MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Feb 22 2017, 10:06 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Megan J. Schueler Justin J. Harrison
Ferguson Law Slotegraaf Niehoff, P.C.
Bloomington, Indiana Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Han Chong, February 22, 2017
Appellant-Defendant, Court of Appeals Case No.
53A01-1609-PO-2073
v. Appeal from the Monroe Circuit
Court
Jung Hee Kim, The Honorable Valeri Haughton,
Appellee-Plaintiff. Judge
Trial Court Cause No.
53C08-1511-PO-2174
Bailey, Judge.
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Case Summary
[1] Han Chong (“Chong”) appeals an order of protection preventing him from
having contact with his business associate Jung Hee Kim (“Kim”), who alleged
that she had been the victim of stalking. Chong presents the issue of whether
the protective order was issued absent sufficient evidence that he stalked Kim. 1
We reverse.
Facts and Procedural History
[2] Kim purchased a sake bar in Bloomington, Indiana, and was permitted to enter
the United States from Korea on an investor’s visa. Chong, whose family
owned an adjoining business property, provided assistance to Kim both
professionally and personally. He trained Kim in restaurant operations and
offered professional advice. Additionally, he located an apartment for Kim and
loaned her a vehicle and cell phone. Chong, Kim, and a restaurant employee
named Gina socialized together. Chong also interacted with Kim’s children.
[3] On November 13, 2015, Kim petitioned for an order of protection, asserting as
grounds that she had been a victim of a sex offense and stalking. Kim alleged
1
Chong also alleged that the trial court abused its discretion by allowing Kim to continue testifying after her
attorney indicated that he had concluded his questions. We need not address this issue, as the issue of
sufficiency of the evidence is dispositive.
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that Chong had, on several occasions, made comments of a sexual nature that
caused Kim to feel “very ashamed and embarrassed.” (App. at 15.)
[4] On January 4 and January 8, 2016, the trial court conducted a hearing. At the
conclusion of the hearing, the trial court verbally ordered both parties to refrain
from contacting the other. On August 8, 2016, the trial court entered an order
of protection as requested by Kim, concluding that Kim had been a victim of
stalking. Chong now appeals.
Discussion and Decision
[5] Under Indiana Code § 34-26-5-2(a):
A person who is or has been a victim of domestic or family
violence may file a petition for an order for protection against a:
(1) family or household member who commits an act of domestic
or family violence; or
(2) person who has committed stalking under IC 35-45-10-5 or a
sex offense under IC 35-42-4 against the petitioner.
[6] “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.” I.C. § 35-45-10-1. “Harassment” means “conduct directed toward
a victim that includes but is not limited to repeated or continuing impermissible
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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.
[7] A protective order may be issued when a trial court finds, by a preponderance
of the evidence, that the respondent represents a credible threat to the safety of
the petitioner. Maurer v. Cobb-Maurer, 994 N.E.2d 753, 756 (Ind. Ct. App. 2013)
(citing I.C. § 34-26-5-9(f)). An improperly granted protective order has
significant ramifications; specifically, a violation of a trial court’s protective
order is punishable by imprisonment or a fine. C.V. v. C.R., 64 N.E.3d 850, 853
(Ind. Ct. App. 2016) (citing I.C. § 34-26-5-3). When reviewing the sufficiency
of evidence to support a protective order, the reviewing court does not reweigh
the evidence and will not judge witness credibility. Maurer, 994 N.E.2d at 755.
We consider only the probative evidence and reasonable inferences that support
the judgment. Id.
[8] Kim testified in support of the protective order that the following events
occurred:
Chong asked Kim for a kiss and Kim responded that she did not
want to kiss Chong;
Chong stated to Kim that if she slept with him, he would give her
preferential treatment;
Chong again referred to his interest in having a sexual
relationship with Kim, stated that he didn’t waste time, and they
would be sleeping together before the end of the year;
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Kim became aware that Chong had a handgun when Kim
borrowed Chong’s vehicle and he removed the handgun to keep
it away from Kim’s children;
In a text message exchange, Chong admitted to having sexual
thoughts when he recalled a visit that he [or he and Kim] had
made to an adult bookstore2 and he questioned whether Kim
thought he was dangerous; and
After Kim had filed for a protective order, Chong came into a
store, looked at Kim, and came close to the register where Kim
was purchasing cigarettes.
[9] Kim testified that Chong’s sexual overtures caused her to feel “shameful and
embarrassing [sic]” and that she “kind of felt threatened.” (Tr. At 60.) Kim
explained that, in Korea, private ownership of guns is not permitted and
Chong’s “representation” that he had a gun and text reference to “a dangerous
man” collectively made her feel that Chong was “really threatening.” (Tr. at
64.)
[10] From a subjective standpoint, Kim may have perceived a threat to herself or
experienced terror, fright, or intimidation. However, a protective order on
stalking grounds also requires the satisfaction of an objective test. The
petitioner must establish by a preponderance of the evidence that a “course of
conduct would cause a reasonable person to feel terrorized, frightened,
2
Kim testified that Chong drove to the store and went inside. She did not address whether or not she went
inside. According to Chong, he waited in a hallway while Kim made a purchase.
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intimidated, or threatened.” Cruse v. C.C., 58 N.E.3d 974, 977 (Ind. Ct. App.
2016).
[11] In Cruse, a panel of this Court found insufficient evidence of stalking where the
petitioner testified that her ex-husband: threatened to make a scene at their
child’s school; went to her place of employment and made her boss
uncomfortable; caused teachers to feel uncomfortable; made claims at a
baseball game that the petitioner “was probably banging a colleague” and then
confronted the colleague by “getting in his face.” Id. at 976. There was no
evidence of any threat of physical harm. Id. at 977.
[12] Likewise, in Maurer, we found insufficient evidence of stalking where the
evidence showed only that an ex-husband had sent the petitioner “constant
emails and text messages” but the petitioner did not testify as to the effects and
she did not claim that she had asked her ex-husband to stop contacting her. 994
N.E.2d at 755. The Court observed that “it is often the case that stalking is
found where contact between persons includes some form of physical threat”
but further observed that “there is no requirement that the contact at issue be
threatening on its face, and stalking may be found where other evidence is
sufficient to prove that the contact amounted to harassment.” Id. at 757-58.
However, where evidence of harassment is lacking, “the mere fact that contact
occurred between [the parties] on more than one occasion cannot – without
more – constitute stalking.” Id. at 757. The Maurer Court re-iterated that the
conduct must be such as to “cause a reasonable person to feel terrorized,
frightened, intimidated, or threatened.” Id.
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[13] Very recently, in C.V., we found that a protective order was unwarranted when
the conduct at issue consisted of the respondent’s leaving four notes at the
petitioner’s workplace, some of which were described as “kinky.” 64 N.E.3d at
851. The Court found it to be “significant” that there was no evidence that the
petitioner had asked the respondent to stop sending the notes or that he had
persisted after such a request. Id. at 854. Also, the contact “appeared to have
been relatively non-threatening.” Id. We concluded: “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.” Id.
[14] We find these decisions persuasive in the instant case. Kim did not ask Chong
to stop his allegedly intimidating communications before she petitioned for a
protective order. There is no evidence that Chong contacted Kim after the
petition was filed. The communications, although sexual in nature, did not
suggest that Chong intended sexual contact by force. Nor is there evidence that
Chong used his handgun to threaten or intimidate Kim. Given Kim’s historical
lack of contact with weapons, she may well have found Chong’s ownership of a
handgun to be unsettling. However, our review of the record leaves us with a
firm conviction that there was insufficient evidence to support a finding that the
conduct at issue would cause a reasonable person to feel terrorized, frightened,
intimidated, or threatened. The trial court’s issuance of the protective order
was in error.
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[15] Reversed.
Kirsch, J., and May, J., concur.
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