MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Nov 14 2018, 6:37 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Darlene R. Seymour Jane H. Ruemmele
Bryan L. Ciyou Hayes Ruemmele, LLC
Ciyou & Dixon, P.C. Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
V.E., November 14, 2018
Appellant-Petitioner, Court of Appeals Case No.
18A-PO-1226
v. Appeal from the Hamilton
Superior Court
A.S., The Honorable William J. Hughes,
Appellee-Respondent. Judge
Trial Court Cause No.
29D03-1803-PO-1910
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 1 of 5
Case Summary
[1] In May of 2017, then-twenty-eight-year-old V.E. and then-twenty-year-old A.S.
were engaging in sexual intercourse when they were interrupted by V.E.’s
mother. V.E. subsequently sought a protective order against A.S., claiming that
A.S. had committed a sex offense against her and had stalked her. The trial
court issued an Ex Parte Order for Protection (“Ex Parte Order”) and set the
matter for a hearing. Following the hearing, the trial court terminated the Ex
Parte Order and denied V.E.’s request for an order of protection, determining
that V.E. had failed to establish that either a sex offense or stalking had
occurred. V.E. challenges the trial court’s determination regarding the sex
offense on appeal. Because we conclude that the trial court’s determination is
supported by the record, we affirm.
Facts and Procedural History
[2] Prior to the night in question, V.E. and A.S. performed in a jazz band and
attended some social events together. Although V.E. denied being involved in
a romantic relationship with A.S., she expressed interest in such a relationship
on various occasions.
[3] On the evening of May 3, 2017, the jazz band rehearsed and had dinner
together at the home V.E. shared with her mother. After rehearsal, A.S. stayed
and socialized with V.E. At some point, V.E. and A.S. began engaging in
sexual intercourse. They continued to do so until they were interrupted by
Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018 Page 2 of 5
V.E.’s mother. After V.E.’s mother made her presence known, V.E. expressed
her embarrassment before running up the stairs to her bedroom.
[4] The next day, V.E. sent A.S. a series of text messages. At first, V.E. admitted
to initiating sexual contact. V.E.’s texts later became accusatory and suggested
that A.S. had taken advantage of her when she was drunk. Two days after the
incident, V.E. sought medical treatment for an alleged rape.
[5] On March 1, 2018, V.E. filed a petition for a protective order against A.S.,
alleging that she had been the victim of a sex offense committed by A.S. Based
on the statements alleged in V.E.’s petition, the trial court granted an Ex Parte
Order and set the matter for a hearing. V.E.’s testimony during the two-day
hearing differed significantly from that of both her mother and A.S.
Specifically, her testimony regarding her alleged state of drunkenness and hers
and A.S.’s actions leading up to, during, and after intercourse contradicted the
largely consistent testimony presented by her mother and A.S. V.E.’s testimony
also contained contradictions to earlier statements she had given in connection
to the case. On April 30, 2018, the trial court terminated the Ex Parte Order
and denied V.E.’s request for an order of protection, finding that V.E. “has not
shown, by a preponderance of the evidence, that … a sex offense has occurred
sufficient to justify the issuance of an Order for Protection.” Appellant’s App.
Vol. II p. 8.
Discussion and Decision
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[6] V.E. contends that the trial court erred in denying her request for a protective
order against A.S.
Protective orders are similar to injunctions…. We apply a two-
tiered standard of review: we first determine whether the
evidence supports the findings, and then we determine whether
the findings support the order. In deference to the trial court’s
proximity to the issues, we disturb the order only where there is
no evidence supporting the findings or the findings fail to support
the order. We do not reweigh evidence or reassess witness
credibility, and we consider only the evidence favorable to the
trial court’s order. The party appealing the order must establish
that the findings are clearly erroneous. Findings are clearly
erroneous when a review of the record leaves us firmly convinced
that a mistake has been made.
Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct. App. 2015) (citations and quotation
omitted).
[7] In challenging the trial court’s denial of her request for a protective order, V.E.
asserts that the trial court erroneously determined that she failed to prove by a
preponderance of the evidence that a sex offense occurred. While V.E. admits
that she and A.S. engaged in sexual intercourse, she argues that “the
undisputed evidence in this case is that the parties engaged in sexual intercourse
at a time when [V.E.] was very drunk” and “was not legally capable of
consenting to sexual conduct.” Appellant’s Br. p. 7.
[8] It is not undisputed, however, that V.E. was “very drunk.” While the record
indicates that V.E. drank at least some alcohol on the night in question, it
contains contradictory evidence relating to the amount of alcohol consumed
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and V.E.’s resulting level of drunkenness. The trial court, acting as the trier-of-
fact, found that V.E. failed to prove by a preponderance of the evidence that she
was so intoxicated that she could not give consent. V.E.’s claims on appeal
effectively amount to an invitation for this court to reassess her credibility and
reweigh the evidence, which we will not do. Fox, 45 N.E.3d at 798. The
evidence most favorable to the trial court’s order supports its determination that
V.E. failed to prove that a sex offense occurred. We therefore affirm the trial
court’s termination of the Ex Parte Order and denial of V.E.’s request for an
order of protection against A.S.
[9] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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