MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Mar 29 2017, 10:23 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT
John A. Henry
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

M.S.,                                                   March 29, 2017
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        29A05-1609-PO-2131
        v.                                              Appeal from the Hamilton
                                                        Superior Court
C.B.,                                                   The Honorable Gail Z. Bardach,
Appellee-Petitioner                                     Judge
                                                        Trial Court Cause No.
                                                        29D06-1607-PO-6308



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017     Page 1 of 6
                                          Case Summary
[1]   This is an appeal from the issuance of a protective order that, among other

      things, prohibits the respondent from possessing firearms during the two-year

      term of the order. Indiana’s Civil Protection Order Act provides that a trial

      court issuing a protective order “may” include a firearm prohibition, but the

      trial court that issued the order in this case made comments suggesting that it

      included the prohibition because it mistakenly believed that it was required to

      do so. Therefore, while we affirm the trial court’s decision to issue a protective

      order, we reverse the imposition of the firearm prohibition and remand this

      matter for clarification regarding that provision.



                            Facts and Procedural History
[2]   In July 2016, C.B. filed a petition seeking a protective order against her ex-

      boyfriend, M.S., alleging that he had engaged in acts of “domestic or family

      violence.” The trial court issued an ex parte order and then, following a request

      by M.S., set the matter for a hearing. At the hearing, C.B. testified about

      several things that had happened during her relationship with M.S., including a

      conversation about whether M.S. would move out of their house. During the

      conversation, C.B. was sitting at a table, and M.S. “threw a chair” toward the

      table, coming “[w]ithin a few inches” of hitting C.B. Tr. pp. 20-21. C.B.

      acknowledged that the chair did not actually hit her but testified that M.S.

      exhibited “enough anger and violence to scare me.” Id. at 22. Based on this

      act, the trial court found that the order “has a legal basis” and “will remain in

      Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 2 of 6
      effect as it was originally issued.” Id. at 33.1 The court continued, “And

      because [C.B.] and [M.S] resided together in an intimate relationship, I have to

      add to the order for protection a firearms prohibition.” Id. Accordingly, the

      written order that took the place of the ex parte order includes a provision

      prohibiting M.S. “from using or possessing a firearm, ammunition, or deadly

      weapon” during the two-year term of the order (“firearm prohibition”).

      Appellant’s App. Vol. II p. 8.

[3]   M.S. now appeals.



                                   Discussion and Decision
[4]   M.S. contends that the trial court should not have issued the protective order

      and that, in the alternative, it should not have included the firearm prohibition

      in the order. Because C.B. has not filed an appellee’s brief, M.S. need only

      demonstrate prima facie error, that is, error “at first sight, on first appearance,

      or on the face of it.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind.

      2006).




      1
        C.B. also testified that M.S. choked her during sex, and the trial court found that to be an additional act of
      violence justifying issuance of the protective order. M.S. disputes that finding, arguing that C.B. consented to
      the choking. Because we affirm the trial court’s finding regarding the throwing of the chair, and because one
      act of domestic or family violence is sufficient to justify a protective order, we need not address the choking
      issue.

      Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017                Page 3 of 6
                              I. Issuance of Protective Order
[5]   M.S. first argues that the trial court erred by issuing the protective order. We

      disagree. Indiana’s Civil Protection Order Act allows the issuance of a

      protective order when there has been “domestic or family violence,” Ind. Code

      § 34-26-5-9(a), which includes “[p]lacing a family or household member in fear

      of physical harm,” Ind. Code § 34-6-2-34.5. Here, C.B. testified that she was

      sitting at a table talking to M.S. about whether he would move out of their

      house, that M.S. threw a chair toward the table, that the chair came within a

      few inches of hitting her, and that she was scared as a result. This testimony

      was easily sufficient to justify the issuance of the protective order.


                         II. Inclusion of Firearm Prohibition
[6]   M.S. argues that even if we affirm the issuance of the protective order, we

      should reverse the trial court’s inclusion of the firearm prohibition in the order.

      He takes issue with the trial court’s conclusion that “because [C.B.] and [M.S.]

      resided together in an intimate relationship, I have to add to the order for

      protection a firearms prohibition.” Tr. p. 33 (emphasis added). M.S. asserts

      that this language indicates that the trial court was operating under the

      impression that it was required to impose the firearm prohibition because M.S.

      and C.B. had been in an intimate relationship and that this belief was mistaken.

      We agree.


[7]   Presumably, the trial court based its conclusion on 18 U.S.C. § 922(g)(8),

      which, generally stated, provides that “[i]t shall be unlawful for any person”

      Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 4 of 6
      who is subject to an order protecting a current or former “intimate partner” to

      possess any firearm or ammunition. However, the fact that this federal criminal

      statute prohibits firearm possession by an individual like M.S. does not mean

      that a state trial court issuing a protective order is required to include the same

      prohibition in the order. Indeed, Indiana’s protective-order statute simply says

      that a trial court issuing such an order “may . . . [p]rohibit a respondent from

      using or possessing a firearm, ammunition, or a deadly weapon[.]” Ind. Code §

      34-26-5-9(c)(4) (emphasis added); see also id. at (f). Because there is no clear

      indication in the record before us that the trial court would have included the

      firearm prohibition in the protective order but for its apparent belief that it was

      required to do so, we must reverse the imposition of the prohibition and

      remand this matter for reconsideration in light of the particular facts of this

      case.

[8]   We recognize, especially in light of the federal statute, that chances are good

      that the trial court will leave the firearm prohibition intact on remand. Also, we

      assume that M.S. will abide by the federal statute and refrain from possessing

      firearms regardless of what the trial court does. At the same time, however, if

      the trial court were to omit the prohibition from the protective order, M.S.

      would be exposed to only federal criminal prosecution in the event that he

      chooses to possess a firearm, and not to additional state prosecution for

      violating the protective order (see Ind. Code § 35-46-1-15.1, invasion of privacy).

      Given this prospect, clarification of the issue by the trial court, in accordance

      with the discretionary nature of Section 34-26-5-9(c)(4), is appropriate.


      Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 5 of 6
[9]   Affirmed in part, reversed in part, and remanded.

      Bradford, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 6 of 6
