                                                                        FILED
                                                                   Aug 19 2016, 8:07 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT
Glen E. Koch II
Boren, Oliver & Coffey, LLP
Martinsville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joshua Perry Cruse,                                        August 19, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           41A01-1512-PO-2345
        v.                                                 Appeal from the Johnson Circuit
                                                           Court
C.C.,                                                      The Honorable K. Mark Loyd,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           41C01-1506-PO-331



Baker, Judge.




Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016                  Page 1 of 12
[1]   Joshua Cruse appeals the protective order entered by the trial court preventing

      him from having contact with his ex-wife, C.C., except to communicate

      regarding their children. Cruse argues there is insufficient evidence supporting

      the protective order. We agree, and reverse.


[2]   In June 2015, Cruse and C.C. were divorced. They have three children

      together. After several incidents involving verbal disagreements between the

      parents in front of or near the children, C.C. filed a petition for a protective

      order on June 18, 2015. She did not seek to prevent Cruse from having contact

      with the children, seeking only to limit the contact he was permitted to have

      with her. The trial court granted an ex parte protective order the same day.

      Following a November 24, 2015, hearing, the trial court reaffirmed the

      protective order, which prohibited Cruse from communicating with C.C. except

      on parenting time issues. Any communication regarding parenting time was

      ordered to be done in writing or through their parenting coordinator. Cruse

      now appeals.


[3]   Initially, we note that C.C. has not filed an appellee’s brief. We need not

      develop an argument on her behalf, and may reverse if Cruse is able to establish

      prima facie error—error on the face of the order being appealed. Evans v.

      Thomas, 976 N.E.2d 125, 126 (Ind. Ct. App. 2012).


[4]   A person who has been a victim of “domestic or family violence” may file a

      petition for a protective order. Ind. Code § 34-26-5-2. “Domestic or family

      violence” is defined as follows:


      Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 2 of 12
        the occurrence of at least one (1) of the following acts committed
        by a family or household member:


                 (1)      Attempting to cause, threatening to cause, or
                          causing physical harm to another family or
                          household member.


                 (2)      Placing a family or household member in fear of
                          physical harm.


                 (3)      Causing a family or household member to
                          involuntarily engage in sexual activity by force,
                          threat of force, or duress.


                 (4)      Beating (as described in IC 35-46-3-0.5(2)), torturing
                          (as described in IC 35-46-3-0.5(5)), mutilating (as
                          described in IC 35-46-3-0.5(3)), or killing a
                          vertebrate animal without justification with the
                          intent to threaten, intimidate, coerce, harass, or
                          terrorize a family or household member.


        For purposes of IC 34-26-5, domestic and family violence also
        includes stalking (as defined in IC 35-45-10-1) or a sex offense
        under IC 35-42-4, whether or not the stalking or sex offense is
        committed by a family or household member.


Ind. Code § 34-6-2-34.5. “Stalk” means “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. “Harassment” means

“conduct directed toward a victim that includes but is not limited to repeated or
Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016     Page 3 of 12
      continuing impermissible contact that would cause a reasonable person to suffer

      emotional distress and that actually causes the victim to suffer emotional

      distress.” I.C. § 35-45-10-2.


[5]   In this case, C.C. testified as follows regarding her petition for a protective

      order:


           Cruse attended their son’s kindergarten graduation and told C.C. “he
            would make a scene right there in front of everyone.” Tr. p. 8. He
            followed C.C. “out into the parking lot telling the kids that . . . I was
            keeping them from him.” Id. at 9. As a result, C.C. felt “intimidated.”
            Id.
           Another time, Cruse went to the school where C.C. works and the
            children go to school and “pulled [C.C.] out of my class room and said
            that he needed to talk to me then and there and made my boss feel
            uncomfortable with him being in there.” Id.
           More than once, he went to the school to have lunch with the children
            and stayed “for an extended amount of time” with the children after
            school employees asked him to leave. Id. He made “the kids’ teachers
            uncomfortable as well.” Id.
           On one occasion, Cruse attended their son’s baseball game. C.C. was
            there with a male colleague. C.C. overheard Cruse tell his uncle that she
            and the colleague “were probably banging[.]” Id. at 10. After the game,
            Cruse “[g]ot up in this gentleman’s face and told him that he better not
            come around our kids again and [the colleague] felt threatened enough
            that he left.” Id.
           In general, when Cruse “comes to events with the kids he tends to want
            to take them away from me, even whenever I tell him not to. And that is
            why I would prefer that he doesn’t come around . . . I don’t feel that him
            taking them at a sporting event away from me and he won’t listen to me,
            is appropriate.” Id.




      Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 4 of 12
      There is no evidence that Cruse attempted to, threatened to, or did cause any

      acts of physical harm. There is no evidence that he placed C.C. in fear of

      physical harm.


[6]   The dissent places great emphasis on the fact that Cruse was “holding a

      baseball bat” during the incident that occurred after the baseball game. Dissent

      para. 5. Indeed, the dissent states that, our “rationale insulates perpetrators of

      domestic violence from protective orders so long as those perpetrators are

      mindful to expressly threaten only friends or associates of former partners while

      in the presence of their former partners even while in the presence of their

      former partners or even while holding a potential weapon.” Id. at para. 10. We

      believe that this interpretation of our analysis goes several steps too far.


[7]   When C.C. testified, she did not even mention the fact that Cruse was holding a

      baseball bat during this incident. Tr. p. 9-10. Instead, the only evidence she

      presented regarding this incident was that Cruse mentioned that C.C. and her

      companion “were probably banging” and that Cruse then “got up in this

      gentleman’s face and told him that he better not come around our kids again

      and he felt threatened enough that he left.” Id. at 10. Cruse’s testimony is the

      only evidence in the record regarding the bat during this incident. And he

      testified that, after his son’s game, he retrieved his son’s bat, which Cruse had

      purchased for him as a birthday present, so that they could later play baseball

      together. Id. at 16. Cruse acknowledged that he was carrying the bat when he

      argued with C.C. and her companion, but denied that he carried it in a

      threatening way, testifying that he “had it down by my knee the whole time. I

      Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016     Page 5 of 12
      never, ever moved it.” Id. at 17. Eventually, C.C. took the bat from him and

      looked like she was angry. Id. As the only evidence in the record regarding the

      bat establishes that Cruse was holding it in a non-threatening manner, and C.C.

      did not even mention the bat, we strongly disagree with the dissent that this

      suffices to establish that Cruse attempted or threatened to cause physical harm

      to anyone. We certainly do not believe that this holding in any way “insulates

      perpetrators of domestic violence.”


[8]   The only possible basis for the protective order that remains, therefore, is a

      conclusion that Cruse’s actions constituted stalking. We find insufficient

      evidence that C.C. was actually terrorized, frightened, intimidated, or

      threatened. Although she did comment that at one point she felt intimidated,

      most of her concerns were based upon the way other people were reacting to

      Cruse. She was not frightened, she merely “preferred” that Cruse not be

      around when she was with the children. We also find insufficient evidence that

      Cruse’s course of conduct would cause a reasonable person to feel terrorized,

      frightened, intimidated, or threatened.


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


      Vaidik, C.J., concurs.
      Najam, J., dissents with separate opinion.




      Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 6 of 12
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Joshua Perry Cruse                                         Court of Appeals Case No.
                                                                  41A01-1512-PO-2345
       Appellant-Defendant,

               v.

       C.C.,
       Appellee-Plaintiff.




       Najam, Judge, dissenting.


[10]   I respectfully dissent. C.C. presented sufficient evidence to show that the Order

       of Protection was warranted because Cruse had placed C.C. in fear of physical

       harm and also had committed stalking. In particular, the evidence and the

       reasonable inferences from the evidence show that Cruse engaged in

       threatening behavior directed at C.C. and repeatedly harassed C.C. such that

       she reasonably and actually felt intimidated by his conduct. While the majority

       is correct that some of C.C.’s testimony referred to Cruse’s conduct towards her




       Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016             Page 7 of 12
       friends and colleagues, C.C. was present for each of the incidents, and a

       reasonable fact-finder could conclude that Cruse’s conduct was directed at her.


[11]   In determining the sufficiency of the evidence on appeal, we neither reweigh the

       evidence nor resolve questions of witness credibility. A.S., 920 N.E.2d at 806.

       We look only to the evidence of probative value and reasonable inferences

       therefrom that support the trial court’s judgment. Id. And, because C.C. did

       not file an appellee’s brief, the prima facie error rule applies. E.g., Maurer v.

       Cobb-Maurer, 994 N.E.2d 753, 755 (Ind. Ct. App. 2013).


[12]   As noted by the majority, a protective order may be issued to protect a family or

       household member who has been placed in fear of physical harm by another

       family or household member. I.C. § 34-6-2-34.5. A protective order may also

       be issued to protect a person from 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.” I.C. § 35-45-10-1. And

       “harassment” means “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.” I.C. § 35-45-10-2.




       Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 8 of 12
[13]   In her verified petition, C.C. alleged that she was a victim of domestic violence

       and stalking. Appellant’s App. at 5.1 And C.C. described three incidents that,

       she alleged, supported the issuance of the Ex Parte Order. 2 At the hearing, both

       C.C. and Cruse testified regarding each of those three incidents, and C.C.

       testified about other reasons she had sought a protective order.


[14]   One of those incidents occurred at a baseball game, where Cruse threatened a

       male friend of C.C.’s while holding a baseball bat. The majority discounts the

       significance of Cruse’s conduct during that incident on the ground that “the

       only evidence in the record regarding the bat establishes that Cruse was holding

       it in a non-threatening manner, and C.C. did not even mention the bat” in her

       testimony. Slip op. at 6. But a reasonable fact-finder could discredit Cruse’s

       testimony and conclude from the totality of the evidence that Cruse had acted

       in a threatening manner when he verbally confronted and warned C.C.’s male

       friend while holding a bat.


[15]   During her testimony, C.C. stated that Cruse “[g]ot up in [her male friend’s]

       face and told him that he better not come around our kids again,” and that this

       caused her friend to “fe[el] threatened enough that he left.” Tr. at 10. In

       response to that testimony, Cruse acknowledged that he was holding a bat




       1
           In its Ex Parte Order of Protection, the trial court listed the children as protected persons.
       2
         To be sure, the trial court did not admit the petition into evidence during the evidentiary hearing. It is
       mentioned here simply to place the testimony of the parties during that hearing concerning the three
       incidents in context.

       Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016                           Page 9 of 12
       when he “start[ed] to speak to the friend.” Id. at 17. Cruse also acknowledged

       that his uncle “tr[ied] to take the bat” away from Cruse during the

       confrontation, and that C.C. eventually did “take it.” Id.


[16]   Thus, it is undisputed that Cruse confronted C.C.’s male friend. It is

       undisputed that Cruse held a baseball bat when he did so. And it is undisputed

       that Cruse’s uncle attempted to, and then C.C. did, take the bat away from

       Cruse during that confrontation. The only dispute is the degree to which Cruse

       may have threatened the male friend. C.C. testified that Cruse did; Cruse

       testified that he did not. And one reasonable inference from the attempts to

       take the bat away from Cruse during the confrontation is that people felt

       threatened by Cruse’s possession of the bat when coupled with Cruse’s

       behavior. The trial court credited the evidence that demonstrated that Cruse

       had engaged in threatening behavior, as it was the court’s prerogative to do.


[17]   Moreover, that Cruse had behaved in a threatening manner towards C.C.’s

       friend while holding a bat is the only conclusion that considers the evidence

       most favorable to the trial court’s judgment, whether under our prima facie

       error standard of review or otherwise. See Maurer, 994 N.E.2d at 755. Indeed,

       the majority’s reliance on the prima facie error rule to support its holding is

       misplaced. The prima facie error rule does not speak to our independent review

       of the record. And that standard of review is not a license for this court to

       reweigh the evidence or judge the credibility of witnesses on appeal. See, e.g.,

       Farmer v. Spradlin (In re B.N.C.), 822 N.E.2d 616, 619 (Ind. Ct. App. 2005)

       (citing Slaton v. State, 510 N.E.2d 1343, 1347 (Ind. 1987)).

       Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 10 of 12
[18]   Rather, the prima facie error rule exists to relieve this court from “the burden of

       developing arguments for the appellee.” Murfitt v. Murfitt, 809 N.E.2d 332, 333

       (Ind. Ct. App. 2004). But I do not speculate as to what C.C.’s argument on

       appeal might have been. I have merely reviewed the record on appeal in the

       light most favorable to the trial court’s judgment, as we must. See A.S., 920

       N.E.2d at 806. The prima facie error rule is not a rule that exists “to benefit the

       appellant,” with whom the burden of persuasion on appeal remains in the face

       of a presumptively valid trial court judgment. See State v. Moriarity, 832 N.E.2d

       555, 558 (Ind. Ct. App. 2005).


[19]   Again, the evidence most favorable to the trial court’s judgment demonstrates

       that Cruse was holding a baseball bat while he threatened a man whom he

       accused to be C.C.’s sexual partner in C.C.’s presence and in the presence of the

       children. That evidence supports a reasonable inference that Cruse placed

       C.C., a family or household member, in fear of physical harm even though

       Cruse did not explicitly aim his conduct at C.C. See I.C. § 34-6-2-34.5(2). To

       hold to the contrary insulates perpetrators of domestic violence from protective

       orders so long as those perpetrators are mindful to expressly threaten only

       friends or associates of former partners even while in the presence of their

       former partners or even while holding a potential weapon. On the basis of this

       incident alone, the trial court’s entry of the Protective Order should be affirmed.

       See id.


[20]   The evidence also independently supports the trial court’s judgment under

       Indiana Code Section 35-45-10-1 because a reasonable fact-finder could

       Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 11 of 12
       conclude that Cruse stalked C.C. In addition to the incident at the baseball

       game, C.C. testified that Cruse came to C.C.’s place of employment and made

       her work colleagues feel “uncomfortable.” Tr. at 8. C.C. was also present at

       the time when someone at C.C.’s workplace called the police to have Cruse

       removed from the school premises. In light of those facts at her workplace and

       the incident at the baseball game, a reasonable fact-finder could conclude that

       Cruse committed stalking when he repeatedly harassed C.C. from which she

       reasonably and actually felt threatened and suffered emotional distress. See I.C.

       § 35-45-10-1.


[21]   We cannot judge the credibility of the witnesses from a cold record. Having

       heard the testimony and observed the demeanor of the witnesses, the trial court

       has concluded that Cruse’s behavior is not merely unpleasant and unreasonable

       but that C.C. actually feels threatened by his behavior. While C.C. was not

       represented by counsel at trial, she made her case, and the trial court believed

       her. And, in this civil action, her burden of proof was by a preponderance of

       the evidence. See A.S., 920 N.E.2d at 806.


[22]   C.C. proved that Cruse deliberately initiated three aggressive encounters with

       her, and Cruse’s conduct is symptomatic of controlling behavior, which is a

       form of domestic violence. Considering the evidence most favorable to the trial

       court’s judgment, I would hold that the trial court did not commit reversible

       error when it concluded that C.C. had carried her burden of proof by a

       preponderance of the evidence and issued an Order of Protection for C.C. and

       her children.

       Court of Appeals of Indiana | Opinion 41A01-1512-PO-2345 | August 19, 2016   Page 12 of 12
