FILED
Aug 19 2016, 8:07 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Glen E. Koch II
Boren, Oliver & Coffey, LLP
Martinsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua Perry Cruse, August 19, 2016
Appellant-Defendant, Court of Appeals Case No.
41A01-1512-PO-2345
v. Appeal from the Johnson Circuit
Court
C.C., The Honorable K. Mark Loyd,
Appellee-Plaintiff Judge
Trial Court Cause No.
41C01-1506-PO-331
Baker, Judge.
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[1] Joshua Cruse appeals the protective order entered by the trial court preventing
him from having contact with his ex-wife, C.C., except to communicate
regarding their children. Cruse argues there is insufficient evidence supporting
the protective order. We agree, and reverse.
[2] In June 2015, Cruse and C.C. were divorced. They have three children
together. After several incidents involving verbal disagreements between the
parents in front of or near the children, C.C. filed a petition for a protective
order on June 18, 2015. She did not seek to prevent Cruse from having contact
with the children, seeking only to limit the contact he was permitted to have
with her. The trial court granted an ex parte protective order the same day.
Following a November 24, 2015, hearing, the trial court reaffirmed the
protective order, which prohibited Cruse from communicating with C.C. except
on parenting time issues. Any communication regarding parenting time was
ordered to be done in writing or through their parenting coordinator. Cruse
now appeals.
[3] Initially, we note that C.C. has not filed an appellee’s brief. We need not
develop an argument on her behalf, and may reverse if Cruse is able to establish
prima facie error—error on the face of the order being appealed. Evans v.
Thomas, 976 N.E.2d 125, 126 (Ind. Ct. App. 2012).
[4] A person who has been a victim of “domestic or family violence” may file a
petition for a protective order. Ind. Code § 34-26-5-2. “Domestic or family
violence” is defined as follows:
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the occurrence of at least one (1) of the following acts committed
by a family or household member:
(1) Attempting to cause, threatening to cause, or
causing physical harm to another family or
household member.
(2) Placing a family or household member in fear of
physical harm.
(3) Causing a family or household member to
involuntarily engage in sexual activity by force,
threat of force, or duress.
(4) Beating (as described in IC 35-46-3-0.5(2)), torturing
(as described in IC 35-46-3-0.5(5)), mutilating (as
described in IC 35-46-3-0.5(3)), or killing a
vertebrate animal without justification with the
intent to threaten, intimidate, coerce, harass, or
terrorize a family or household member.
For purposes of IC 34-26-5, domestic and family violence also
includes stalking (as defined in IC 35-45-10-1) or a sex offense
under IC 35-42-4, whether or not the stalking or sex offense is
committed by a family or household member.
Ind. Code § 34-6-2-34.5. “Stalk” means “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.” Ind. Code § 35-45-10-1. “Harassment” means
“conduct directed toward a victim that includes but is not limited to repeated or
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continuing impermissible contact that would cause a reasonable person to suffer
emotional distress and that actually causes the victim to suffer emotional
distress.” I.C. § 35-45-10-2.
[5] In this case, C.C. testified as follows regarding her petition for a protective
order:
Cruse attended their son’s kindergarten graduation and told C.C. “he
would make a scene right there in front of everyone.” Tr. p. 8. He
followed C.C. “out into the parking lot telling the kids that . . . I was
keeping them from him.” Id. at 9. As a result, C.C. felt “intimidated.”
Id.
Another time, Cruse went to the school where C.C. works and the
children go to school and “pulled [C.C.] out of my class room and said
that he needed to talk to me then and there and made my boss feel
uncomfortable with him being in there.” Id.
More than once, he went to the school to have lunch with the children
and stayed “for an extended amount of time” with the children after
school employees asked him to leave. Id. He made “the kids’ teachers
uncomfortable as well.” Id.
On one occasion, Cruse attended their son’s baseball game. C.C. was
there with a male colleague. C.C. overheard Cruse tell his uncle that she
and the colleague “were probably banging[.]” Id. at 10. After the game,
Cruse “[g]ot up in this gentleman’s face and told him that he better not
come around our kids again and [the colleague] felt threatened enough
that he left.” Id.
In general, when Cruse “comes to events with the kids he tends to want
to take them away from me, even whenever I tell him not to. And that is
why I would prefer that he doesn’t come around . . . I don’t feel that him
taking them at a sporting event away from me and he won’t listen to me,
is appropriate.” Id.
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There is no evidence that Cruse attempted to, threatened to, or did cause any
acts of physical harm. There is no evidence that he placed C.C. in fear of
physical harm.
[6] The dissent places great emphasis on the fact that Cruse was “holding a
baseball bat” during the incident that occurred after the baseball game. Dissent
para. 5. Indeed, the dissent states that, our “rationale insulates perpetrators of
domestic violence from protective orders so long as those perpetrators are
mindful to expressly threaten only friends or associates of former partners while
in the presence of their former partners even while in the presence of their
former partners or even while holding a potential weapon.” Id. at para. 10. We
believe that this interpretation of our analysis goes several steps too far.
[7] When C.C. testified, she did not even mention the fact that Cruse was holding a
baseball bat during this incident. Tr. p. 9-10. Instead, the only evidence she
presented regarding this incident was that Cruse mentioned that C.C. and her
companion “were probably banging” and that Cruse then “got up in this
gentleman’s face and told him that he better not come around our kids again
and he felt threatened enough that he left.” Id. at 10. Cruse’s testimony is the
only evidence in the record regarding the bat during this incident. And he
testified that, after his son’s game, he retrieved his son’s bat, which Cruse had
purchased for him as a birthday present, so that they could later play baseball
together. Id. at 16. Cruse acknowledged that he was carrying the bat when he
argued with C.C. and her companion, but denied that he carried it in a
threatening way, testifying that he “had it down by my knee the whole time. I
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never, ever moved it.” Id. at 17. Eventually, C.C. took the bat from him and
looked like she was angry. Id. As the only evidence in the record regarding the
bat establishes that Cruse was holding it in a non-threatening manner, and C.C.
did not even mention the bat, we strongly disagree with the dissent that this
suffices to establish that Cruse attempted or threatened to cause physical harm
to anyone. We certainly do not believe that this holding in any way “insulates
perpetrators of domestic violence.”
[8] The only possible basis for the protective order that remains, therefore, is a
conclusion that Cruse’s actions constituted stalking. We find insufficient
evidence that C.C. was actually terrorized, frightened, intimidated, or
threatened. Although she did comment that at one point she felt intimidated,
most of her concerns were based upon the way other people were reacting to
Cruse. She was not frightened, she merely “preferred” that Cruse not be
around when she was with the children. We also find insufficient evidence that
Cruse’s course of conduct would cause a reasonable person to feel terrorized,
frightened, intimidated, or threatened.
[9] The judgment of the trial court is reversed.
Vaidik, C.J., concurs.
Najam, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Joshua Perry Cruse Court of Appeals Case No.
41A01-1512-PO-2345
Appellant-Defendant,
v.
C.C.,
Appellee-Plaintiff.
Najam, Judge, dissenting.
[10] I respectfully dissent. C.C. presented sufficient evidence to show that the Order
of Protection was warranted because Cruse had placed C.C. in fear of physical
harm and also had committed stalking. In particular, the evidence and the
reasonable inferences from the evidence show that Cruse engaged in
threatening behavior directed at C.C. and repeatedly harassed C.C. such that
she reasonably and actually felt intimidated by his conduct. While the majority
is correct that some of C.C.’s testimony referred to Cruse’s conduct towards her
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friends and colleagues, C.C. was present for each of the incidents, and a
reasonable fact-finder could conclude that Cruse’s conduct was directed at her.
[11] In determining the sufficiency of the evidence on appeal, we neither reweigh the
evidence nor resolve questions of witness credibility. A.S., 920 N.E.2d at 806.
We look only to the evidence of probative value and reasonable inferences
therefrom that support the trial court’s judgment. Id. And, because C.C. did
not file an appellee’s brief, the prima facie error rule applies. E.g., Maurer v.
Cobb-Maurer, 994 N.E.2d 753, 755 (Ind. Ct. App. 2013).
[12] As noted by the majority, a protective order may be issued to protect a family or
household member who has been placed in fear of physical harm by another
family or household member. I.C. § 34-6-2-34.5. A protective order may also
be issued to protect a person from stalking, which is defined 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.” I.C. § 35-45-10-1. And
“harassment” means “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.” I.C. § 35-45-10-2.
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[13] In her verified petition, C.C. alleged that she was a victim of domestic violence
and stalking. Appellant’s App. at 5.1 And C.C. described three incidents that,
she alleged, supported the issuance of the Ex Parte Order. 2 At the hearing, both
C.C. and Cruse testified regarding each of those three incidents, and C.C.
testified about other reasons she had sought a protective order.
[14] One of those incidents occurred at a baseball game, where Cruse threatened a
male friend of C.C.’s while holding a baseball bat. The majority discounts the
significance of Cruse’s conduct during that incident on the ground that “the
only evidence in the record regarding the bat establishes that Cruse was holding
it in a non-threatening manner, and C.C. did not even mention the bat” in her
testimony. Slip op. at 6. But a reasonable fact-finder could discredit Cruse’s
testimony and conclude from the totality of the evidence that Cruse had acted
in a threatening manner when he verbally confronted and warned C.C.’s male
friend while holding a bat.
[15] During her testimony, C.C. stated that Cruse “[g]ot up in [her male friend’s]
face and told him that he better not come around our kids again,” and that this
caused her friend to “fe[el] threatened enough that he left.” Tr. at 10. In
response to that testimony, Cruse acknowledged that he was holding a bat
1
In its Ex Parte Order of Protection, the trial court listed the children as protected persons.
2
To be sure, the trial court did not admit the petition into evidence during the evidentiary hearing. It is
mentioned here simply to place the testimony of the parties during that hearing concerning the three
incidents in context.
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when he “start[ed] to speak to the friend.” Id. at 17. Cruse also acknowledged
that his uncle “tr[ied] to take the bat” away from Cruse during the
confrontation, and that C.C. eventually did “take it.” Id.
[16] Thus, it is undisputed that Cruse confronted C.C.’s male friend. It is
undisputed that Cruse held a baseball bat when he did so. And it is undisputed
that Cruse’s uncle attempted to, and then C.C. did, take the bat away from
Cruse during that confrontation. The only dispute is the degree to which Cruse
may have threatened the male friend. C.C. testified that Cruse did; Cruse
testified that he did not. And one reasonable inference from the attempts to
take the bat away from Cruse during the confrontation is that people felt
threatened by Cruse’s possession of the bat when coupled with Cruse’s
behavior. The trial court credited the evidence that demonstrated that Cruse
had engaged in threatening behavior, as it was the court’s prerogative to do.
[17] Moreover, that Cruse had behaved in a threatening manner towards C.C.’s
friend while holding a bat is the only conclusion that considers the evidence
most favorable to the trial court’s judgment, whether under our prima facie
error standard of review or otherwise. See Maurer, 994 N.E.2d at 755. Indeed,
the majority’s reliance on the prima facie error rule to support its holding is
misplaced. The prima facie error rule does not speak to our independent review
of the record. And that standard of review is not a license for this court to
reweigh the evidence or judge the credibility of witnesses on appeal. See, e.g.,
Farmer v. Spradlin (In re B.N.C.), 822 N.E.2d 616, 619 (Ind. Ct. App. 2005)
(citing Slaton v. State, 510 N.E.2d 1343, 1347 (Ind. 1987)).
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[18] Rather, the prima facie error rule exists to relieve this court from “the burden of
developing arguments for the appellee.” Murfitt v. Murfitt, 809 N.E.2d 332, 333
(Ind. Ct. App. 2004). But I do not speculate as to what C.C.’s argument on
appeal might have been. I have merely reviewed the record on appeal in the
light most favorable to the trial court’s judgment, as we must. See A.S., 920
N.E.2d at 806. The prima facie error rule is not a rule that exists “to benefit the
appellant,” with whom the burden of persuasion on appeal remains in the face
of a presumptively valid trial court judgment. See State v. Moriarity, 832 N.E.2d
555, 558 (Ind. Ct. App. 2005).
[19] Again, the evidence most favorable to the trial court’s judgment demonstrates
that Cruse was holding a baseball bat while he threatened a man whom he
accused to be C.C.’s sexual partner in C.C.’s presence and in the presence of the
children. That evidence supports a reasonable inference that Cruse placed
C.C., a family or household member, in fear of physical harm even though
Cruse did not explicitly aim his conduct at C.C. See I.C. § 34-6-2-34.5(2). To
hold to the contrary insulates perpetrators of domestic violence from protective
orders so long as those perpetrators are mindful to expressly threaten only
friends or associates of former partners even while in the presence of their
former partners or even while holding a potential weapon. On the basis of this
incident alone, the trial court’s entry of the Protective Order should be affirmed.
See id.
[20] The evidence also independently supports the trial court’s judgment under
Indiana Code Section 35-45-10-1 because a reasonable fact-finder could
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conclude that Cruse stalked C.C. In addition to the incident at the baseball
game, C.C. testified that Cruse came to C.C.’s place of employment and made
her work colleagues feel “uncomfortable.” Tr. at 8. C.C. was also present at
the time when someone at C.C.’s workplace called the police to have Cruse
removed from the school premises. In light of those facts at her workplace and
the incident at the baseball game, a reasonable fact-finder could conclude that
Cruse committed stalking when he repeatedly harassed C.C. from which she
reasonably and actually felt threatened and suffered emotional distress. See I.C.
§ 35-45-10-1.
[21] We cannot judge the credibility of the witnesses from a cold record. Having
heard the testimony and observed the demeanor of the witnesses, the trial court
has concluded that Cruse’s behavior is not merely unpleasant and unreasonable
but that C.C. actually feels threatened by his behavior. While C.C. was not
represented by counsel at trial, she made her case, and the trial court believed
her. And, in this civil action, her burden of proof was by a preponderance of
the evidence. See A.S., 920 N.E.2d at 806.
[22] C.C. proved that Cruse deliberately initiated three aggressive encounters with
her, and Cruse’s conduct is symptomatic of controlling behavior, which is a
form of domestic violence. Considering the evidence most favorable to the trial
court’s judgment, I would hold that the trial court did not commit reversible
error when it concluded that C.C. had carried her burden of proof by a
preponderance of the evidence and issued an Order of Protection for C.C. and
her children.
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