MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                            Nov 14 2018, 6:37 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                           CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Darlene R. Seymour                                      Jane H. Ruemmele
Bryan L. Ciyou                                          Hayes Ruemmele, LLC
Ciyou & Dixon, P.C.                                     Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

V.E.,                                                   November 14, 2018
Appellant-Petitioner,                                   Court of Appeals Case No.
                                                        18A-PO-1226
        v.                                              Appeal from the Hamilton
                                                        Superior Court
A.S.,                                                   The Honorable William J. Hughes,
Appellee-Respondent.                                    Judge
                                                        Trial Court Cause No.
                                                        29D03-1803-PO-1910




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018               Page 1 of 5
                                          Case Summary
[1]   In May of 2017, then-twenty-eight-year-old V.E. and then-twenty-year-old A.S.

      were engaging in sexual intercourse when they were interrupted by V.E.’s

      mother. V.E. subsequently sought a protective order against A.S., claiming that

      A.S. had committed a sex offense against her and had stalked her. The trial

      court issued an Ex Parte Order for Protection (“Ex Parte Order”) and set the

      matter for a hearing. Following the hearing, the trial court terminated the Ex

      Parte Order and denied V.E.’s request for an order of protection, determining

      that V.E. had failed to establish that either a sex offense or stalking had

      occurred. V.E. challenges the trial court’s determination regarding the sex

      offense on appeal. Because we conclude that the trial court’s determination is

      supported by the record, we affirm.



                            Facts and Procedural History
[2]   Prior to the night in question, V.E. and A.S. performed in a jazz band and

      attended some social events together. Although V.E. denied being involved in

      a romantic relationship with A.S., she expressed interest in such a relationship

      on various occasions.


[3]   On the evening of May 3, 2017, the jazz band rehearsed and had dinner

      together at the home V.E. shared with her mother. After rehearsal, A.S. stayed

      and socialized with V.E. At some point, V.E. and A.S. began engaging in

      sexual intercourse. They continued to do so until they were interrupted by


      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018   Page 2 of 5
      V.E.’s mother. After V.E.’s mother made her presence known, V.E. expressed

      her embarrassment before running up the stairs to her bedroom.


[4]   The next day, V.E. sent A.S. a series of text messages. At first, V.E. admitted

      to initiating sexual contact. V.E.’s texts later became accusatory and suggested

      that A.S. had taken advantage of her when she was drunk. Two days after the

      incident, V.E. sought medical treatment for an alleged rape.


[5]   On March 1, 2018, V.E. filed a petition for a protective order against A.S.,

      alleging that she had been the victim of a sex offense committed by A.S. Based

      on the statements alleged in V.E.’s petition, the trial court granted an Ex Parte

      Order and set the matter for a hearing. V.E.’s testimony during the two-day

      hearing differed significantly from that of both her mother and A.S.

      Specifically, her testimony regarding her alleged state of drunkenness and hers

      and A.S.’s actions leading up to, during, and after intercourse contradicted the

      largely consistent testimony presented by her mother and A.S. V.E.’s testimony

      also contained contradictions to earlier statements she had given in connection

      to the case. On April 30, 2018, the trial court terminated the Ex Parte Order

      and denied V.E.’s request for an order of protection, finding that V.E. “has not

      shown, by a preponderance of the evidence, that … a sex offense has occurred

      sufficient to justify the issuance of an Order for Protection.” Appellant’s App.

      Vol. II p. 8.



                                Discussion and Decision

      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018   Page 3 of 5
[6]   V.E. contends that the trial court erred in denying her request for a protective

      order against A.S.


              Protective orders are similar to injunctions…. We apply a two-
              tiered standard of review: we first determine whether the
              evidence supports the findings, and then we determine whether
              the findings support the order. In deference to the trial court’s
              proximity to the issues, we disturb the order only where there is
              no evidence supporting the findings or the findings fail to support
              the order. We do not reweigh evidence or reassess witness
              credibility, and we consider only the evidence favorable to the
              trial court’s order. The party appealing the order must establish
              that the findings are clearly erroneous. Findings are clearly
              erroneous when a review of the record leaves us firmly convinced
              that a mistake has been made.


      Fox v. Bonam, 45 N.E.3d 794, 798 (Ind. Ct. App. 2015) (citations and quotation

      omitted).


[7]   In challenging the trial court’s denial of her request for a protective order, V.E.

      asserts that the trial court erroneously determined that she failed to prove by a

      preponderance of the evidence that a sex offense occurred. While V.E. admits

      that she and A.S. engaged in sexual intercourse, she argues that “the

      undisputed evidence in this case is that the parties engaged in sexual intercourse

      at a time when [V.E.] was very drunk” and “was not legally capable of

      consenting to sexual conduct.” Appellant’s Br. p. 7.


[8]   It is not undisputed, however, that V.E. was “very drunk.” While the record

      indicates that V.E. drank at least some alcohol on the night in question, it

      contains contradictory evidence relating to the amount of alcohol consumed

      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018   Page 4 of 5
      and V.E.’s resulting level of drunkenness. The trial court, acting as the trier-of-

      fact, found that V.E. failed to prove by a preponderance of the evidence that she

      was so intoxicated that she could not give consent. V.E.’s claims on appeal

      effectively amount to an invitation for this court to reassess her credibility and

      reweigh the evidence, which we will not do. Fox, 45 N.E.3d at 798. The

      evidence most favorable to the trial court’s order supports its determination that

      V.E. failed to prove that a sex offense occurred. We therefore affirm the trial

      court’s termination of the Ex Parte Order and denial of V.E.’s request for an

      order of protection against A.S.


[9]   The judgment of the trial court is affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-PO-1226 | November 14, 2018   Page 5 of 5
