweiler primarily lived in Colorado. She served as the
managing agent of Vosetat LLC and managed property in Indiana, including a
property commonly known as 3511 Willow Road in Zionsville (“Gossweiler
Property”). Swati Singh and her husband lived on a property abutting the
Gossweiler Property, commonly known as 3680 Willow Road (“Singh
Property”).
[3] The Gossweiler Property was encumbered by an easement. A private road ran
along the easement on the Gossweiler Property near the property line dividing
the Gossweiler Property from the Singh Property. The prior owners of the
Singh Property erected a gate on the private road in order to prohibit
unauthorized vehicle access. The gate required a code in order to open.
Gossweiler was attempting to sell the Gossweiler Property in early 2019, but
she did not have the code to open the gate. Therefore, she had her realtor
attempt to contact Singh’s realtor to get the code, but the effort was
unsuccessful. Gossweiler attempted to contact Singh’s realtor herself, but she
was also unsuccessful. So, Gossweiler decided to contact Singh and her
husband directly. Gosseiler had never met or spoken with Singh and her
husband before, but she found their contact information on the internet.
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[4] Gossweiler called the dental practice owned by Singh and her husband three
times on June 11, 2019, and she left at least two messages. That evening, Singh
called Gossweiler and left a voicemail on her phone:
Hi, uh, we have been warned by the prior owners and other
people in the area that, um, you are a lunatic and you happen to
do this every time the house sells, so you looked us up and called
our office today three times, and you were being ridiculous, and
saying that you have an emergency. Don’t ever do that again,
don’t call our office, don’t tell us that you have an emergency.
For all we care you can go to hell. Ok. Don’t ever try to reach
out to us. You’re a creep. If you ever step foot on our property
at 3680 N. Willow Road we will call the police. And we do keep
guns, and I do shoot. So I will shoot you if you ever step on my
property. Don’t ever call us. Don’t ever come to us.
(Plaintiff’s Ex. 7.) Upon hearing the message, Gossweiler felt “sick.” (Tr. Vol.
II at 19.) She initially contacted the Denver Colorado Police Department, and
then she contacted the Zionsville Police. The Zionsville Police composed an
incident report.
[5] On June 21, 2019, Gossweiler’s attorney sent a letter to Singh stating that
Vosetat LLC “demands that you immediately and permanently remove the
gate and do nothing to restrict my client and its agents, invitees, licensees,
and contractors from accessing its Properties pursuant to the terms of the
Driveway Agreement.” (Plaintiff’s Ex. 9) (emphasis in original). Singh’s
counsel provided the gate code to Gossweiler’s counsel.
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[6] In August 2019, Gossweiler visited the Gossweiler Property, and she noticed
her Property adjoining the private drive was “razed.” (Tr. Vol. II at 24.) Singh
and her husband had hired a contractor to clear the brush on the Singh Property
near the private drive. On the contractor’s own initiative, he cut down foliage
on Gossweiler’s property. Mulberry bushes and other plants had been cut along
approximately 400 yards of the drive. Gossweiler did not want this vegetation
removed because she wished to maintain natural growth on the Gossweiler
Property in order to preserve the “ambiance of the land.” Id. Gossweiler
contacted the Zionsville Police again, and the Police completed another
incident report.
[7] Gossweiler returned to the Gossweiler Property days later with Yvette Lynn
from Altum’s Landscaping in order to assess the damage. Singh noticed
Gossweiler and Lynn walking along the private drive. Singh went out onto her
porch and yelled at Gossweiler and Lynn to identify themselves. Neither
Gossweiler nor Lynn did so, and Singh walked to a distance of about thirty to
forty feet away from them. Singh then paralleled their movements along the
drive and videotaped them. Gossweiler returned to the Gossweiler Property
with her insurance adjuster a couple of days later, and Singh watched from her
house as Gossweiler and the insurance adjuster walked along the private drive.
[8] On August 9, 2019, Gossweiler filed a petition for protection order.
Gossweiler’s petition alleged Singh “[t]hreatened to shoot [her] with a gun.
Destroyed 400 yards of [her] property. Yells at [her] when she sees [her].
Video records [her] & guests without permission.” (App. Vol. II at 6.) Singh
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also filed a petition for protection order under a separate cause number. The
trial court held a consolidated hearing on both petitions on September 6, 2019.
The trial court denied Singh’s petition during the hearing, and the court took
Gossweiler’s petition under advisement. On October 1, 2019, the trial court
issued an order denying Gossweiler’s petition.
Discussion and Decision
[9] The Indiana Civil Protection Order Act (“CPOA”) provides, “A person who is
or has been subjected to harassment may file a petition for an order for
protection against a person who has committed repeated acts of harassment
against the petitioner.” Ind. Code § 34-26-5-2(b). Harassment, as defined in the
criminal statutes outlawing stalking, is “conduct directed toward a victim that
includes but is not limited to repeated or continuing impermissible conduct 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
conduct must present “a credible threat to the safety of a petitioner or a member
of a petitioner’s household.” Ind. Code § 34-26-5-9(g). “Repeated” means
“more than once.” Johnson v. State, 721 N.E.2d 327, 332-33 (Ind. Ct. App.
1999), trans. denied. Prior to July 1, 2019, “impermissible conduct” was defined
as including, but not being limited to, “knowingly or intentionally following or
pursuing the victim.” Ind. Code § 35-45-10-3 (1993). Effective July 1, 2019, the
definition of impermissible conduct was clarified to explicitly include following
or pursuing the victim; communicating with the victim in writing, by telephone,
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or through electronic means; or posting on social media. Ind. Code § 35-45-10-
3 (2019).
[10] The CPOA and like statutes are meant “to prohibit actions and behavior that
cross the lines of civility and safety in the workplace, at home, and in the
community.” Torres v. Ind. Family & Social Services Admin., 905 N.E.2d 24, 30
(Ind. Ct. App. 2009). We construe the CPOA “to promote the protection and
safety of all victims of harassment in a fair, prompt, and effective manner.”
Ind. Code § 34-26-5-1. The petitioner for an order for protection bears the
burden of proof and must prove entitlement to the order by a preponderance of
the evidence. Costello v. Zollman, 51 N.E.3d 361, 367 (Ind. Ct. App. 2016), trans.
denied. A trial court has discretion to grant protective relief pursuant to the
CPOA. Id.
[11] We neither reweigh the evidence nor judge the credibility of the witnesses. Id.
“We consider only the evidence of probative value and reasonable inferences
that support the judgment.” Id. We will reverse the denial of a petition for an
order of protection “only if we are convinced that the evidence as a whole leads
unerringly and unmistakably to a decision opposite that reached by the trial
court.” Id. Gossweiler argues the record does not contain sufficient evidence to
sustain the trial court’s judgment. She contends Singh’s voicemail, the
destruction of vegetation on her property, Singh’s actions when Gossweiler
visited the Gossweiler Property, and Singh’s withholding of the gate code from
Gossweiler were all acts of harassment.
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1. Voicemail Message
[12] Gossweiler argues Singh’s voicemail message constitutes an act of harassment.
Gossweiler likens her case to Smith v. State, 802 N.E.2d 948 (Ind. Ct. App.
2004). In Smith, the defendant told Allen County Police Officer Adams that
“he would be ‘looking out for him with his 7.62,’ referring to the ammunition
used in an assault rifle.” Id. at 950 (internal citation omitted). The defendant
then left several voicemail messages for Officer Adams and another police
officer, and the State charged him with stalking. Id. We first held that a
stalking conviction could be based on phone calls alone. Id. at 954. We then
held that the jury could have reasonably inferred from the content of the
defendant’s messages that more than one message the defendant left for Officer
Adams was threatening and the messages constituted impermissible conduct.
Id. at 954-55. Gossweiler believes Singh’s voicemail was equivalent to the
threats the defendant made in Smith. Gossweiler testified the voicemail caused
her distress. She repeatedly characterized Singh’s voicemail as a “threat on
[her] life.” (Tr. Vol. II at 28-29.)
[13] However, the case at bar differs from Smith because Singh left one voicemail
rather than the several that Smith left for Officer Adams. Also, Singh did not
initiate the contact between herself and Gossweiler. We have observed that
“stalking requires some evidence that the actor is the one looking for the
victim.” Tisdial v. Young, 925 N.E.2d 783, 786 (Ind. Ct. App. 2010) (holding
error to grant protective order when the person seeking the order for protection
initiated each encounter).
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[14] While Singh’s voicemail could certainly be considered unneighborly and
insulting, the core message of the voicemail was Singh’s desire to stay away
from Gossweiler and to have Gossweiler stay away from her. There is no
evidence Singh sought out contact with Gossweiler. Rather, she left the
voicemail for Gossweiler when she returned Gossweiler’s call. Additionally,
while Singh’s husband kept a gun in the house, Singh testified that she had
never fired a gun and did not own a gun. The judge could have reasonably
inferred Singh’s reference to shooting Gossweiler if she stepped on Singh’s
property did not represent a credible threat. See Maurer v. Cobb-Maurer, 994
N.E.2d 753, 759 (Ind. Ct. App. 2013) (holding ex-husband’s e-mails and texts
to ex-wife would not cause a reasonable person to feel terrorized, frightened,
intimidated, or threatened).
2. Removal of Vegetation
[15] The second alleged act of harassment concerns the destruction of vegetation on
the Gossweiler Property abutting the easement. A person can threaten or
intimidate another by destroying property. See Mysliwy v. Mysliwy, 953 N.E.2d
1072, 1077 (Ind. Ct. App. 2011) (holding ex-husband’s acts of causing extensive
damage to ex-wife’s home and clothes constituted domestic violence sufficient
to enter order for protection), trans. denied. Gossweiler testified that she felt
“[s]ick” upon seeing the removed brush, and she saw it as an “act of
aggression.” (Tr. Vol. II at 27.)
[16] However, “the fact finder is best positioned to judge the credibility of [the]
witnesses, is free to credit or discredit testimony, and weigh conflicting
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evidence.” Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011). Here, Singh
testified that she did not direct her landscaper to remove the vegetation. The
landscaper did so on his own initiative. During the hearing, the trial court
stated that the incident with “the brush is not harassment. It may have been
improper, it may have been unlawful, it may have been trespass, it may be
negligence, it is not harassment.” (Tr. Vol. II at 124.) Singh’s testimony
supports the trial court’s finding. See Costello, 51 N.E.3d at 367 (holding
evidence did not lead unerringly and unmistakably to a decision opposite that
of the trial court because the respondent’s testimony supported trial court’s
decision).
3. Gossweiler’s Visits with Landscaper and Insurance
Adjuster
[17] Gossweiler’s third and fourth allegations of harassment concern when Singh
watched her during her visits to the Gossweiler Property. Gossweiler argues
Singh’s actions of asking Gossweiler and Lynn to identify themselves, following
them as they walked along the private road, and videotaping them amount to
stalking. She contends Singh’s behavior was equivalent to the behavior of the
defendant in the case of Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App. 2015).
In Sandleben, the defendant followed a thirteen-year-old girl around a Target
store and surreptitiously videotaped her. Id. at 130. Approximately nine
months later, the defendant followed and videotaped the thirteen-year-old girl
again as she and her family shopped in a Michaels store. Id. at 131. He would
sometimes get as close as arms-length to the girl, and he did not appear to be
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shopping. Id. at 131-32. We held the State presented sufficient evidence to
sustain the defendant’s conviction for stalking because he intentionally followed
the young girl, making the young girl feel threatened. Id. at 132.
[18] We deem the comparison to Sandleben inapposite. A stranger following a
young girl around two stores while not shopping at either store raises the
specter that the stranger may kidnap or sexually abuse the young girl. The
same danger is simply not present when a neighbor who remains on her own
property follows, videotapes, and asks people walking along the edge of her
property to identify themselves. Gossweiler’s argument is another request for
us to reweigh the evidence, which we will not do. See Andrews v. Ivie, 956
N.E.2d 720, 723-24 (Ind. Ct. App. 2011) (refusing appellant’s requests to
reweigh the evidence).
[19] Gossweiler also argues Singh’s act of watching Gossweiler and her insurance
adjuster as they walked along the Gossweiler Property was an incident of
harassment. Gossweiler testified that she thought Singh videotaped her and the
insurance adjuster while they were walking along the Gossweiler Property.
Singh testified she remained in her house while Gossweiler and the insurance
adjuster toured the property and that, while she did watch them, she did not
videotape them. Nonetheless, even if Singh videotaped Gossweiler and the
insurance adjuster, such action does not unerringly and unmistakably amount
to harassment. See Sandelben, 29 N.E.3d at 133 (“First, it was not Sandleben’s
act of videotaping that formed the basis for the stalking charge that he claims
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unconstitutionally restricted his right to speak. Rather, his intentional, repeated
acts of harassing A.S. by following her were the basis for the stalking charge.”).
4. Gate Code
[20] On appeal, Gossweiler alleges Singh’s months-long delay in providing her with
the gate code constituted a fifth act of harassment. However, withholding a
gate code does not present “a credible threat to the safety of a petitioner or a
member of a petitioner’s household.” Ind. Code § 34-26-5-9(g). Further, it is
not impermissible contact because it does not involve directing communications
toward someone or following someone. See Ind. Code § 35-45-10-3. We
interpret an unambiguous statute according to the plain and obvious meaning
of the words in the statute. Datzek v. State, 838 N.E.2d 1149, 1155 (Ind. Ct.
App. 2005) reh’g denied, trans. denied. Here, the statutes are unambiguous, and
their plain language indicates that the delay in Singh giving Gossweiler the gate
access code does not amount to an act of harassment.
[21] At the conclusion of the hearing, the trial court stated:
So, from the bench I am going to order that [Singh] cause to be
provided to [Gossweiler] at all times the access code to the gate.
That is an order from the bench here. I am going to take the
remainder of this issue under advisement as to whether or not a
protective order should be issued.
(Tr. Vol. II at 154.) Gossweiler encourages us to remand the case because the
trial court’s written order did not incorporate the order from the bench that
Singh always keep Gossweiler apprised of the gate code. Similarly, Singh
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argues the case should be remanded with instructions for the trial court to
vacate the above order from the bench.
[22] However, we find remand unnecessary. The CPOA gives the trial court
authority to fashion relief when granting an order for protection, but it does not
give the trial court authority to both grant relief to a petitioner and deny the
petition. Ind. Code § 34-26-5-9(d) (“A court may grant the following relief . . .
in an order for protection or in a modification of an order for protection . . .”);
Ind. Code § 34-26-5-9(g) (“Upon a showing of domestic or family violence or
harassment by a preponderance of the evidence, the court shall grant relief
necessary to bring about a cessation of the violence or the threat of violence.”).
But here, there is a seeming conflict between the court’s order from the bench
and the written order denying Gossweiler’s petition for an order for protection.
[23] When a trial court’s written and oral orders conflict, we try to discern the trial
court’s intent. See Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010)
(“When oral and written sentencing statements conflict, we examine them
together to discern the intent of the sentencing court.”), reh’g denied. The trial
court determined that Gossweiler did not meet the statutory requirements for
issuance of an order for protection. (See App. Vol. II at 5) (“The Petitioner has
not shown, by a preponderance of the evidence, that harassment has occurred
sufficient to justify the issuance of an Order for Protection.”). Therefore, the
court’s intention was not to grant Gossweiler relief. The trial court’s directive
that Singh keep Gossweiler apprised of the gate access code was a suggestion
rather than an enforceable order of the court. See Dowell v. State, 873 N.E.2d 59,
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(Ind. 2007) (holding defendant was to serve sentence announced in written
order even though it conflicted with oral sentencing statement). 2
Conclusion
[24] The evidence supports the trial court’s determination that Gossweiler failed to
prove harassment by a preponderance of the evidence. The trial court could
reasonably conclude that Singh’s voicemail did not pose a credible threat. Also,
the record supports the inference that Singh’s conduct while Gossweiler visited
the Gossweiler Property with her landscaper and with her insurance adjuster
was the action of a vigilant neighbor rather than harassment. Additionally, the
destruction of plants on Gossweiler’s property was done by an independent
contractor and not at Singh’s direction. Gossweiler’s allegation regarding
Singh’s failure to disclose the gate code does not qualify as harassment pursuant
to the plain language of the governing statutes. Therefore, we affirm the trial
court.
[25] Affirmed.
Robb, J., and Vaidik, J., concur.
2
Nonetheless, we trust there will not be an issue in the future with Singh providing Gossweiler with the
gate access code because Singh avers in her brief that she “has no problem” providing the code to
Gossweiler. (Appellee’s Br. at 15.)
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