                                                                                FILED
                                                                            Nov 22 2016, 9:37 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                    APPELLEE, PRO SE
      Mark A. Bates                                             C.R.
      Schererville, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      C.V.,                                                     November 22, 2016
      Appellant,                                                Court of Appeals Case No.
                                                                45A03-1606-PO-1282
              v.                                                Appeal from the Lake Circuit
                                                                Court
      C.R.,                                                     The Honorable Michael A.
      Appellee.                                                 Sarafin, Magistrate
                                                                Trial Court Cause No.
                                                                45C01-1602-PO-36



      Pyle, Judge.


                                        Statement of the Case
[1]   C.V. appeals the trial court’s issuance of a protective order against him in favor

      of C.R. He argues that the trial court erred because C.R. did not produce

      sufficient evidence that he stalked her and, therefore, that a protective order was

      warranted. We agree and reverse the trial court’s decision. We remand with

      instructions to vacate the protective order against C.V.

      Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016                  Page 1 of 9
[2]   We reverse and remand with instructions.


                                                      Issue
              Whether there was sufficient evidence to support the trial court’s
              issuance of a protective order against C.V.

                                                      Facts
[3]   In July of 2015, C.R. found a note on her car outside of her workplace at the

      Department of Veterans Affairs (“V.A.”). The note “was basically saying

      things about [her] physical attributes.” (Tr. 36). She was able to identify the

      author as a Marine due to a reference in the note to “Semper-Fi,” but the note

      did not otherwise contain any identifying information. (Tr. 38). Two weeks

      later, C.R. found a second note on her car that “said about the same type of

      thing” as the first note and again lacked any identifying information. (Tr. 37).

      She filed a report about the note with the V.A. Police, and the police asked her

      whether she had seen any patients who could have left the notes. She reviewed

      her patients but could not determine who might have left them.


[4]   Seven months later, C.R. found a third note on her car at work. It was “the

      same type of note,” only “a little bit more kinky.” (Tr. 37-38). On another day,

      she then found a fourth note on her car. After this note, C.R. was able to match

      the dates on which she had found the four notes with dates that C.V. had

      visited the V.A. as a patient. She forwarded this information to the officer

      investigating the notes, and he then confirmed that C.V. had placed the note on

      C.R.’s car when he reviewed the V.A.’s parking lot surveillance camera


      Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016   Page 2 of 9
      footage.1 This officer, Jeffrey Trama (“Officer Trama”), called C.V., and C.V.

      admitted that he had left the notes. Officer Trama told C.V. to stop leaving the

      notes, and C.V. did so.


[5]   C.R. did not press criminal charges against C.V., but she filed a pro se petition

      for an ex parte protective order against him on February 19, 2016.2 The trial

      court granted C.R.’s petition on February 22, 2016 and issued the ex parte

      protective order. However, on March 7, 2016, C.V. requested a hearing on the

      protective order, and the trial court held a hearing on April 6, 2016.


[6]   At the hearing, C.R. appeared pro se, and C.V. appeared represented by

      counsel. The trial court asked C.R. if she would like to continue the hearing so

      that she could retain an attorney, and she declined the trial court’s offer. The

      trial court then told C.R.: “All right; well, ma’am, if you proceed to represent

      yourself, you understand that the rules of evidence apply. Counsel may

      interpose objections based on those rules of evidence[,] and you may not be

      fully trained or versed in those rules; do you understand that?” (Tr. 7). C.R.

      replied, “Yes,” and the hearing continued as planned. (Tr. 8).


[7]   C.R. testified to the events described above and further described the notes she

      had received. She said that in the third note, C.V. had written “your laugh is




      1
        The location of C.R.’s car when C.V. left the first three notes had previously prevented the officer from
      identifying him in the surveillance footage.
      2
          This petition is not a part of the record.


      Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016                         Page 3 of 9
       even more than music to my ears.” (Tr. 44). Then, she testified that in the

       fourth note C.V. had written “I wish you could have been mine; things would

       be so much far [sic] better for us. . . . X-O-X-O-X-O.” (Tr. 44). C.R.

       considered this note “crazy-creepy.” (Tr. 38).


[8]    Officer Trama also testified, and during his direct examination, C.R. attempted

       to admit the four notes and the surveillance video of C.V. into evidence. C.V.’s

       attorney objected on the grounds that C.R. had failed to tender either the notes

       or video to C.V. and that C.R. had failed to lay a proper foundation for their

       admission. The trial court sustained the objection, reminding C.R. that it could

       not teach her how to lay a foundation for evidence. Thereafter, C.R. failed to

       properly offer the notes or video for admission into evidence, and they were not

       admitted.


[9]    At the conclusion of the hearing, the trial court took the matter under

       advisement. On May 6, 2016, it issued a protective order prohibiting C.V. from

       contacting C.R. for two years, among other restrictions. As a basis for its order,

       the trial court found that C.R. had shown by a preponderance of the evidence

       that C.V. had stalked her and that C.V. represented a “credible threat to” her

       safety. (App. 7). C.V. now appeals.


                                                    Decision
[10]   On appeal, C.V. argues that C.R. failed to present sufficient evidence to support

       the trial court’s issuance of the protective order. Specifically, he contends that



       Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016   Page 4 of 9
       there was no evidence that he stalked her as required for the issuance of a

       protective order.


[11]   Initially, we note that C.R. did not file an appellee’s brief. When an appellee

       fails to submit a brief, we need not undertake the burden of developing

       argument on the appellee’s behalf. A.S. v. T.H., 920 N.E.2d 803, 805 (Ind. Ct.

       App. 2010). Rather, we will reverse the trial court’s judgment if the appellant’s

       brief presents a case of prima facie error. Id. Prima facie error in this context is

       defined as “‘at first sight, on first appearance, on the face of it.’” Id. (quoting

       Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). When the

       appellant is unable to meet his burden, we will affirm. Id. at 806. In making

       this determination, we will neither reweigh the evidence nor resolve questions

       of credibility. Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App. 2004). We look

       only to the evidence of probative value and reasonable inferences that support

       the trial court’s judgment. Id.


[12]   This Court has noted the “‘significant ramifications of an improperly granted

       protective order.’” J.K. v. T.C., 25 N.E.3d 179, 181 (Ind. Ct. App. 2015)

       (quoting Barger v. Barger, 887 N.E.2d 990, 993 (Ind. Ct. App. 2008)). “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.’ I.C. § 34-26-5-3. . . .

       Thus, an improperly granted protective order may pose a considerable threat to

       the respondent’s liberty.” Id.




       Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016   Page 5 of 9
[13]   In order for a trial court to issue a protective order, the petitioner must prove by

       a preponderance of the evidence that stalking has occurred. Tons, 815 N.E.2d

       at 511; see also I.C. § 34-26-5-2(a)(2) (allowing a petitioner to file a petition for a

       protective order against a “person who has committed stalking”). Indiana law

       defines “stalking” 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.’” Maurer v. Cobb-Maurer, 994 N.E.2d 753, 757 (Ind. Ct. App. 2013)

       (quoting I.C. § 35-45-10-1) (emphasis added).


[14]   Here, C.V. claims that C.R. did not produce any evidence to support the trial

       court’s conclusion that he stalked her because the contents of the notes were

       never admitted into evidence. He contends that, because there was no evidence

       of the content of the notes, there was no evidence that his actions would have

       caused a reasonable person to feel terrorized, frightened, intimidated, or

       threatened. Accordingly, we must consider whether the evidence that C.V. left

       C.R. four notes and C.R.’s vague testimony regarding the content of those notes

       were sufficient to prove that a reasonable person would have felt terrorized,

       frightened, intimidated, or threatened by C.V. We conclude that they were not.


[15]   As a basis for this conclusion, we find our decision in Maurer persuasive.

       There, we held that a man had not stalked his former wife, even though his

       former wife alleged that he had sent her “constant emails and text messag[es].”

       Maurer, 994 N.E.2d at 755. The wife had admitted one email from him into

       Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016   Page 6 of 9
       evidence and had testified that it was “one of many emails.” Id. In the email,

       he wished her a Happy Valentine’s Day, told her he loved her, and told her that

       he wanted to restore their marriage. Id. He also told her that he forgave her for

       her romantic relationship with another man and that he disapproved of divorce.

       Id.


[16]   In our opinion on appeal, we noted that contact does not have to be threatening

       on its face to constitute stalking. Id. at 757. However, we held that contact “on

       more than one occasion cannot—without more—constitute stalking.” Id. We

       concluded that there was not sufficient evidence of stalking in Maurer because,

       in part, we found the wife’s testimony that she had received “many” and

       “constant” emails from her former husband vague. Id. at 758-59. We noted

       that she had not provided any dates for the emails, other than the email she had

       admitted into evidence, or an estimate of the total number of emails she had

       received. Id. at 758. We concluded that “‘[m]any’ emails over the course of an

       undisclosed timeframe” could have been “as few as two or as numerous as two

       million.” Id. at 759. We also found it significant that the wife had not

       produced any evidence that she had asked her former husband to stop sending

       her emails. Id. This factor was significant because “one can hardly characterize

       mutual communication between two parties as harassment within the meaning

       of the stalking statute.” Id. Based on these two factors, we concluded that the




       Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016   Page 7 of 9
       wife had not produced sufficient evidence of contact that would have caused a

       reasonable person to feel terrorized, frightened, intimidated or threatened. 3 Id.


[17]   Based on our decision in Maurer, we conclude that C.R. did not produce

       sufficient evidence that C.V.’s contact with her constituted stalking. Although

       her testimony regarding the number of times C.V. contacted her was not vague,

       it is clear that his contact with her was relatively insignificant. He left notes on

       her car on four occasions, and an interval of seven months passed between two

       of the notes. C.V.’s contact can hardly be considered frequent. More

       significantly, though, as in Maurer, C.R. did not produce any evidence that she

       asked C.V. to stop sending her the notes or that he persisted after she asked him

       to stop. To the contrary, Officer Trama testified that C.V. did not send any

       notes once he contacted him and asked him to stop.


[18]   Finally, while this was not a factor in Maurer, we must note that the nature of

       C.V.’s contact appears to have been relatively non-threatening. Specifically, he

       contacted C.R. in a public area on dates that happened to coincide with his

       treatment at the V.A. He did not make any attempts to express the contents of

       his notes in person or in private. Instead, he left the notes in a public location

       where C.R. would find them. These factors might not be dispositive under



       3
         For the sake of comparison, we also noted in Maurer that we had affirmed the trial court’s issuance of a
       protective order in Andrews v. Ivie, 956 N.E.2d 720 (Ind. Ct. App. 2011). Id. at 758. In Andrews, there was
       evidence regarding “the extent of the contacts, numerous unwelcome gifts from Andrews, Ivie’s repeated
       demands that he leave her alone, her attempts to avoid contact from him, and Ivie’s testimony regarding the
       effect of the contacts on her.” Id. (discussing Andrews, 956 N.E.2d at 724).



       Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016                     Page 8 of 9
       different circumstances. However, 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.

       Accordingly, we conclude that C.V. has presented a prima facie case that C.R.

       did not produce sufficient evidence that C.V. stalked her.4 As a result, we

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

       the protective order.


[19]   Reversed and remanded with instructions.


       Bradford, J, and Altice, J., concur.




       4
         Because we have concluded that a reasonable person would not have felt terrorized, frightened, intimidated,
       or threatened by C.V.’s acts, we need not address whether C.R. actually felt terrorized, frightened,
       intimidated, or threatened. See I.C. § 35-45-10-1.

       Court of Appeals of Indiana | Opinion 45A03-1606-PO-1282 | November 22, 2016                      Page 9 of 9
