MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               May 04 2018, 8:38 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT
Caroline B. Briggs
Lafayette, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

S.T.,                                                   May 4, 2018
Appellant-Respondent,                                   Court of Appeals Case No.
                                                        12A05-1710-PO-2356
        v.                                              Appeal from the Clinton Superior
                                                        Court
K.D.,                                                   The Honorable Donald Currie,
Appellee-Petitioner                                     Senior Judge
                                                        Trial Court Cause No.
                                                        12D01-1707-PO-588



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018               Page 1 of 9
[1]   S.T. (“Respondent”) appeals the grant of a protective order to K.D.

      (“Petitioner”). Respondent presents three issues, which we restate as:


              1. Whether the trial court abused its discretion when it granted
              the State of Indiana’s Motion to Quash Respondent’s subpoena
              of Angie Dunk, an employee of the Clinton County Prosecutor’s
              Office;


              2. Whether the trial court abused its discretion when it entered
              an order striking Respondent’s motion to produce evidence; and


              3. Whether Petitioner presented sufficient evidence of
              Respondent’s stalking to obtain a protective order.


      We affirm.



                            Facts and Procedural History
[2]   On July 7, 2017, Petitioner requested a protective order against Respondent,

      alleging Respondent committed multiple acts of stalking against Petitioner. On

      July 31, 2017, Respondent filed a motion to produce evidence and a subpoena

      for Angie Dunk, an employee of the Clinton County Prosecutor’s Office. On

      August 1, 2017, the trial court entered an order striking Respondent’s motion to

      produce evidence because it did not comport with the relevant trial rules. On

      August 4, 2017, the Clinton County Prosecutor’s Office filed a motion to quash

      Respondent’s subpoena of Dunk. On August 8, 2017, the trial court granted

      the motion to quash.




      Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018   Page 2 of 9
[3]   On August 25, 2017, the trial court held a hearing on Petitioner’s request for a

      protective order. Both parties appeared pro se. The parties did not dispute

      Petitioner loaned Respondent money, which Respondent had not paid back.

      Petitioner presented testimony of at least two incidents with Respondent that

      caused Petitioner to feel “upset,” (Tr. Vol. II at 10); “rattled,” (id. at 12);

      “shocked,” (id. at 24); and “shooken [sic] up.” (Id. at 35.) Based on the

      evidence, the trial court entered a protective order and stated:


              [Court]:                 [Respondent], you are not to have contact
                                       with [Petitioner]. Directly. Indirectly.


              [Respondent]:            I have no contact.


              [Court]:                 Or through any okay well that makes it easy.
                                       Not a big deal then. Uh simply uh
                                       [Petitioner] you can’t be contacting
                                       [Respondent] asking her where the money is
                                       or anything like that. Because [Respondent]
                                       is now under an Order of Protection like
                                       you’ve requested. You’ve got it.
                                       [Respondent’s] not gonna make any contact
                                       with you uh direct or indirectly except
                                       through an attorney of law. Uh they can
                                       make contact with you about notices and
                                       things like that. But you cannot make
                                       contact with [Respondent]. [Respondent’s]
                                       not gonna be making contact with you.


      (Id. at 79) (errors in original).




      Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018   Page 3 of 9
                                Discussion and Decision
[4]   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

      appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216,

      221 (Ind. Ct. App. 2006).


                           Grant of Motion to Quash Subpoena
[5]   The trial court has broad discretion in ruling on a motion to quash, and we will

      reverse the trial court’s order only for an abuse of discretion. Matter of Estate of

      Wilson, 610 N.E.2d 851, 854 (Ind. Ct. App. 1993), reh’g denied, trans. denied, cert.

      denied sub nom. Phipps v. Wilson, 510 U.S. 1072 (Jan. 18, 1994). Respondent

      argues the trial court abused its discretion when it granted the Clinton County

      Prosecutor’s Office’s motion to quash the subpoena of Angie Dunk because

      Respondent was not given adequate notice of the motion to quash and, thus,

      was not able to respond thereto.




      Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018   Page 4 of 9
[6]   On July 31, 2017, Respondent 1 filed a subpoena for the presence and testimony

      of Angie Dunk, an employee of the Clinton County Prosecutor’s Office. On

      August 4, 2017, in response to Respondent’s subpoena of Dunk, the Clinton

      County Deputy Prosecuting Attorney filed a motion to quash the subpoena

      because “any information [Dunk] may have received from Petitioner while

      working in the Clinton County Prosecutor’s Office pertains to an active

      criminal investigation, and therefore, an expectation of privacy exists.” (App.

      Vol. II at 20.) The motion to quash also stated, “Dunk has no testimony to

      offer that would be relevant to this proceeding.” (Id.) On August 8, 2017, the

      trial court granted the Prosecutor’s motion to quash.


[7]   It is well-settled to preserve an error in a pre-trial ruling, a party must object to

      the admission or exclusion of that evidence at trial. Perez v. Bakel, 862 N.E.2d

      289, 295 (Ind. Ct. App. 2007) (footnote added). “Failure to object at trial . . .

      results in waiver of the error.” Id. at 296 (quoting Weinberg v. Geary, 686 N.E.2d

      1298, 1300 (Ind. Ct. App. 1997), reh’g denied, trans. denied). When testimony is

      excluded, a party must make an offer to prove “to preserve for appeal the trial

      court’s allegedly erroneous exclusion of evidence.” Bradford v. State, 675

      N.E.2d 296, 302 (Ind. 1996), reh’g denied. During trial, Respondent did not

      mention the trial court’s grant of the motion to quash, nor did she make an offer

      to prove indicating what Dunk would have testified. Thus, her argument is



      1
        Both parties appeared pro se before the trial court. It is well settled that pro se litigants are held to the same
      standards as licensed attorneys and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338,
      344 (Ind. Ct. App. 2004), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018                        Page 5 of 9
      waived. See Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008) (when there

      is “no showing what the anticipated evidence would have been,” an argument

      for admission of evidence is precluded on appeal).


                     Order Striking Motion to Produce Evidence
[8]   “A trial court is accorded broad discretion in ruling on issues of discovery.”

      State v. Pelley, 828 N.E.2d 915, 923 (Ind. 2005). Consequently, our review is

      limited to determining whether the trial court abused its discretion. In re

      Witham Mem’l Hosp., 706 N.E.2d 1087, 1090 (Ind. Ct. App. 1999). An abuse of

      discretion occurs when the trial court reaches a conclusion that is against the

      logical inferences to be drawn from the facts of the case. Id. We presume the

      trial court decided correctly, and the party challenging its decision has the

      burden on appeal of demonstrating error. Pelley, 828 N.E.2d at 923.


[9]   On July 31, 2017, Respondent filed a motion to produce evidence, requesting

      Petitioner “disclose, and in the case of a tangible item, . . . produce for

      examination, inspection and copying” a list of items such as witnesses,

      documents, recorded statements, and electronic surveillance allegedly relevant

      to the case. (App. Vol. II at 16.) Respondent included with the motion a draft

      order, granting her request. On August 1, 2017, the trial court issued as its

      Order a revised version of Respondent’s draft order. As revised, the order

      states: “The Court strikes Respondent’s Motion to Produce Evidence. No

      request for discovery shall be filed with the Court except in accordance with

      Trial Rule 5(E)(2).” (Id. at 18.)


      Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018   Page 6 of 9
[10]   Respondent argues the trial court abused its discretion when it struck her

       motion to produce evidence because the Indiana Trial Rules do not allow a trial

       court to strike a document from the record without motion of a party.

       However, Respondent did not present this issue before the trial court by way of

       objection at trial, and thus it is waived. See Perez, 862 N.E.2d at 295 (allegation

       of error in trial court’s decision regarding a pre-trial motion must be presented

       to the trial court by way of objection during trial; if not, alleged error is waived

       from appellate consideration).


                                       Sufficiency of Evidence
[11]   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.


[12]   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




       Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018   Page 7 of 9
                 (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).

       Respondent argues Petitioner did present sufficient evidence that Petitioner

       committed stalking.


[13]   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. Petitioner presented evidence of at least two

       incidents involving the parties that caused Petitioner to feel “upset,” (Tr. Vol. II

       at 10); “rattled,” (id. at 12); “shocked,” (id. at 24); and “shooken [sic] up.” (Id.

       at 35.)


[14]   Starting around June 10, 2017, after being asked not to contact Petitioner,

       Respondent sent multiple text messages to Petitioner and Petitioner’s daughter.

       On June 13, 2017, Respondent came to Petitioner’s house and, while there,

       Respondent was “irate” (id. at 24), “screaming and hollering,” (id.), and

       “carrying on.” (Id.) As a result, Petitioner called the police. We conclude

       Petitioner’s testimony constituted sufficient evidence Respondent stalked
       Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018   Page 8 of 9
       Petitioner as defined by Indiana law. 2 See 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 could be inferred

       from her testimony).



                                                  Conclusion
[15]   Respondent’s failure to object at trial to the quashing of her subpoena or the

       striking of her motion to produce evidence, along with her failure to provide an

       offer of proof about what evidence would have been produced, renders those

       evidentiary issues unavailable for appeal. Petitioner presented sufficient

       evidence to prove Respondent stalked her. Accordingly, we affirm.


[16]   Affirmed.


       Riley, J., and Mathias, J., concur.




       2
        Respondent’s brief directs our attention to times when Petitioner or her daughter initiated contact with
       Respondent, while omitting reference to the incidents and testimony that supported the trial court’s decision.
       Such argument is an invitation for us to reweigh the evidence, which we cannot do. See Tisdial, 925 N.E.2d
       at 785 (appellate court cannot reweigh evidence or judge the credibility of witnesses when evaluating the
       sufficiency of the evidence to support a protective order).

       Court of Appeals of Indiana | Memorandum Decision 12A05-1710-PO-2356 | May 4, 2018                 Page 9 of 9
