                                                                           FILED
                                                                       Jan 29 2019, 8:44 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT
Brent R. Dechert
Kokomo, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

C.S.,                                                      January 29, 2019
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           18A-PO-1566
        v.                                                 Appeal from the Howard Superior
                                                           Court
T.K.,                                                      The Honorable William C.
Appellee-Plaintiff,                                        Menges, Jr., Judge
                                                           Trial Court Cause No.
                                                           34D01-1804-PO-45



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019                           Page 1 of 11
                                  Case Summary and Issue
[1]   T.K. was granted an ex parte order for protection from C.S. After C.S. filed a

      motion to dismiss, the trial court conducted a hearing and again granted T.K.’s

      request for an order for protection. C.S. now appeals the order for protection

      raising a single issue for our review, whether there was sufficient evidence to

      support the issuance of the protective order. Concluding there was insufficient

      evidence to support the issuance of the protective order, we reverse.



                             Facts and Procedural History
[2]   C.S. owns a towing and mobile automobile repair business in Kokomo and

      T.K. is an officer with the Kokomo Police Department. C.S. has a pending

      criminal case against him for “intimidation, stalking and harassment” in which

      T.K. is the alleged victim.1 Transcript of Evidence, Volume II at 4.


[3]   On April 20, 2018, T.K. filed a petition for an order for protection against C.S.,

      alleging that she had been a victim of stalking. In her petition, T.K.

      enumerated three incidents in which she encountered C.S. The first of these

      incidents occurred within the previous three to four months when T.K. was

      having lunch with her mother at a Panera Bread restaurant. T.K. stated that




      1
       Notably, none of the events underlying the pending criminal charges against C.S. were included in T.K.’s
      petition for an order for protection against C.S. or presented as evidence at the hearing on June 12, 2018.

      Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019                             Page 2 of 11
      C.S. “entered the restaurant. [C.S.] is familiar [with] my patrol car that was

      parked in the parking lot.” Appendix of Appellant, Volume 2 at 6.


[4]   The second incident occurred on April 13, 2018, in the parking lot of a U-Haul

      rental location. T.K. stated that she was leaving a nearby store and “observed

      [C.S.] on top of a U-Haul truck . . . using his cell phone to video tape [sic]

      [her].” Id.


[5]   The third and final incident occurred on April 20, 2018, the date T.K. filed her

      petition. T.K. stated that she:


              [W]ent in the post office to mail a [package] [at] 11:35 am, as I
              exited the post office, [C.S.] walked right up behind me and
              followed me out of the [post office]. [C.S.] was not in the
              parking lot when I pulled in but he is very familiar [with] my
              vehicle.


      Id. On the basis of this petition, the trial court granted T.K.’s petition for an

      order for protection ex parte the same day.


[6]   C.S. filed a motion to dismiss the order for protection on May 10, 2018, and the

      parties appeared for a contested hearing on June 12. There, T.K. testified that it

      “[j]ust seems like this is a repetitive behavior for someone that’s out on bond for

      stalking, intimidation and harassment. Seems like it is continuing and it’s

      becoming more frequent.” Tr., Vol. II at 4. The trial court concluded that,


              If we were to look at the individual acts that have been testified
              to in the context of a criminal stalking case, I would have to find
              that [T.K.] has not proved beyond a reasonable doubt that [C.S.]

      Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019        Page 3 of 11
        has committed stalking against her. However, the burden is
        preponderance of the evidence and what one thing that I’ve
        learned over the years is I don’t like coincidences and I’m, to
        start throwing coincidences together, then it starts increasing the
        weight to be given to them and here we have three coincidences
        as established by, at least is claimed, by [C.S.]. I think we have
        gotten over the preponderance of the evidence burden and I think
        what we have to look at, also, is that if in fact [C.S.] wants to
        have no more to do with [T.K.] than she wants him to have with
        her, then a protective order is no harm/no foul, particularly if
        he’s willing to have a no-contact order issued. The only
        difference between a no-contact order in a criminal case, is that
        that one is issued, dismissed or modified solely in the discretion
        of the Judge as opposed to at the request of the petitioner.


        ***


        And if the evidence were to be, you know, you’re throwing out,
        okay, he’s in Panera Bread which he has a right to be, he walks
        into Panera Bread, sees her, the best thing you can do is turn
        around and leave. If he does that, that will not support an
        invasion of privacy charge because it requires the intentional
        violation of the order. So I’m going to find that [T.K.] has
        (inaudible) by a preponderance of the evidence, that stalking has
        occurred sufficient to justify the issuance of a protective order, . .
        . that [C.S.]represents a critical threat to the safety of [T.K.], and
        that the following relief is necessary.


Id. at 30-31. C.S. now appeals.



                           Discussion and Decision



Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019         Page 4 of 11
                                       I. Standard of Review
[7]           Protective orders are similar to injunctions, and therefore in
              granting an order the trial court must sua sponte make special
              findings of fact and conclusions thereon. Hanauer v. Hanauer, 981
              N.E.2d 147, 148 (Ind. Ct. App. 2013) (citing, inter alia, Ind. Trial
              Rule 52(A) and Ind. Code § 34-26-5-9(a), -(f)). 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. Id. at 149. 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. Koch Dev. Corp. v. Koch, 996 N.E.2d
              358, 369 (Ind. Ct. App. 2013), trans. denied (2014). We do not
              reweigh evidence or reassess witness credibility, and we consider
              only the evidence favorable to the trial court’s order. Id. The
              party appealing the order must establish that the findings are
              clearly erroneous. Id. “Findings are clearly erroneous when a
              review of the record leaves us firmly convinced that a mistake has
              been made. We do not defer to conclusions of law, however, and
              evaluate them de novo.” Mysliwy v. Mysliwy, 953 N.E.2d 1072,
              1076 (Ind. Ct. App. 2011) (citation omitted), trans. denied.


      Fox v. Bonam, 45 N.E.3d 794, 798-99 (Ind. Ct. App. 2015).


[8]   Before proceeding to the merits of this appeal, we note that T.K. 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. Spencer v. Spencer,

      990 N.E.2d 496, 497 (Ind. Ct. App. 2013). Instead, we apply a less stringent

      standard of review and may reverse if the appellant establishes prima facie

      error, namely “error at first sight, on first appearance or on the face of it.” Id.

      (quoting Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006)).

      Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019        Page 5 of 11
                                      II. Order for Protection
[9]    The Indiana Civil Protection Order Act was enacted to promote the “protection

       and safety of all victims of domestic or family violence in a fair, prompt, and

       effective manner” and to prevent “future domestic and family violence.” Ind.

       Code § 34-26-5-1. Domestic violence includes stalking which 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; Ind. Code § 34-6-2-34.5 (explaining “[f]or purposes of IC 34-26-5,

       domestic and family violence also includes stalking . . . whether or not the

       stalking . . . is committed by a family or household member.”). However,

       stalking “does not include statutorily or constitutionally protected activity.”

       Ind. Code § 35-45-10-1.


[10]   Harassment is defined as “conduct directed toward a victim that includes but is

       not limited to repeated or continuing impermissible contact that would cause a

       reasonable person to suffer emotional distress and that actually causes the

       victim to suffer emotional distress.” Ind. Code § 35-45-10-2. Impermissible

       contact “includes but is not limited to knowingly or intentionally following or

       pursuing the victim.” Ind. Code § 35-45-10-3. And, as with stalking,

       “[h]arassment does not include statutorily or constitutionally protected

       activity[.]” Ind. Code § 35-45-10-2.



       Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019       Page 6 of 11
[11]   A person who has been a victim of stalking may file a petition for a protective

       order. Ind. Code § 34-26-5-2(a).


               A finding that domestic or family violence has occurred sufficient
               to justify the issuance of an order . . . means that a respondent
               represents a credible threat to the safety of a petitioner or a
               member of a petitioner’s household. Upon a showing of
               domestic or family violence by a preponderance of the evidence,
               the court shall grant relief necessary to bring about a cessation of
               the violence or the threat of violence.


       Ind. Code § 34-26-5-9(f). We have also noted the “significant ramifications of

       an improperly granted protective order[,]” which can pose “a considerable

       threat to the respondent’s liberty.” Barger v. Barger, 887 N.E.2d 990, 993-94

       (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.’” Id. at 993 (quoting Ind. Code § 34-26-5-3).


[12]   Here, the trial court concluded that C.S. committed stalking against T.K., not

       based on any single allegation, but rather three separate allegations that it found

       to be true. C.S. argues that all of their encounters appear to have been by

       “chance” or “coincidence” and that “[e]ach time T.K. saw C.S. it was in a

       public setting where both parties had a legitimate reason to be present.” Brief of

       Appellant at 9. We therefore address each allegation in turn.


[13]   The first allegation occurred at a Panera Bread restaurant three to four months

       before T.K. filed her petition. T.K. testified that she was eating lunch with her

       mother when she saw C.S. enter the restaurant with another person and order

       Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019       Page 7 of 11
       food to go. T.K. affirmed that C.S. did not approach her or say anything to her

       and simply left the restaurant after receiving his order. Tr., Vol. II at 6. Aside

       from the fact that C.S. was familiar with T.K.’s patrol car that was parked in the

       parking lot, see App. of Appellant at 6, T.K. did not present any evidence that

       C.S. “knowingly or intentionally follow[ed] or pursu[ed]” her into the

       restaurant, Ind. Code § 35-45-10-3. Because the definition of stalking excludes

       “statutorily or constitutionally protected activity[,]” Ind. Code § 35-45-10-1,

       and C.S. had the right to be in a public place, see, e.g., Kent v. Dulles, 357 U.S.

       116, 125 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen

       cannot be deprived without due process of law under the Fifth Amendment.”),

       we conclude this allegation cannot support a finding of harassment.


[14]   The second allegation occurred in the parking lot of a U-Haul rental location.

       T.K. stated that she “observed [C.S.] on top of a U-Haul truck . . . using his cell

       phone to video tape [her].” App. of Appellant, Vol. 2 at 6. At the hearing, C.S.

       testified that he occasionally does work for U-Haul and that he had received a

       text from the U-Haul regional manager on Thursday, April 12 at 11:24 pm that

       a U-Haul truck needed repairs. Tr., Vol. II at 17; Exhibits Volume at 13. The

       incident occurred the next day, Friday, April 13, when T.K. was leaving a

       nearby store. C.S. testified that he had climbed on top of a U-Haul truck to

       take pictures of damage and he produced copies of four pictures, including a

       text receipt of a picture showing damage that he had sent the regional manager

       at 10:26 am. Exhibits Volume at 5-8, 13. T.K. stated that she left a store at

       10:16 am and was driving through the parking lot when she saw “a pair of pants


       Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019         Page 8 of 11
       with yellow across the bottom of them and I look up and there’s [C.S.] on top

       of the U-Haul van” videotaping her. Tr., Vol. II at 24.


[15]   Once again, T.K. affirmed that C.S. did not approach her or say anything to

       her. Rather, it was T.K. who stopped her vehicle near C.S., as she explained:


               I did stop. I wanted him to know that I see you once again
               videotaping me. You know, I’m not invisible. That’s all I say to
               him, I drive away . . . .


       Id. at 25. C.S. testified that when T.K. approached him:


               I was actually climbing down. I’d already taken my four
               photographs, which you entered [into evidence]. I’d already
               taken the four photographs of the damage of the truck to send to
               the manager of U-Haul and I was actually on my way climbing
               down, paying more attention to climbing down. I actually was in
               shock that she rolled up and stopped approximately ten foot [sic]
               from me and waved and said hi. I was actually kind of in shock
               because my main focus, I didn’t have a ladder, to climb up on
               this truck. My main focus was getting down without falling.


       Id. at 19.


[16]   Even taking the evidence most favorable to the trial court’s order, as we must,

       see Fox, 45 N.E.3d at 798, and accepting as fact that C.S. was videotaping T.K.

       from the top of the U-Haul, we still cannot conclude this allegation constituted

       harassment. Under certain circumstances, the act of videotaping a police

       officer in public may well be a “constitutionally protected activity[,]” Ind. Code

       § 35-45-10-2, which is excluded from the definition of harassment, see ACLU of


       Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019     Page 9 of 11
       Illinois v. Alvarez, 679 F.3d 583, 595-96 (7th Cir. 2012) (holding Illinois’

       wiretapping statute criminalizing the audio and video recording of police

       officers violated the clearly established constitutional right to record a police

       officer). But, in any event, there is no evidence that C.S. “knowingly or

       intentionally follow[ed] or pursu[ed]” T.K. into the U-Haul parking lot. Ind.

       Code § 35-45-10-3. To the contrary, the evidence reveals that C.S.’s presence

       was requested by U-Haul, that C.S. was on top of the U-Haul truck to take

       pictures of damage, and that T.K. approached C.S., not the other way around.

       Under these circumstances, we cannot conclude this allegation supported a

       finding of harassment.


[17]   The third and final allegation occurred at the post office on April 20, 2018.

       T.K. testified that C.S. was not in the post office when she entered but that as

       she exited, C.S. “rushed up behind me in an aggressive fashion.” Tr., Vol. II at

       4. Again, the only evidence that C.S. may have known T.K. was present in the

       post office was C.S.’s purported familiarity with T.K.’s police car. But despite

       that, and evidence that C.S. has had a post office box at that location for over

       ten years, Exhibits Volume at 10-11, we conclude that T.K.’s testimony that

       C.S. “rushed up behind [her] in an aggressive fashion[,]” Tr., Vol. II at 4, is, for

       purposes of our standard of review, evidence of impermissible contact. See Ind.

       Code § 35-45-10-3 (impermissible contact “includes but is not limited to

       knowingly or intentionally following or pursuing the victim”).


[18]   Thus, our review of the record reveals there was sufficient evidence to establish

       harassment on only one of the three occasions alleged in T.K.’s petition. As

       Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019       Page 10 of 11
       noted above, “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 (emphasis added).

       Although we accept T.K.’s testimony that she was “afraid[,]” tr., vol. II at 5, a

       single incident of harassment is insufficient to support a finding of stalking. See

       Johnson v. State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999) (concluding “the

       term ‘repeated’ in Indiana’s anti-stalking law means ‘more than once’”), trans.

       denied. We therefore conclude C.S. has demonstrated prima facie error and the

       evidence was insufficient to support a finding of stalking and the issuance of an

       order for protection.



                                                Conclusion
[19]   Concluding there was insufficient evidence presented at the hearing to support

       the trial court’s issuance of a protective order, we reverse.


[20]   Reversed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019     Page 11 of 11
