      MEMORANDUM DECISION
                                                                                        FILED
      Pursuant to Ind. Appellate Rule 65(D),
                                                                                  Oct 23 2018, 8:15 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                                         CLERK
                                                                                   Indiana Supreme Court
      court except for the purpose of establishing                                    Court of Appeals
                                                                                        and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Kimberly S. Lytle                                        Elizabeth M. Smith
      Banks & Brower LLC                                       Poynter & Bucheri, LLC
      Indianapolis, Indiana                                    Mooresville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      S.H.,                                                    October 23, 2018
      Appellant-Respondent,                                    Court of Appeals Case No.
                                                               18A-PO-526
              v.                                               Appeal from the Marion Circuit
                                                               Court
      M.A.,                                                    The Honorable Sheryl Lynch,
      Appellee-Petitioner                                      Judge
                                                               Trial Court Cause No.
                                                               49C01-1712-PO-47187



      Vaidik, Chief Judge.



                                          Case Summary
[1]   M.A. sought a protective order against S.H. (the mother of his daughter),

      alleging that she sent him 165 text messages during a twenty-four-hour period
      Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018                      Page 1 of 7
      and that this constituted stalking. The trial court issued a protective order, and

      S.H. now appeals, arguing that the evidence does not prove that she committed

      stalking. We agree that the evidence is not sufficient and therefore reverse the

      trial court’s issuance of the protective order.



                              Facts and Procedural History
[2]   M.A. and S.H. were previously involved in an intimate relationship and have a

      daughter together, G.A. After several years of no contact, M.A. and S.H.

      started talking again around September 2017. On December 27, 2017, M.A.

      filed a petition for an order of protection, alleging that S.H. committed stalking

      against him. M.A. claimed that S.H. sent him “165 text messages” on

      December 3, 2017, that expressed anger at his decision to have another child

      and at his performance as G.A.’s father.1 Appellant’s App. Vol. II p. 7.


[3]   A hearing was held on February 2, 2018. M.A. was represented by counsel,

      and S.H. represented herself. In support of his claim that S.H. committed




      1
        M.A. also alleged that S.H. sent him several text messages on September 8, 2017, and that she falsely
      reported to DCS that he had harmed his girlfriend’s child. Appellant’s App. Vol. II p. 7. On appeal,
      however, M.A. does not rely on any text messages from September 8 in arguing that the evidence is sufficient
      to prove that S.H. committed stalking. Therefore, we do not address them. As for M.A.’s claim that S.H.
      made a false report to DCS, S.H. testified at the hearing that she did not make a false report to DCS, to
      which the trial court responded:
            Well, I can tell [you] right now, people have the right to do anything that is legitimate and to
            further the law. Making DCS reports is legitimate until and unless it becomes abusive and then
            it is not legitimate or for a legitimate purpose. It is then considered, after a certain point,
            harassment. I do not think we are having that discussion today.
      Tr. p. 59. Because the trial court did not rely on the DCS report in finding that M.A. proved that S.H.
      committed stalking, we do not address it.

      Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018                    Page 2 of 7
      stalking, M.A. testified that S.H. sent him 165 text messages on December 3,

      2017. Tr. pp. 23, 67. M.A. did not offer into evidence all 165 text messages

      from S.H. Rather, M.A. offered into evidence approximately five text messages

      that S.H. sent M.A. over the course of three hours on December 3 (Exhibit A).

      Here are three of those text messages:


              Also it’s not my problem or [G.A.’s] problem that your in the
              situation your in. Instead of focusing on yourself and focusing
              on getting back in your daughters life after you were out of your
              other relationship what do you do? You find someone else and
              knock her up when you don’t see your own daughter.


              Instead you want to blame everyone else for being in the
              situation your in. You had fu**ing rights to [G.A.] this whole
              time she wasn’t taken away from you and I never once denied
              any sort of visitation with her and you know that.


              And you know what [M.A.] your words and manipulations
              mean nothing to me now because you know dam* good and well
              you should [have] wondered about [G.A.’s] Halloween and if she
              had a good thanksgiving. Your just trying to turn it around and
              manipulate me I see all of it so clearly now because it’s always
              been about [M.A.] and you know what? It still is.


      Ex. A. The trial court admitted Exhibit A.


[4]   S.H. testified and admitted sending M.A. numerous text messages on

      December 3 (she did not think that there were 165 though because she had to

      break them up into smaller messages so that M.A. could read them on his

      phone); however, she said the text messages in Exhibit A were part of a larger

      conversation between the two of them and that Exhibit A did not show that.
      Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018   Page 3 of 7
      Tr. pp. 11, 22, 58. In support, S.H. offered into evidence Exhibit 2, which is the

      entire forty-six-page conversation between her and M.A. that started on

      December 3 and ended on December 4. M.A. objected to Exhibit 2 on grounds

      that S.H. had made some notations in the margins and therefore the copy was

      not “pristine.” Id. at 54. The trial court sustained M.A.’s objection but said

      that S.H. could submit a clean copy. S.H. then asked the court if she could

      remove the notations by ripping off the margins, which would only take “two

      seconds,” but the court said there was no “time for [her] to do that this

      afternoon” because they were “going to wrap up within the next few

      minutes[.]” Id. at 54-55.


[5]   The trial court later issued an order of protection pursuant to Indiana Code

      chapter 34-26-5, finding that M.A. had shown, by a preponderance of the

      evidence, that “stalking has occurred sufficient to justify the issuance of this

      Order.” Appellant’s App. Vol. II p. 61. The order expires February 7, 2020.


[6]   S.H. now appeals.



                                 Discussion and Decision
[7]   S.H. raises two issues on appeal, one of which we find dispositive. That is,

      S.H. contends that M.A. did not present sufficient evidence to support the trial

      court’s issuance of the protective order.


[8]   We begin by noting that there are “significant ramifications of an improperly

      granted protective order.” C.V. v. C.R., 64 N.E.3d 850, 853 (Ind. Ct. App.

      Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018   Page 4 of 7
       2016) (quotation omitted). “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. (quoting Ind. Code § 34-26-5-3). Thus, an improperly granted

       protective order may pose a considerable threat to the respondent’s liberty. Id.


[9]    Indiana Code section 34-26-5-2(a)(2) provides, “A person who is or has been a

       victim of domestic or family violence[2] may file a petition for an order of

       protection against a . . . person who has committed stalking under IC 35-45-10-

       5.” “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. “Harassment,” in turn, 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.


[10]   In response to S.H.’s argument, M.A. argues that the text messages in Exhibit

       A are sufficient to prove that S.H. committed stalking because they

       “demonstrate[] harassing behavior and express[] anger with” him. Appellee’s




       2
         Indiana Code 34-6-2-34.5 provides, “For purposes of IC 34-26-5, domestic and family violence . . . 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.”



       Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018                   Page 5 of 7
       Br. p. 10. Exhibit A contains approximately five text messages that S.H. sent

       M.A. during a three-hour period on one night, December 3. Although S.H. is

       undoubtedly emotional in the text messages, the five messages, by themselves,

       do not establish “repeated or continuing impermissible contact” with M.A.

       Rather, they reflect that S.H. was angry with M.A. about his parenting (or lack

       thereof).


[11]   M.A. next argues that the evidence is sufficient because S.H. sent him a total of

       165 text messages on December 3. M.A., however, does not tell us what these

       messages say or whether they were part of a larger conversation between M.A.

       and S.H. For her part, S.H. testified that the text messages in Exhibit A were

       part of a larger conversation between them. M.A. did not dispute that below,

       nor does he dispute that on appeal. As stated above, when S.H. tried to admit

       the entire forty-six-page conversation as Exhibit 2, M.A. objected on grounds

       that the copy was not “pristine.”3 But had Exhibit 2 been admitted, it would

       have been clear that the messages in Exhibit A were part of a much larger

       conversation between M.A. and S.H. As this Court has stated before, “mutual

       communication between two parties [does not qualify] as harassment within the

       meaning of the stalking statute.” Maurer v. Cobb-Maurer, 994 N.E.2d 753, 759

       (Ind. Ct. App. 2013). Because M.A. objected to Exhibit 2 and the trial court

       excluded it, he cannot then rely on the messages contained within Exhibit 2 to




       3
        M.A., however, did not object to other exhibits from S.H. that also had notations in the margins. See Exs.
       1, 3, & 5.

       Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018                  Page 6 of 7
       argue that the evidence is sufficient to prove that S.H. committed stalking.

       Accordingly, we find that the evidence is not sufficient to support the trial

       court’s issuance of the protective order based on stalking. We therefore reverse

       the trial court and remand with instructions for the court to vacate the

       protective order.


[12]   Reversed and remanded.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PO-526 | October 23, 2018   Page 7 of 7
