MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Feb 22 2017, 10:06 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Megan J. Schueler                                        Justin J. Harrison
Ferguson Law                                             Slotegraaf Niehoff, P.C.
Bloomington, Indiana                                     Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Han Chong,                                               February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         53A01-1609-PO-2073
        v.                                               Appeal from the Monroe Circuit
                                                         Court
Jung Hee Kim,                                            The Honorable Valeri Haughton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         53C08-1511-PO-2174



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017    Page 1 of 8
                                             Case Summary
[1]   Han Chong (“Chong”) appeals an order of protection preventing him from

      having contact with his business associate Jung Hee Kim (“Kim”), who alleged

      that she had been the victim of stalking. Chong presents the issue of whether

      the protective order was issued absent sufficient evidence that he stalked Kim. 1

      We reverse.



                              Facts and Procedural History
[2]   Kim purchased a sake bar in Bloomington, Indiana, and was permitted to enter

      the United States from Korea on an investor’s visa. Chong, whose family

      owned an adjoining business property, provided assistance to Kim both

      professionally and personally. He trained Kim in restaurant operations and

      offered professional advice. Additionally, he located an apartment for Kim and

      loaned her a vehicle and cell phone. Chong, Kim, and a restaurant employee

      named Gina socialized together. Chong also interacted with Kim’s children.


[3]   On November 13, 2015, Kim petitioned for an order of protection, asserting as

      grounds that she had been a victim of a sex offense and stalking. Kim alleged




      1
       Chong also alleged that the trial court abused its discretion by allowing Kim to continue testifying after her
      attorney indicated that he had concluded his questions. We need not address this issue, as the issue of
      sufficiency of the evidence is dispositive.

      Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017             Page 2 of 8
      that Chong had, on several occasions, made comments of a sexual nature that

      caused Kim to feel “very ashamed and embarrassed.” (App. at 15.)


[4]   On January 4 and January 8, 2016, the trial court conducted a hearing. At the

      conclusion of the hearing, the trial court verbally ordered both parties to refrain

      from contacting the other. On August 8, 2016, the trial court entered an order

      of protection as requested by Kim, concluding that Kim had been a victim of

      stalking. Chong now appeals.



                                 Discussion and Decision
[5]   Under Indiana Code § 34-26-5-2(a):

              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.


[6]   “Stalk” means “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. “Harassment” means “conduct directed toward

      a victim that includes but is not limited to repeated or continuing impermissible

      Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017   Page 3 of 8
      contact that would cause a reasonable person to suffer emotional distress and

      that actually causes the victim to suffer emotional distress.” I.C. § 35-45-10-2.


[7]   A protective order may be issued when a trial court finds, by a preponderance

      of the evidence, that the respondent represents a credible threat to the safety of

      the petitioner. Maurer v. Cobb-Maurer, 994 N.E.2d 753, 756 (Ind. Ct. App. 2013)

      (citing I.C. § 34-26-5-9(f)). An improperly granted protective order has

      significant ramifications; specifically, a violation of a trial court’s protective

      order is punishable by imprisonment or a fine. C.V. v. C.R., 64 N.E.3d 850, 853

      (Ind. Ct. App. 2016) (citing I.C. § 34-26-5-3). When reviewing the sufficiency

      of evidence to support a protective order, the reviewing court does not reweigh

      the evidence and will not judge witness credibility. Maurer, 994 N.E.2d at 755.

      We consider only the probative evidence and reasonable inferences that support

      the judgment. Id.


[8]   Kim testified in support of the protective order that the following events

      occurred:

              Chong asked Kim for a kiss and Kim responded that she did not
              want to kiss Chong;


              Chong stated to Kim that if she slept with him, he would give her
              preferential treatment;


              Chong again referred to his interest in having a sexual
              relationship with Kim, stated that he didn’t waste time, and they
              would be sleeping together before the end of the year;



      Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017   Page 4 of 8
               Kim became aware that Chong had a handgun when Kim
               borrowed Chong’s vehicle and he removed the handgun to keep
               it away from Kim’s children;


               In a text message exchange, Chong admitted to having sexual
               thoughts when he recalled a visit that he [or he and Kim] had
               made to an adult bookstore2 and he questioned whether Kim
               thought he was dangerous; and


               After Kim had filed for a protective order, Chong came into a
               store, looked at Kim, and came close to the register where Kim
               was purchasing cigarettes.


[9]    Kim testified that Chong’s sexual overtures caused her to feel “shameful and

       embarrassing [sic]” and that she “kind of felt threatened.” (Tr. At 60.) Kim

       explained that, in Korea, private ownership of guns is not permitted and

       Chong’s “representation” that he had a gun and text reference to “a dangerous

       man” collectively made her feel that Chong was “really threatening.” (Tr. at

       64.)


[10]   From a subjective standpoint, Kim may have perceived a threat to herself or

       experienced terror, fright, or intimidation. However, a protective order on

       stalking grounds also requires the satisfaction of an objective test. The

       petitioner must establish by a preponderance of the evidence that a “course of

       conduct would cause a reasonable person to feel terrorized, frightened,




       2
         Kim testified that Chong drove to the store and went inside. She did not address whether or not she went
       inside. According to Chong, he waited in a hallway while Kim made a purchase.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017         Page 5 of 8
       intimidated, or threatened.” Cruse v. C.C., 58 N.E.3d 974, 977 (Ind. Ct. App.

       2016).


[11]   In Cruse, a panel of this Court found insufficient evidence of stalking where the

       petitioner testified that her ex-husband: threatened to make a scene at their

       child’s school; went to her place of employment and made her boss

       uncomfortable; caused teachers to feel uncomfortable; made claims at a

       baseball game that the petitioner “was probably banging a colleague” and then

       confronted the colleague by “getting in his face.” Id. at 976. There was no

       evidence of any threat of physical harm. Id. at 977.


[12]   Likewise, in Maurer, we found insufficient evidence of stalking where the

       evidence showed only that an ex-husband had sent the petitioner “constant

       emails and text messages” but the petitioner did not testify as to the effects and

       she did not claim that she had asked her ex-husband to stop contacting her. 994

       N.E.2d at 755. The Court observed that “it is often the case that stalking is

       found where contact between persons includes some form of physical threat”

       but further observed that “there is no requirement that the contact at issue be

       threatening on its face, and stalking may be found where other evidence is

       sufficient to prove that the contact amounted to harassment.” Id. at 757-58.

       However, where evidence of harassment is lacking, “the mere fact that contact

       occurred between [the parties] on more than one occasion cannot – without

       more – constitute stalking.” Id. at 757. The Maurer Court re-iterated that the

       conduct must be such as to “cause a reasonable person to feel terrorized,

       frightened, intimidated, or threatened.” Id.

       Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017   Page 6 of 8
[13]   Very recently, in C.V., we found that a protective order was unwarranted when

       the conduct at issue consisted of the respondent’s leaving four notes at the

       petitioner’s workplace, some of which were described as “kinky.” 64 N.E.3d at

       851. The Court found it to be “significant” that there was no evidence that the

       petitioner had asked the respondent to stop sending the notes or that he had

       persisted after such a request. Id. at 854. Also, the contact “appeared to have

       been relatively non-threatening.” Id. We concluded: “because there was no

       evidence that the contents of the notes were threatening, we cannot conclude

       that there was sufficient evidence that a reasonable person would have felt

       terrorized, frightened, intimidated, or threatened by C.V.’s acts under these

       circumstances.” Id.


[14]   We find these decisions persuasive in the instant case. Kim did not ask Chong

       to stop his allegedly intimidating communications before she petitioned for a

       protective order. There is no evidence that Chong contacted Kim after the

       petition was filed. The communications, although sexual in nature, did not

       suggest that Chong intended sexual contact by force. Nor is there evidence that

       Chong used his handgun to threaten or intimidate Kim. Given Kim’s historical

       lack of contact with weapons, she may well have found Chong’s ownership of a

       handgun to be unsettling. However, our review of the record leaves us with a

       firm conviction that there was insufficient evidence to support a finding that the

       conduct at issue would cause a reasonable person to feel terrorized, frightened,

       intimidated, or threatened. The trial court’s issuance of the protective order

       was in error.


       Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017   Page 7 of 8
[15]   Reversed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017   Page 8 of 8
