Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
                                                                  FILED
                                                                Feb 14 2012, 9:31 am
regarded as precedent or cited before any
court except for the purpose of
                                                                       CLERK
establishing the defense of res judicata,                            of the supreme court,
                                                                     court of appeals and
                                                                            tax court
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:

STEPHEN M. TERRELL
Terrell Law Office, LLC
Camby, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RICK CARTER,                                   )
                                               )
       Appellant-Respondent,                   )
                                               )
              vs.                              )        No. 41A01-1107-PO-301
                                               )
KRISTINA ANDERSON,                             )
                                               )
       Appellee-Petitioner.                    )


                APPEAL FROM THE JOHNSON SUPERIOR COURT
                     The Honorable Richard L. Tandy, Judge
                        Cause No. 41D03-1102-PO-132


                                    February 14, 2012

            MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Respondent, Rick Carter (Carter), appeals the trial court’s issuance of a

protective order in favor of Appellee-Petitioner, Kristina Anderson (Anderson).

       We reverse.

                                          ISSUE

       Carter raises four issues on appeal, one of which we find dispositive and restate as:

Whether there was sufficient evidence to support the trial court’s issuance of a protective

order in favor of Anderson.

                        FACTS AND PROCEDURAL HISTORY

       The facts of this case, as best as we can deduce from the sparse record before us,

are as follows: Carter has been patronizing a McDonald’s restaurant next to the pizza

shop that he owns for the past five years. Anderson has worked at that McDonald’s for

the past two years. On January 25, 2011, Anderson came to Carter’s pizza shop, filled

out a job application and told him that she was having a “really hard time at work.”

(Transcript p. 7). Carter told her that even though he would like to give her a job, he

could not because she was only seventeen years old and was not old enough to be a

delivery driver. After that encounter, Carter alleges that there was an “embarrassing”

situation between Anderson and Carter’s fourteen year old son that Carter felt needed to

be addressed. (Tr. p. 8). Accordingly, Carter contacted Anderson by phone and left her

voicemails and text messages.


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       On February 28, 2011, Anderson’s mother filed a petition on Anderson’s behalf,

requesting a protective order and a hearing, and alleging that Carter had called multiple

times and left a voicemail telling Anderson to “call him right now.” (Appellant’s App. p.

11). The petition also alleged that Carter had asked Anderson to quit McDonald’s so that

he could be her “sugar daddy.” (Appellant’s App. p. 12). The trial court entered an ex

parte protective order effective through August 28, 2011, prohibiting Carter from

contacting Anderson or going to her residence, school, or place of employment. On April

19, 2011, Carter filed a verified request for a hearing.

       The trial court held a hearing on May 12, 2011, at which point it determined that

Anderson’s mother was no longer the Petitioner as Anderson had turned eighteen after

the filing of the petition and before the hearing. That same day, the trial court entered an

Order upholding the protective order but modifying it to allow Carter to enter the

McDonald’s where Anderson worked. On June 7, 2011, Carter filed a motion to correct

error and to vacate the protective order, as well as a motion for a hearing on his motion to

correct error.   On June 16, 2011, the trial court denied Carter’s motions without a

hearing.

       Carter now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       Initially, we note that Anderson did not file an appellee’s brief. When the appellee

fails to file a brief, we do not undertake the burden of developing an argument for the

appellee. Tisdial v. Young, 925 N.E.2d 783, 784 (Ind. Ct. App. 2010). Rather, we will

                                              3
reverse the trial court’s judgment if the appellant presents a case of prima facie error.

Id.at 785.     “Prima facie error in this context is defined as, at first sight, on first

appearance, or on the face of it.” Id. (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d

1065, 1068 (Ind. 2006)). Where an appellant does not meet this burden, we will affirm.

Id.

        In reviewing the sufficiency of the evidence to support a protective order, we

neither reweigh the evidence nor judge the credibility of witnesses. Id. We consider only

the probative evidence and the reasonable inferences supporting the trial court’s

judgment. Id.

        In order to issue a protective order against Carter, the trial court was required to

find that there was sufficient evidence that Carter “committed stalking under [I.C. §] 35-

45-10-5.”1 Ind. Code § 34-26-5-2. Pursuant to I.C. § 35-45-10-5, a person commits

stalking if he or she stalks another person. The Indiana Code defines “stalk” 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.” I.C. § 35-45-10-1.


1
  The trial court may issue or modify an order for protection only upon a finding that “domestic or family
violence has occurred.” I.C. §§ 34-26-5-9(a), (f). The definition of “domestic or family violence” for this
purpose also includes stalking as defined in I.C. § 35-45-10-1 or a sex offense, “whether or not the
stalking or sex offense is committed by a family or household member.” I.C. § 34-6-2-34.5. As
Anderson did not allege domestic or family violence or a sex offense, the trial court was only required to
determine that there was sufficient evidence of stalking.

                                                    4
       In the instant case, the trial court held a hearing regarding its ex parte protective

order against Carter on May 12, 2011, but did not determine whether there was a

sufficient factual basis for the protective order. The trial court did not listen to any of

Carter’s witnesses or allow him to enter evidence in his defense. Instead, the trial court

merely asked Anderson whether she wanted a protective order. Afterwards, the trial

court addressed Carter as follows:

       [Carter,] where that puts me is simply this[:] there is obviously a great deal
       of history behind this that I [do not] know about, and frankly, I [cannot] []
       change it even if I did know about it. But, I do believe that people are
       entitled to say who they deal with and who they [do not] deal with and
       rather than make this into a federal issue, I’m going to ask you is there any
       particular reason why you should be in contact with the lady in light of the
       fact that I’ve now heard her say that she apparently does not want the
       contact[?] Again, there’s a lot of history there that I [do not] know about,
       but I’m trying to keep it simple, and if I keep it simple, then unless there’s
       some reason for you to be in contact with the lady then I tell people like
       you heard me tell the people in front of you. Alright, I start off with six
       months to see if that gets the job done . . . . What I’m saying is, I’m not
       trying to make it into a federal issue, and I’m not trying to go back, like you
       heard me tell the people in front of you, go back to what happened three
       weeks ago, and two weeks ago, and one week ago, because I [cannot]
       change it . . . .

(Tr. pp. 5-6). Based on this passage and the transcript of the proceedings as a whole, we

conclude that the trial court completely misunderstood the requirements for a protective

order. At a minimum, a trial court must establish that there is a sufficient factual basis

for the protective order, which the trial court here clearly failed to do. In fact, the trial

court explicitly stated that it did not want to hear “what happened three weeks ago, and

two weeks ago, and one week ago.” (Tr. p. 6).


                                             5
       We cannot conclude that there was sufficient evidence based on the record.

Anderson did not supply any evidence of the nature of Carter’s alleged texts or

voicemails, and did not indicate that she felt “terrorized, frightened, intimidated, or

threatened” by Carter’s actions. See I.C. § 35-45-10-1. As a result, we determine that

there was not sufficient evidence to support the trial court’s protective order.

                                      CONCLUSION

       Based on the foregoing, we conclude that there was not sufficient evidence to

support the trial court’s protective order against Carter.

       Reversed.

FRIEDLANDER, J. and MATHIAS, J. concur




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