FILED
Jan 29 2019, 8:44 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT
Brent R. Dechert
Kokomo, Indiana
IN THE
COURT OF APPEALS OF INDIANA
C.S., January 29, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-PO-1566
v. Appeal from the Howard Superior
Court
T.K., The Honorable William C.
Appellee-Plaintiff, Menges, Jr., Judge
Trial Court Cause No.
34D01-1804-PO-45
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 1 of 11
Case Summary and Issue
[1] T.K. was granted an ex parte order for protection from C.S. After C.S. filed a
motion to dismiss, the trial court conducted a hearing and again granted T.K.’s
request for an order for protection. C.S. now appeals the order for protection
raising a single issue for our review, whether there was sufficient evidence to
support the issuance of the protective order. Concluding there was insufficient
evidence to support the issuance of the protective order, we reverse.
Facts and Procedural History
[2] C.S. owns a towing and mobile automobile repair business in Kokomo and
T.K. is an officer with the Kokomo Police Department. C.S. has a pending
criminal case against him for “intimidation, stalking and harassment” in which
T.K. is the alleged victim.1 Transcript of Evidence, Volume II at 4.
[3] On April 20, 2018, T.K. filed a petition for an order for protection against C.S.,
alleging that she had been a victim of stalking. In her petition, T.K.
enumerated three incidents in which she encountered C.S. The first of these
incidents occurred within the previous three to four months when T.K. was
having lunch with her mother at a Panera Bread restaurant. T.K. stated that
1
Notably, none of the events underlying the pending criminal charges against C.S. were included in T.K.’s
petition for an order for protection against C.S. or presented as evidence at the hearing on June 12, 2018.
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 2 of 11
C.S. “entered the restaurant. [C.S.] is familiar [with] my patrol car that was
parked in the parking lot.” Appendix of Appellant, Volume 2 at 6.
[4] The second incident occurred on April 13, 2018, in the parking lot of a U-Haul
rental location. T.K. stated that she was leaving a nearby store and “observed
[C.S.] on top of a U-Haul truck . . . using his cell phone to video tape [sic]
[her].” Id.
[5] The third and final incident occurred on April 20, 2018, the date T.K. filed her
petition. T.K. stated that she:
[W]ent in the post office to mail a [package] [at] 11:35 am, as I
exited the post office, [C.S.] walked right up behind me and
followed me out of the [post office]. [C.S.] was not in the
parking lot when I pulled in but he is very familiar [with] my
vehicle.
Id. On the basis of this petition, the trial court granted T.K.’s petition for an
order for protection ex parte the same day.
[6] C.S. filed a motion to dismiss the order for protection on May 10, 2018, and the
parties appeared for a contested hearing on June 12. There, T.K. testified that it
“[j]ust seems like this is a repetitive behavior for someone that’s out on bond for
stalking, intimidation and harassment. Seems like it is continuing and it’s
becoming more frequent.” Tr., Vol. II at 4. The trial court concluded that,
If we were to look at the individual acts that have been testified
to in the context of a criminal stalking case, I would have to find
that [T.K.] has not proved beyond a reasonable doubt that [C.S.]
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 3 of 11
has committed stalking against her. However, the burden is
preponderance of the evidence and what one thing that I’ve
learned over the years is I don’t like coincidences and I’m, to
start throwing coincidences together, then it starts increasing the
weight to be given to them and here we have three coincidences
as established by, at least is claimed, by [C.S.]. I think we have
gotten over the preponderance of the evidence burden and I think
what we have to look at, also, is that if in fact [C.S.] wants to
have no more to do with [T.K.] than she wants him to have with
her, then a protective order is no harm/no foul, particularly if
he’s willing to have a no-contact order issued. The only
difference between a no-contact order in a criminal case, is that
that one is issued, dismissed or modified solely in the discretion
of the Judge as opposed to at the request of the petitioner.
***
And if the evidence were to be, you know, you’re throwing out,
okay, he’s in Panera Bread which he has a right to be, he walks
into Panera Bread, sees her, the best thing you can do is turn
around and leave. If he does that, that will not support an
invasion of privacy charge because it requires the intentional
violation of the order. So I’m going to find that [T.K.] has
(inaudible) by a preponderance of the evidence, that stalking has
occurred sufficient to justify the issuance of a protective order, . .
. that [C.S.]represents a critical threat to the safety of [T.K.], and
that the following relief is necessary.
Id. at 30-31. C.S. now appeals.
Discussion and Decision
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 4 of 11
I. Standard of Review
[7] Protective orders are similar to injunctions, and therefore in
granting an order the trial court must sua sponte make special
findings of fact and conclusions thereon. Hanauer v. Hanauer, 981
N.E.2d 147, 148 (Ind. Ct. App. 2013) (citing, inter alia, Ind. Trial
Rule 52(A) and Ind. Code § 34-26-5-9(a), -(f)). 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. Id. at 149. 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. Koch Dev. Corp. v. Koch, 996 N.E.2d
358, 369 (Ind. Ct. App. 2013), trans. denied (2014). We do not
reweigh evidence or reassess witness credibility, and we consider
only the evidence favorable to the trial court’s order. Id. The
party appealing the order must establish that the findings are
clearly erroneous. Id. “Findings are clearly erroneous when a
review of the record leaves us firmly convinced that a mistake has
been made. We do not defer to conclusions of law, however, and
evaluate them de novo.” Mysliwy v. Mysliwy, 953 N.E.2d 1072,
1076 (Ind. Ct. App. 2011) (citation omitted), trans. denied.
Fox v. Bonam, 45 N.E.3d 794, 798-99 (Ind. Ct. App. 2015).
[8] Before proceeding to the merits of this appeal, we note that T.K. did not file an
appellee’s brief. When an appellee does not submit a brief, we do not
undertake the burden of developing arguments for that party. Spencer v. Spencer,
990 N.E.2d 496, 497 (Ind. Ct. App. 2013). Instead, we apply a less stringent
standard of review and may reverse if the appellant establishes prima facie
error, namely “error at first sight, on first appearance or on the face of it.” Id.
(quoting Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006)).
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 5 of 11
II. Order for Protection
[9] The Indiana Civil Protection Order Act was enacted to promote the “protection
and safety of all victims of domestic or family violence in a fair, prompt, and
effective manner” and to prevent “future domestic and family violence.” Ind.
Code § 34-26-5-1. Domestic violence includes 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.” Ind. Code §
35-45-10-1; Ind. Code § 34-6-2-34.5 (explaining “[f]or purposes of IC 34-26-5,
domestic and family violence also includes stalking . . . whether or not the
stalking . . . is committed by a family or household member.”). However,
stalking “does not include statutorily or constitutionally protected activity.”
Ind. Code § 35-45-10-1.
[10] Harassment is defined as “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.” Ind. Code § 35-45-10-2. Impermissible
contact “includes but is not limited to knowingly or intentionally following or
pursuing the victim.” Ind. Code § 35-45-10-3. And, as with stalking,
“[h]arassment does not include statutorily or constitutionally protected
activity[.]” Ind. Code § 35-45-10-2.
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 6 of 11
[11] A person who has been a victim of stalking may file a petition for a protective
order. Ind. Code § 34-26-5-2(a).
A finding that domestic or family violence has occurred sufficient
to justify the issuance of an order . . . means that a respondent
represents a credible threat to the safety of a petitioner or a
member of a petitioner’s household. Upon a showing of
domestic or family violence 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.
Ind. Code § 34-26-5-9(f). We have also noted the “significant ramifications of
an improperly granted protective order[,]” which can pose “a considerable
threat to the respondent’s liberty.” Barger v. Barger, 887 N.E.2d 990, 993-94
(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.’” Id. at 993 (quoting Ind. Code § 34-26-5-3).
[12] Here, the trial court concluded that C.S. committed stalking against T.K., not
based on any single allegation, but rather three separate allegations that it found
to be true. C.S. argues that all of their encounters appear to have been by
“chance” or “coincidence” and that “[e]ach time T.K. saw C.S. it was in a
public setting where both parties had a legitimate reason to be present.” Brief of
Appellant at 9. We therefore address each allegation in turn.
[13] The first allegation occurred at a Panera Bread restaurant three to four months
before T.K. filed her petition. T.K. testified that she was eating lunch with her
mother when she saw C.S. enter the restaurant with another person and order
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 7 of 11
food to go. T.K. affirmed that C.S. did not approach her or say anything to her
and simply left the restaurant after receiving his order. Tr., Vol. II at 6. Aside
from the fact that C.S. was familiar with T.K.’s patrol car that was parked in the
parking lot, see App. of Appellant at 6, T.K. did not present any evidence that
C.S. “knowingly or intentionally follow[ed] or pursu[ed]” her into the
restaurant, Ind. Code § 35-45-10-3. Because the definition of stalking excludes
“statutorily or constitutionally protected activity[,]” Ind. Code § 35-45-10-1,
and C.S. had the right to be in a public place, see, e.g., Kent v. Dulles, 357 U.S.
116, 125 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen
cannot be deprived without due process of law under the Fifth Amendment.”),
we conclude this allegation cannot support a finding of harassment.
[14] The second allegation occurred in the parking lot of a U-Haul rental location.
T.K. stated that she “observed [C.S.] on top of a U-Haul truck . . . using his cell
phone to video tape [her].” App. of Appellant, Vol. 2 at 6. At the hearing, C.S.
testified that he occasionally does work for U-Haul and that he had received a
text from the U-Haul regional manager on Thursday, April 12 at 11:24 pm that
a U-Haul truck needed repairs. Tr., Vol. II at 17; Exhibits Volume at 13. The
incident occurred the next day, Friday, April 13, when T.K. was leaving a
nearby store. C.S. testified that he had climbed on top of a U-Haul truck to
take pictures of damage and he produced copies of four pictures, including a
text receipt of a picture showing damage that he had sent the regional manager
at 10:26 am. Exhibits Volume at 5-8, 13. T.K. stated that she left a store at
10:16 am and was driving through the parking lot when she saw “a pair of pants
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 8 of 11
with yellow across the bottom of them and I look up and there’s [C.S.] on top
of the U-Haul van” videotaping her. Tr., Vol. II at 24.
[15] Once again, T.K. affirmed that C.S. did not approach her or say anything to
her. Rather, it was T.K. who stopped her vehicle near C.S., as she explained:
I did stop. I wanted him to know that I see you once again
videotaping me. You know, I’m not invisible. That’s all I say to
him, I drive away . . . .
Id. at 25. C.S. testified that when T.K. approached him:
I was actually climbing down. I’d already taken my four
photographs, which you entered [into evidence]. I’d already
taken the four photographs of the damage of the truck to send to
the manager of U-Haul and I was actually on my way climbing
down, paying more attention to climbing down. I actually was in
shock that she rolled up and stopped approximately ten foot [sic]
from me and waved and said hi. I was actually kind of in shock
because my main focus, I didn’t have a ladder, to climb up on
this truck. My main focus was getting down without falling.
Id. at 19.
[16] Even taking the evidence most favorable to the trial court’s order, as we must,
see Fox, 45 N.E.3d at 798, and accepting as fact that C.S. was videotaping T.K.
from the top of the U-Haul, we still cannot conclude this allegation constituted
harassment. Under certain circumstances, the act of videotaping a police
officer in public may well be a “constitutionally protected activity[,]” Ind. Code
§ 35-45-10-2, which is excluded from the definition of harassment, see ACLU of
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 9 of 11
Illinois v. Alvarez, 679 F.3d 583, 595-96 (7th Cir. 2012) (holding Illinois’
wiretapping statute criminalizing the audio and video recording of police
officers violated the clearly established constitutional right to record a police
officer). But, in any event, there is no evidence that C.S. “knowingly or
intentionally follow[ed] or pursu[ed]” T.K. into the U-Haul parking lot. Ind.
Code § 35-45-10-3. To the contrary, the evidence reveals that C.S.’s presence
was requested by U-Haul, that C.S. was on top of the U-Haul truck to take
pictures of damage, and that T.K. approached C.S., not the other way around.
Under these circumstances, we cannot conclude this allegation supported a
finding of harassment.
[17] The third and final allegation occurred at the post office on April 20, 2018.
T.K. testified that C.S. was not in the post office when she entered but that as
she exited, C.S. “rushed up behind me in an aggressive fashion.” Tr., Vol. II at
4. Again, the only evidence that C.S. may have known T.K. was present in the
post office was C.S.’s purported familiarity with T.K.’s police car. But despite
that, and evidence that C.S. has had a post office box at that location for over
ten years, Exhibits Volume at 10-11, we conclude that T.K.’s testimony that
C.S. “rushed up behind [her] in an aggressive fashion[,]” Tr., Vol. II at 4, is, for
purposes of our standard of review, evidence of impermissible contact. See Ind.
Code § 35-45-10-3 (impermissible contact “includes but is not limited to
knowingly or intentionally following or pursuing the victim”).
[18] Thus, our review of the record reveals there was sufficient evidence to establish
harassment on only one of the three occasions alleged in T.K.’s petition. As
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 10 of 11
noted above, “stalking” 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.” Ind. Code § 35-45-10-1 (emphasis added).
Although we accept T.K.’s testimony that she was “afraid[,]” tr., vol. II at 5, a
single incident of harassment is insufficient to support a finding of stalking. See
Johnson v. State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999) (concluding “the
term ‘repeated’ in Indiana’s anti-stalking law means ‘more than once’”), trans.
denied. We therefore conclude C.S. has demonstrated prima facie error and the
evidence was insufficient to support a finding of stalking and the issuance of an
order for protection.
Conclusion
[19] Concluding there was insufficient evidence presented at the hearing to support
the trial court’s issuance of a protective order, we reverse.
[20] Reversed.
Riley, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 11 of 11