MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Apr 15 2020, 7:04 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                         ATTORNEYS FOR APPELLEE
Ian T. Keeler                                                  David L. Guevara
Clapp Ferrucci                                                 James R. A. Dawson
Indianapolis, Indiana                                          Taft Stettinius & Hollister LLP
                                                               Indianapolis, Indiana


                                               IN THE
     COURT OF APPEALS OF INDIANA

Marylinda Gossweiler, 1                                        April 15, 2020
Appellant-Petitioner,                                          Court of Appeals Case No.
                                                               19A-PO-2524
         v.                                                    Appeal from the Boone Superior
                                                               Court
Swati Singh,                                                   The Honorable Matthew Kincaid,
Appellee-Respondent                                            Judge
                                                               Trial Court Cause No.
                                                               06D01-1908-PO-1172



May, Judge.




1
 18 U.S.C. § 2265(d)(3) applies only to parties who have received an order for protection; because
Gossweiler is not a party “protected under” a protective order, initials need not be used. See Costello v.
Zollman, 51 N.E.3d 361, 362 n.1 (Ind. Ct. App. 2016), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020                       Page 1 of 13
[1]   Marylinda Gossweiler appeals the trial court’s denial of her petition for an

      order for protection. She argues the evidence leads unerringly and

      unmistakably to a decision opposite that reached by the trial court. We affirm.



                            Facts and Procedural History
[2]   At all relevant times, Gossweiler primarily lived in Colorado. She served as the

      managing agent of Vosetat LLC and managed property in Indiana, including a

      property commonly known as 3511 Willow Road in Zionsville (“Gossweiler

      Property”). Swati Singh and her husband lived on a property abutting the

      Gossweiler Property, commonly known as 3680 Willow Road (“Singh

      Property”).


[3]   The Gossweiler Property was encumbered by an easement. A private road ran

      along the easement on the Gossweiler Property near the property line dividing

      the Gossweiler Property from the Singh Property. The prior owners of the

      Singh Property erected a gate on the private road in order to prohibit

      unauthorized vehicle access. The gate required a code in order to open.

      Gossweiler was attempting to sell the Gossweiler Property in early 2019, but

      she did not have the code to open the gate. Therefore, she had her realtor

      attempt to contact Singh’s realtor to get the code, but the effort was

      unsuccessful. Gossweiler attempted to contact Singh’s realtor herself, but she

      was also unsuccessful. So, Gossweiler decided to contact Singh and her

      husband directly. Gosseiler had never met or spoken with Singh and her

      husband before, but she found their contact information on the internet.

      Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 2 of 13
[4]   Gossweiler called the dental practice owned by Singh and her husband three

      times on June 11, 2019, and she left at least two messages. That evening, Singh

      called Gossweiler and left a voicemail on her phone:


              Hi, uh, we have been warned by the prior owners and other
              people in the area that, um, you are a lunatic and you happen to
              do this every time the house sells, so you looked us up and called
              our office today three times, and you were being ridiculous, and
              saying that you have an emergency. Don’t ever do that again,
              don’t call our office, don’t tell us that you have an emergency.
              For all we care you can go to hell. Ok. Don’t ever try to reach
              out to us. You’re a creep. If you ever step foot on our property
              at 3680 N. Willow Road we will call the police. And we do keep
              guns, and I do shoot. So I will shoot you if you ever step on my
              property. Don’t ever call us. Don’t ever come to us.


      (Plaintiff’s Ex. 7.) Upon hearing the message, Gossweiler felt “sick.” (Tr. Vol.

      II at 19.) She initially contacted the Denver Colorado Police Department, and

      then she contacted the Zionsville Police. The Zionsville Police composed an

      incident report.


[5]   On June 21, 2019, Gossweiler’s attorney sent a letter to Singh stating that

      Vosetat LLC “demands that you immediately and permanently remove the

      gate and do nothing to restrict my client and its agents, invitees, licensees,

      and contractors from accessing its Properties pursuant to the terms of the

      Driveway Agreement.” (Plaintiff’s Ex. 9) (emphasis in original). Singh’s

      counsel provided the gate code to Gossweiler’s counsel.




      Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 3 of 13
[6]   In August 2019, Gossweiler visited the Gossweiler Property, and she noticed

      her Property adjoining the private drive was “razed.” (Tr. Vol. II at 24.) Singh

      and her husband had hired a contractor to clear the brush on the Singh Property

      near the private drive. On the contractor’s own initiative, he cut down foliage

      on Gossweiler’s property. Mulberry bushes and other plants had been cut along

      approximately 400 yards of the drive. Gossweiler did not want this vegetation

      removed because she wished to maintain natural growth on the Gossweiler

      Property in order to preserve the “ambiance of the land.” Id. Gossweiler

      contacted the Zionsville Police again, and the Police completed another

      incident report.


[7]   Gossweiler returned to the Gossweiler Property days later with Yvette Lynn

      from Altum’s Landscaping in order to assess the damage. Singh noticed

      Gossweiler and Lynn walking along the private drive. Singh went out onto her

      porch and yelled at Gossweiler and Lynn to identify themselves. Neither

      Gossweiler nor Lynn did so, and Singh walked to a distance of about thirty to

      forty feet away from them. Singh then paralleled their movements along the

      drive and videotaped them. Gossweiler returned to the Gossweiler Property

      with her insurance adjuster a couple of days later, and Singh watched from her

      house as Gossweiler and the insurance adjuster walked along the private drive.


[8]   On August 9, 2019, Gossweiler filed a petition for protection order.

      Gossweiler’s petition alleged Singh “[t]hreatened to shoot [her] with a gun.

      Destroyed 400 yards of [her] property. Yells at [her] when she sees [her].

      Video records [her] & guests without permission.” (App. Vol. II at 6.) Singh

      Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 4 of 13
      also filed a petition for protection order under a separate cause number. The

      trial court held a consolidated hearing on both petitions on September 6, 2019.

      The trial court denied Singh’s petition during the hearing, and the court took

      Gossweiler’s petition under advisement. On October 1, 2019, the trial court

      issued an order denying Gossweiler’s petition.



                                 Discussion and Decision
[9]   The Indiana Civil Protection Order Act (“CPOA”) provides, “A person who is

      or has been subjected to harassment may file a petition for an order for

      protection against a person who has committed repeated acts of harassment

      against the petitioner.” Ind. Code § 34-26-5-2(b). Harassment, as defined in the

      criminal statutes outlawing stalking, is “conduct directed toward a victim that

      includes but is not limited to repeated or continuing impermissible conduct 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. The

      conduct must present “a credible threat to the safety of a petitioner or a member

      of a petitioner’s household.” Ind. Code § 34-26-5-9(g). “Repeated” means

      “more than once.” Johnson v. State, 721 N.E.2d 327, 332-33 (Ind. Ct. App.

      1999), trans. denied. Prior to July 1, 2019, “impermissible conduct” was defined

      as including, but not being limited to, “knowingly or intentionally following or

      pursuing the victim.” Ind. Code § 35-45-10-3 (1993). Effective July 1, 2019, the

      definition of impermissible conduct was clarified to explicitly include following

      or pursuing the victim; communicating with the victim in writing, by telephone,


      Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 5 of 13
       or through electronic means; or posting on social media. Ind. Code § 35-45-10-

       3 (2019).


[10]   The CPOA and like statutes are meant “to prohibit actions and behavior that

       cross the lines of civility and safety in the workplace, at home, and in the

       community.” Torres v. Ind. Family & Social Services Admin., 905 N.E.2d 24, 30

       (Ind. Ct. App. 2009). We construe the CPOA “to promote the protection and

       safety of all victims of harassment in a fair, prompt, and effective manner.”

       Ind. Code § 34-26-5-1. The petitioner for an order for protection bears the

       burden of proof and must prove entitlement to the order by a preponderance of

       the evidence. Costello v. Zollman, 51 N.E.3d 361, 367 (Ind. Ct. App. 2016), trans.

       denied. A trial court has discretion to grant protective relief pursuant to the

       CPOA. Id.


[11]   We neither reweigh the evidence nor judge the credibility of the witnesses. Id.

       “We consider only the evidence of probative value and reasonable inferences

       that support the judgment.” Id. We will reverse the denial of a petition for an

       order of protection “only if we are convinced that the evidence as a whole leads

       unerringly and unmistakably to a decision opposite that reached by the trial

       court.” Id. Gossweiler argues the record does not contain sufficient evidence to

       sustain the trial court’s judgment. She contends Singh’s voicemail, the

       destruction of vegetation on her property, Singh’s actions when Gossweiler

       visited the Gossweiler Property, and Singh’s withholding of the gate code from

       Gossweiler were all acts of harassment.



       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 6 of 13
                                           1. Voicemail Message
[12]   Gossweiler argues Singh’s voicemail message constitutes an act of harassment.

       Gossweiler likens her case to Smith v. State, 802 N.E.2d 948 (Ind. Ct. App.

       2004). In Smith, the defendant told Allen County Police Officer Adams that

       “he would be ‘looking out for him with his 7.62,’ referring to the ammunition

       used in an assault rifle.” Id. at 950 (internal citation omitted). The defendant

       then left several voicemail messages for Officer Adams and another police

       officer, and the State charged him with stalking. Id. We first held that a

       stalking conviction could be based on phone calls alone. Id. at 954. We then

       held that the jury could have reasonably inferred from the content of the

       defendant’s messages that more than one message the defendant left for Officer

       Adams was threatening and the messages constituted impermissible conduct.

       Id. at 954-55. Gossweiler believes Singh’s voicemail was equivalent to the

       threats the defendant made in Smith. Gossweiler testified the voicemail caused

       her distress. She repeatedly characterized Singh’s voicemail as a “threat on

       [her] life.” (Tr. Vol. II at 28-29.)


[13]   However, the case at bar differs from Smith because Singh left one voicemail

       rather than the several that Smith left for Officer Adams. Also, Singh did not

       initiate the contact between herself and Gossweiler. We have observed that

       “stalking requires some evidence that the actor is the one looking for the

       victim.” Tisdial v. Young, 925 N.E.2d 783, 786 (Ind. Ct. App. 2010) (holding

       error to grant protective order when the person seeking the order for protection

       initiated each encounter).

       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 7 of 13
[14]   While Singh’s voicemail could certainly be considered unneighborly and

       insulting, the core message of the voicemail was Singh’s desire to stay away

       from Gossweiler and to have Gossweiler stay away from her. There is no

       evidence Singh sought out contact with Gossweiler. Rather, she left the

       voicemail for Gossweiler when she returned Gossweiler’s call. Additionally,

       while Singh’s husband kept a gun in the house, Singh testified that she had

       never fired a gun and did not own a gun. The judge could have reasonably

       inferred Singh’s reference to shooting Gossweiler if she stepped on Singh’s

       property did not represent a credible threat. See Maurer v. Cobb-Maurer, 994

       N.E.2d 753, 759 (Ind. Ct. App. 2013) (holding ex-husband’s e-mails and texts

       to ex-wife would not cause a reasonable person to feel terrorized, frightened,

       intimidated, or threatened).


                                        2. Removal of Vegetation
[15]   The second alleged act of harassment concerns the destruction of vegetation on

       the Gossweiler Property abutting the easement. A person can threaten or

       intimidate another by destroying property. See Mysliwy v. Mysliwy, 953 N.E.2d

       1072, 1077 (Ind. Ct. App. 2011) (holding ex-husband’s acts of causing extensive

       damage to ex-wife’s home and clothes constituted domestic violence sufficient

       to enter order for protection), trans. denied. Gossweiler testified that she felt

       “[s]ick” upon seeing the removed brush, and she saw it as an “act of

       aggression.” (Tr. Vol. II at 27.)


[16]   However, “the fact finder is best positioned to judge the credibility of [the]

       witnesses, is free to credit or discredit testimony, and weigh conflicting
       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 8 of 13
       evidence.” Tharp v. State, 942 N.E.2d 814, 816 (Ind. 2011). Here, Singh

       testified that she did not direct her landscaper to remove the vegetation. The

       landscaper did so on his own initiative. During the hearing, the trial court

       stated that the incident with “the brush is not harassment. It may have been

       improper, it may have been unlawful, it may have been trespass, it may be

       negligence, it is not harassment.” (Tr. Vol. II at 124.) Singh’s testimony

       supports the trial court’s finding. See Costello, 51 N.E.3d at 367 (holding

       evidence did not lead unerringly and unmistakably to a decision opposite that

       of the trial court because the respondent’s testimony supported trial court’s

       decision).


                3. Gossweiler’s Visits with Landscaper and Insurance
                                        Adjuster
[17]   Gossweiler’s third and fourth allegations of harassment concern when Singh

       watched her during her visits to the Gossweiler Property. Gossweiler argues

       Singh’s actions of asking Gossweiler and Lynn to identify themselves, following

       them as they walked along the private road, and videotaping them amount to

       stalking. She contends Singh’s behavior was equivalent to the behavior of the

       defendant in the case of Sandleben v. State, 29 N.E.3d 126 (Ind. Ct. App. 2015).

       In Sandleben, the defendant followed a thirteen-year-old girl around a Target

       store and surreptitiously videotaped her. Id. at 130. Approximately nine

       months later, the defendant followed and videotaped the thirteen-year-old girl

       again as she and her family shopped in a Michaels store. Id. at 131. He would

       sometimes get as close as arms-length to the girl, and he did not appear to be

       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 9 of 13
       shopping. Id. at 131-32. We held the State presented sufficient evidence to

       sustain the defendant’s conviction for stalking because he intentionally followed

       the young girl, making the young girl feel threatened. Id. at 132.


[18]   We deem the comparison to Sandleben inapposite. A stranger following a

       young girl around two stores while not shopping at either store raises the

       specter that the stranger may kidnap or sexually abuse the young girl. The

       same danger is simply not present when a neighbor who remains on her own

       property follows, videotapes, and asks people walking along the edge of her

       property to identify themselves. Gossweiler’s argument is another request for

       us to reweigh the evidence, which we will not do. See Andrews v. Ivie, 956

       N.E.2d 720, 723-24 (Ind. Ct. App. 2011) (refusing appellant’s requests to

       reweigh the evidence).


[19]   Gossweiler also argues Singh’s act of watching Gossweiler and her insurance

       adjuster as they walked along the Gossweiler Property was an incident of

       harassment. Gossweiler testified that she thought Singh videotaped her and the

       insurance adjuster while they were walking along the Gossweiler Property.

       Singh testified she remained in her house while Gossweiler and the insurance

       adjuster toured the property and that, while she did watch them, she did not

       videotape them. Nonetheless, even if Singh videotaped Gossweiler and the

       insurance adjuster, such action does not unerringly and unmistakably amount

       to harassment. See Sandelben, 29 N.E.3d at 133 (“First, it was not Sandleben’s

       act of videotaping that formed the basis for the stalking charge that he claims



       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 10 of 13
       unconstitutionally restricted his right to speak. Rather, his intentional, repeated

       acts of harassing A.S. by following her were the basis for the stalking charge.”).


                                                  4. Gate Code
[20]   On appeal, Gossweiler alleges Singh’s months-long delay in providing her with

       the gate code constituted a fifth act of harassment. However, withholding a

       gate code does not present “a credible threat to the safety of a petitioner or a

       member of a petitioner’s household.” Ind. Code § 34-26-5-9(g). Further, it is

       not impermissible contact because it does not involve directing communications

       toward someone or following someone. See Ind. Code § 35-45-10-3. We

       interpret an unambiguous statute according to the plain and obvious meaning

       of the words in the statute. Datzek v. State, 838 N.E.2d 1149, 1155 (Ind. Ct.

       App. 2005) reh’g denied, trans. denied. Here, the statutes are unambiguous, and

       their plain language indicates that the delay in Singh giving Gossweiler the gate

       access code does not amount to an act of harassment.


[21]   At the conclusion of the hearing, the trial court stated:


               So, from the bench I am going to order that [Singh] cause to be
               provided to [Gossweiler] at all times the access code to the gate.
               That is an order from the bench here. I am going to take the
               remainder of this issue under advisement as to whether or not a
               protective order should be issued.


       (Tr. Vol. II at 154.) Gossweiler encourages us to remand the case because the

       trial court’s written order did not incorporate the order from the bench that

       Singh always keep Gossweiler apprised of the gate code. Similarly, Singh

       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 11 of 13
       argues the case should be remanded with instructions for the trial court to

       vacate the above order from the bench.


[22]   However, we find remand unnecessary. The CPOA gives the trial court

       authority to fashion relief when granting an order for protection, but it does not

       give the trial court authority to both grant relief to a petitioner and deny the

       petition. Ind. Code § 34-26-5-9(d) (“A court may grant the following relief . . .

       in an order for protection or in a modification of an order for protection . . .”);

       Ind. Code § 34-26-5-9(g) (“Upon a showing of domestic or family violence or

       harassment 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.”).

       But here, there is a seeming conflict between the court’s order from the bench

       and the written order denying Gossweiler’s petition for an order for protection.


[23]   When a trial court’s written and oral orders conflict, we try to discern the trial

       court’s intent. See Walker v. State, 932 N.E.2d 733, 738 (Ind. Ct. App. 2010)

       (“When oral and written sentencing statements conflict, we examine them

       together to discern the intent of the sentencing court.”), reh’g denied. The trial

       court determined that Gossweiler did not meet the statutory requirements for

       issuance of an order for protection. (See App. Vol. II at 5) (“The Petitioner has

       not shown, by a preponderance of the evidence, that harassment has occurred

       sufficient to justify the issuance of an Order for Protection.”). Therefore, the

       court’s intention was not to grant Gossweiler relief. The trial court’s directive

       that Singh keep Gossweiler apprised of the gate access code was a suggestion

       rather than an enforceable order of the court. See Dowell v. State, 873 N.E.2d 59,

       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020   Page 12 of 13
       (Ind. 2007) (holding defendant was to serve sentence announced in written

       order even though it conflicted with oral sentencing statement). 2



                                               Conclusion
[24]   The evidence supports the trial court’s determination that Gossweiler failed to

       prove harassment by a preponderance of the evidence. The trial court could

       reasonably conclude that Singh’s voicemail did not pose a credible threat. Also,

       the record supports the inference that Singh’s conduct while Gossweiler visited

       the Gossweiler Property with her landscaper and with her insurance adjuster

       was the action of a vigilant neighbor rather than harassment. Additionally, the

       destruction of plants on Gossweiler’s property was done by an independent

       contractor and not at Singh’s direction. Gossweiler’s allegation regarding

       Singh’s failure to disclose the gate code does not qualify as harassment pursuant

       to the plain language of the governing statutes. Therefore, we affirm the trial

       court.


[25]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       2
        Nonetheless, we trust there will not be an issue in the future with Singh providing Gossweiler with the
       gate access code because Singh avers in her brief that she “has no problem” providing the code to
       Gossweiler. (Appellee’s Br. at 15.)


       Court of Appeals of Indiana | Memorandum Decision 19A-PO-2524 | April 15, 2020             Page 13 of 13
