MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be                         Mar 28 2018, 6:13 am
regarded as precedent or cited before any                          CLERK
court except for the purpose of establishing                   Indiana Supreme Court
                                                                  Court of Appeals
the defense of res judicata, collateral                             and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
William W. Gooden
Mt. Vernon, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

D.S.,                                                    March 28, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         65A01-1709-PO-2086
        v.                                               Appeal from the Posey Superior
                                                         Court
R.S.,                                                    The Honorable S. Brent Almon,
Appellee-Petitioner                                      Judge
                                                         Trial Court Cause No.
                                                         65D01-1704-PO-70



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 1 of 10
[1]   D.S. (“Respondent”) appeals the trial court’s issuance of a protective order

      against her at the request of R.S. (“Petitioner”). Respondent argues Petitioner

      did not present sufficient evidence to prove Respondent committed an act for

      which a protective order can be issued. We affirm.



                            Facts and Procedural History
[2]   Respondent is Petitioner’s daughter-in-law, and Petitioner adopted her

      grandson, Respondent’s child with Petitioner’s son. On April 8, 2017,

      Respondent left Petitioner a voicemail, stating:


              Hey [Petitioner,] it’s [Respondent], uhm I was just calling to chat
              with you and see what you did and how this went down, uhm,
              because I never got anything in the mail and I’m not just saying
              that and it’s not like I just wanted to lose my kid all the way,
              uhm, and about your move to Evansville without you even
              telling me about that and just everything you all have done has
              been extremely dirty. Now, granted letting me know that [J.S.] is
              locked up in jail on attempted rape charges and stuff and I’d hate
              to file charges on him for when he did the same shit to me. I’d
              hate to reopen his case and see the motherfucker go for rape and
              all of his charges not be attempted. Now with that being said, I’d
              hate to get mad over all of this and hate to see what happens to
              your family now, so, please give me a call back. This is not a
              threat, this is a promise.


      (Tr. Vol. II at 21) (errors in original).


[3]   On April 10, 2017, Petitioner filed a petition for a protective order against

      Respondent. The trial court granted an ex parte protection order the same day,

      and it scheduled a hearing on the matter for April 19, 2017. Respondent
      Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 2 of 10
      appeared on April 19, 2017, and requested counsel. The trial court granted

      Respondent’s request and rescheduled the hearing for July 10, 2017. The July

      10, 2017, hearing was rescheduled for August 7, 2017.


[4]   At the August 7 hearing, Petitioner testified Respondent contacted her on

      September 7, 2016; November 17, 2016; March 8, 2017; and April 8, 2017.

      Petitioner also presented testimony from her daughter, who told the court she

      had observed Respondent acting violent toward Petitioner and had heard some

      of the phone calls. Regarding the April 8 voicemail, Respondent testified:


              Uhm, as far as the threatening part, you know it wasn’t a threat
              and like I said, it was a promise. Uhm, because it’s like what
              goes around comes around and I didn’t mean anything like I’m
              going to do anything physically or anything. I’m hours away, I
              mean, I don’t want to be coming up here for this. I want to come
              up here to see my son.


      (Id. at 32) (errors in original). On August 7, the trial court reaffirmed its ex parte

      protective order and set an expiration date for the order of April 19, 2019.



                                Discussion and Decision
[5]   Petitioner 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.

      Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we

      apply a less stringent standard of review and may reverse if the appellant

      establishes prima facie error. Id. Prima facie error is “error at first sight, on first



      Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 3 of 10
      appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216,

      221 (Ind. Ct. App. 2006).


[6]   Respondent argues the evidence was insufficient to grant Petitioner’s request for

      a protective order. When reviewing sufficiency of evidence to support a

      protective order, we neither reweigh the evidence nor judge the credibility of

      witnesses. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). We

      consider only the probative evidence and reasonable inferences therefrom

      supporting the trial court’s judgment. Id.


[7]   The legislature established the criteria by which a trial court may grant a

      protective order:


              A person who is or has been a victim of domestic or family
              violence may file a petition for an order for protection against a:


              (1) family or household member who commits an act of domestic
              or family violence; or


              (2) person who has committed stalking under IC 35-45-10-5 or a
              sex offense under IC 35-42-4 against the petitioner.


      Ind. Code § 34-26-5-2(a). A person who requests a protective order must prove

      one of the elements of Indiana Code section 34-26-5-2(a) by a preponderance of

      the evidence. Essany v. Bower, 790 N.E.2d 148, 154-55 (Ind. Ct. App. 2003).


[8]   After the hearing, the trial court ordered “[Respondent] is hereby enjoined from

      threatening to commit or committing acts of domestic or family violence or


      Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 4 of 10
       stalking against [Petitioner] . . . .” (App. Vol. II at 16.) Respondent argues

       Petitioner did not prove Respondent stalked her, Petitioner did not prove she

       felt threatened by Respondent’s calls, and there was no evidence Petitioner and

       Respondent had a familial relationship. We will address each argument

       individually.


[9]    We deal first with whether there was evidence Respondent stalked Petitioner.

       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. “[T]he term ‘repeated’ in Indiana’s anti-

       stalking law means ‘more than once.’” Johnson v. State, 721 N.E.2d 327, 332-3

       (Ind. Ct. App. 1999), trans. denied.


[10]   At the end of the August 7 hearing, the trial court found:


               Alright, evidence closed. Court has heard the arguments. Uhm,
               notice of pleading in the State of Indiana, and these are forms,
               uhm, a threat of violence is sufficient for proof of family violence
               and the Court notes that the form doesn’t have a box to check for
               a threat of violence. Uhm, so, Court believes that she could
               move to amend and that would be granted and the Court doesn’t
               believe that it does any [sic] violence either on a basis of a single
               incident in this case because of the family relationship and the
               threat. Court believes that that qualifies. Court also believes that
               as the matter was litigated there were multiple events that were
               testified to that are credible and the Court does find that stalking
               has occurred as well as one (1) specific event, that there is a


       Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 5 of 10
               family relationship, qualifies for domestic violence or a threat of
               violence and that stalking has occurred.


       (Tr. Vol. II at 40-1.)


[11]   Respondent argues Petitioner presented evidence of only the call on April 8,

       2017, and any other incident Petitioner described was “vague, undetailed, and

       undated.” (Br. of Appellant at 6.) However, Respondent ignores Petitioner’s

       other testimony that Respondent called her March 8, 2017, stating that

       “[Respondent] was going to send a package and there were vulgar things in that

       voicemail also and threatening to take me to court for visitation[.]” (Tr. Vol. II

       at 13.) Petitioner also testified Respondent left Petitioner a threatening

       voicemail on September 7, 2016, and sent Petitioner a text message on

       November 17, 2016, indicating Respondent was at Petitioner’s house, where

       she had been ordered not to be “because of past threats of violence and

       attempted violence towards [Petitioner].” (Id.) Because Petitioner testified to

       multiple incidents of threats made against her by Respondent, Respondent’s

       argument is an invitation to reweigh the evidence, which we cannot do. See

       Tisdial, 925 N.E.2d at 785 (appellate court does not reweigh evidence or judge

       the credibility of witnesses). See also Johnson, 721 N.E.2d at 332-3 (more than

       one incident of stalking is sufficient to prove the behavior was “repeated”).


[12]   Respondent next argues Petitioner did not present sufficient evidence she was

       “terrorized, frightened, intimidated, or threatened,” Indiana Code section 35-

       45-10-1, as required by statute. Petitioner testified she had previously asked the

       court handling the termination of Respondent’s parental rights and the adoption
       Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 6 of 10
       of Respondent’s son by Petitioner to “not allow [Respondent] to come to our

       home for visitation because of past threats of violence and attempted violence

       towards me[.]” (Tr. Vol. II at 13.) Petitioner also testified she called the police

       multiple times when Respondent would indicate she was coming to Petitioner’s

       home uninvited. In addition, Petitioner testified she was “concerned about

       [Respondent] showing up unannounced,” (id. at 14), and “[Respondent] also

       has had many Facebook posts in the past about owning firearms and such and

       that has given me concern too[.]” (Id.) Finally, when introducing a voicemail

       from September 7, 2016, Petitioner stated, “I’m just establishing that I did have

       fear of things like this happening.” (Id. at 35.) Based on Petitioner’s testimony

       regarding her fear and concern about Respondent’s behavior, we conclude

       Respondent’s argument is an invitation to reweigh the evidence, which we

       cannot do. See Tisdial, 925 N.E.2d at 785 (appellate court does not reweigh

       evidence or judge the credibility of witnesses). See also Johnson, 721 N.E.2d at

       333 (while victim did not testify that she was specifically “terrorized, frightened,

       intimidated, or threatened” by Johnson’s behavior, that fact can be inferred

       from her testimony).


[13]   Finally, Respondent contends “[t]he Record in this case is totally devoid of any

       evidence or even allegation that [D.S] was related to [Petitioner].” (Br. of

       Appellant at 7.) Petitions for protective order may be brought against a “family




       Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 7 of 10
or household member who commits an act of domestic or family violence[.]” 1

Ind. Code § 34-26-5-2(a)(1). Indiana law defines “family or household

member” as a person who:


         (1) is a current or former spouse of the other person;


         (2) is dating or has dated the other person;


         (3) is engaged or was engaged in a sexual relationship with the
         other person;


         (4) is related by blood or adoption to the other person;


         (5) is or was related by marriage to the other person;


         (6) has or previously had an established legal relationship:


                  (A) as a guardian of the other person;


                  (B) as a ward of the other person;




1
  We note the statute is written in the disjunctive and requires a petitioner prove the respondent is either a
“family or household member who commits an act of domestic or family violence” or a “person who has
committed stalking under IC 35-45-10-5 . . . against the petitioner.” Ind. Code § 34-26-5-2(a). A petitioner
need not prove both. See In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999) (statute written in disjunctive
requires proof of only one of the disjunctive elements), reh’g denied, trans. denied, cert. denied 534 U.S. 1161
(2002). We have already concluded Petitioner presented sufficient evidence Respondent stalked her.
However, because the trial court’s order enjoins Respondent from committing acts of family violence against
Petitioner and certain family members, we will address this element.



Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018               Page 8 of 10
                       (C) as a custodian of the other person;


                       (D) as a foster parent of the other person; or


                       (E) in a capacity with respect to the other person similar to
                       those listed in clauses (A) through (D);


               (7) has a child in common with the other person; or


               (8) has adopted a child of the other person.


       Ind. Code § 34-6-2-44.8(a).


[14]   Petitioner testified Respondent was her “[d]aughter in law.” (Tr. Vol. II at 4.)

       It would also seem Petitioner adopted Respondent’s child in a separate

       proceeding. (See id. at 23) (discussing adoption proceedings). We therefore

       conclude Respondent was a family member of Petitioner for the purposes of the

       protective order. See Ind. Code § 34-6-2-44.8(a)(5) & (8) (defining family

       member as someone related by marriage or someone who has adopted a child

       of another person).


[15]   Because all three of Respondent’s allegations of insufficient evidence fail, we

       affirm the trial court’s grant of Petitioner’s request for a protective order. See

       Andrews v. Ivie, 956 N.E.2d 720, 726 (Ind. Ct. App. 2011) (evidence sufficient to

       demonstrate Petitioner proved required elements for order of protection).



                                               Conclusion

       Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 9 of 10
[16]   Petitioner presented sufficient evidence that Respondent called and sent texts to

       Petitioner on more than one occasion and that those contacts caused Petitioner

       fear. Further, Respondent is a family member of Petitioner for the purposes of

       the protective order statute. Accordingly, we affirm the trial court’s entry of a

       protective order.


[17]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 65A01-1709-PO-2086 | March 28, 2018   Page 10 of 10
