MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Feb 21 2019, 6:18 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
Mark K. Leeman
Leeman Law Offices
Logansport, Indiana



                                            IN THE
      COURT OF APPEALS OF INDIANA

M.R.,                                                    February 21, 2019
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         18A-PO-2156
        v.                                               Appeal from the Cass Superior Court
                                                         The Honorable James Muehlhausen,
B.C.,                                                    Judge
Appellee-Petitioner                                      Trial Court Cause No.
                                                         09D01-1806-PO-54



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019                  Page 1 of 11
                                             Case Summary
[1]   M.R. appeals the trial court’s entry of a protective order sought by B.C. He

      challenges the sufficiency of the evidence to support the issuance of the

      protective order, and he also asserts that the trial court abused its discretion in

      admitting certain hearsay evidence during the hearing. Finding the evidence

      sufficient and that any error in the admission of evidence was harmless, we

      affirm.


                                 Facts and Procedural History
[2]   B.C. and M.R. began dating and started cohabiting in 2004. In 2011, a court

      granted B.C. de facto custody of her two-year-old granddaughter, L.M. B.C.,

      L.M., and M.R. lived together as a family for several years. Although L.M.

      was not related to M.R., she still referred to him as “grandpa.” Tr. Vol. 2 at 16.

      B.C. and M.R. started experiencing relationship troubles, and sometime in

      2017, B.C. moved out of the home, taking L.M. with her. The parties

      reconciled briefly in early 2018, and B.C. and L.M. moved back in with M.R.

      However, in May 2018, B.C. decided the relationship was over. She

      subsequently removed all her belongings from the home, and she and L.M.

      moved out. B.C. wished to have no more contact with M.R. and asked him to

      “leave [her] alone.” Id. at 6. B.C. got married to another man in July 2018.

      This resulted in a lot of “animosity” between the former couple. Id. at 30.


[3]   Thereafter, M.R. attended several of L.M.’s softball games despite B.C.’s

      requests that he not do so. M.R. often spoke to or made inappropriate


      Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 2 of 11
      comments to B.C., her husband, and L.M. This made B.C. upset. One time

      M.R. was driving by in his truck after the game, and B.C. heard him say

      something directed to nine-year-old L.M. about B.C. sleeping with multiple

      men. Id. at 8. On another occasion, M.R. waited in his truck for B.C. to leave

      the ballpark, and then he followed her car through town. On yet another

      occasion he approached B.C. and L.M. in the concession line. B.C. asked to be

      left alone, but M.R. followed them as they walked. B.C. felt unsafe, so she

      asked a male friend, who also happens to be a police officer, to escort her and

      L.M. to their car. Id. at 9. M.R. still followed and then stood behind B.C.’s car

      until the officer had to ask him to step out of the way so B.C. could leave. This

      caused a “very uncomfortable situation.” Id. at 9.


[4]   During this same period of time, M.R. mailed letters to B.C.’s home and place

      of employment, and he also called B.C. at work on one or two occasions to

      express his anger about the fact that she left him and married another man.

      M.R. called B.C.’s friends and several members of her family to talk about

      B.C., and he additionally called Child Protective Services on B.C.


[5]   On June 14, 2018, B.C. filed a petition for a protective order against M.R.

      alleging that M.R. had committed stalking. Following a hearing held on

      August 10, 2018, the trial court entered its order granting B.C.’s request for a

      protective order. Specifically, the order provides:


              1. [M.R] is hereby enjoined from threatening to commit or
              committing acts of domestic or family violence, stalking, or sex



      Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 3 of 11
              offenses against [B.C.] and the following designated family or
              household members, if any;


              2. [M.R.] is prohibited from harassing, annoying, telephoning,
              contacting, or directly or indirectly communicating with [B.C.],
              except: [M.R.] is allowed to visit child, [L.M.], at the ballpark.
              [M.R.] is allowed to visit the same church, The Church of the
              Nazarene, but will have no communication with [B.C.].


      Appealed Order at 2. This appeal ensued.


                                     Discussion and Decision
[6]   We begin by noting that B.C. has not filed an appellee’s brief. When an

      appellee fails to submit a brief, we do not undertake the burden of developing

      arguments for the appellee, and we apply a less stringent standard of review.

      Jenkins v. Jenkins, 17 N.E.3d 350, 351 (Ind. Ct. App. 2014). Thus, we may

      reverse if the appellant establishes prima facie error, which is error at first sight,

      on first appearance, or on the face of it. Id. at 351-52. This rule relieves us of

      the burden of controverting arguments advanced in favor of reversal where that

      burden properly rests with the appellee. Id. at 352. In any event, we are still

      obligated to correctly apply the law to the facts in the record in order to

      determine whether reversal is required. Id.


[7]   Pursuant to the Indiana Civil Protection Order Act (“CPOA”), “[a] person who

      is or has been a victim of domestic or family violence may file a petition for an

      order for protection[.]” Ind. Code § 34-26-5-2(a). A finding that domestic

      violence has occurred sufficient to justify the issuance of a protective order


      Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 4 of 11
       means that a respondent represents a credible threat to the safety of a petitioner

       or a member of the petitioner’s household. Ind. Code § 34-26-5-9(f). The

       definition of “domestic or family violence” includes stalking as defined in

       Indiana Code Section 35-45-10-1. Ind. Code § 34-6-2-34.5


[8]    To obtain an order of protection, the petitioner must establish at least one of the

       allegations in the petition by a preponderance of the evidence. A.S. v. T.H., 920

       N.E.2d 803, 806 (Ind. Ct. App. 2010). The CPOA authorizes issuance of an

       order for protection where a petitioner shows stalking occurred, regardless of

       whether the stalker is a stranger, or a family or household member of the

       victim. Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1161-62 (Ind. Ct. App. 2003)

       (citing Ind. Code § 34-6-4-34.5).


            Section 1 – Sufficient evidence supports the trial court’s
                         issuance of a protective order.
[9]    M.R. asserts that the evidence was insufficient to support the trial court’s grant

       of B.C.’s request for a protective order. When considering the sufficiency of the

       evidence supporting a decision to issue a protective order, we do not reweigh

       the evidence or judge the credibility of witnesses. A.G. v. P.G., 974 N.E.2d 598,

       598 (Ind. Ct. App. 2012). We look only to the evidence of probative value and

       reasonable inferences that support the trial court’s judgment. Id.


[10]   Here, B.C. was required to establish, by a preponderance of the evidence, that

       M.R. committed stalking. “Stalking” is defined in relevant part as “a knowing

       or intentional course of conduct involving repeated or continuing harassment of


       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 5 of 11
       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.

       “[H]arassment” 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 emotion distress.” Ind. Code § 35-45-10-2. “[T]he term

       ‘repeated’ in Indiana’s anti-stalking law means ‘more than once.’” Johnson v.

       State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999), trans. denied (2000).


[11]   B.C. testified, and M.R. admitted that, on multiple occasions after the parties

       ended their relationship, he attended nine-year-old L.M.’s softball games

       despite B.C.’s requests that he not do so. B.C. stated that each time, M.R.

       engaged in behavior that made B.C. feel “upset” and “uncomfortable.” Tr.

       Vol. 2 at 7. One time he made an inappropriate sexual comment about B.C. to

       L.M. Another time, M.R. waited in his truck for B.C. to leave the ballpark and

       then followed her car through town. Yet another time, M.R. confronted B.C.

       in line at the concession stand and then started following her as she walked to

       her car. As a result, B.C. felt unsafe and was compelled to ask a police officer

       friend for help. B.C. also testified that M.R. mailed multiple angry letters to her

       home and place of employment, telephoned her at work on two occasions, and

       contacted her family and friends. B.C. stated that M.R. simply refused to

       “leave [her] alone[,]” and she felt “threatened because [M.R.] has shown anger”

       toward her. Id. at 9, 37.


       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 6 of 11
[12]   B.C.’s testimony is sufficient to establish by a preponderance of the evidence

       that M.R. engaged in a knowing or intentional course of conduct involving

       repeated or continuing harassment of B.C. that would cause a reasonable

       person to feel terrorized, frightened, intimidated, or threatened and that actually

       caused B.C. to feel terrorized, frightened, intimidated, or threatened. The trial

       court heard the testimony and observed witness demeanor; M.R.’s arguments

       on appeal are merely requests for us to reweigh the evidence and reassess

       witness credibility, and we cannot. We agree with the trial court that, although

       M.R.’s behavior was not overly “egregious,” id. at 42, B.C. presented sufficient

       evidence of stalking to support the issuance of a protective order. M.R. has not

       established prima facie error.


              Section 2 – Any error in the admission of evidence was
                                     harmless.
[13]   M.R. maintains that the trial court abused its discretion in admitting certain

       hearsay evidence during the hearing.1 Specifically, he argues that, over his

       objections, the trial court improperly allowed B.C. to testify regarding

       statements made by L.M. about how L.M. felt about M.R.2 Our standard of

       review of a trial court’s admission of evidence is an abuse of discretion. In re

       Des.B., 2 N.E.3d 828, 834 (Ind. Ct. App. 2014). An abuse of discretion occurs if




       1
        Hearsay is defined as “a statement that: (1) is not made by the declarant while testifying at the trial or
       hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c).
       2
        We note that B.C. appeared pro se at the hearing, and the trial court, in its discretion, allowed her
       considerable procedural leeway in the presentation of her case.

       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019                    Page 7 of 11
       the trial court’s decision is clearly against the logic and effect of the facts and

       circumstances before the court. Id. However, it is well established that errors in

       the admission of evidence are to be disregarded as harmless error unless they

       affect the substantial rights of a party. Id. “To determine whether the

       admission of evidence affected a party’s substantial rights, we assess the

       probable impact of the evidence upon the finder of fact.” Id.


[14]   Upon review of the record, we conclude that any error in the admission of the

       hearsay evidence in question was harmless. In issuing the protective order, the

       trial court focused on M.R.’s harassment of B.C., and how that caused her to

       feel intimidated and threatened. The trial court made it abundantly clear that

       the order is intended to protect B.C., and not L.M., from M.R. Indeed,

       although the order prohibits M.R. from contacting or communicating with

       B.C., the language of the order permits M.R. some contact with L.M.

       Accordingly, we are confident that B.C.’s testimony regarding L.M.’s

       statements did not impact the trial court’s decision to issue the protective order

       in this case, and therefore, any erroneous admission of evidence did not affect

       M.R.’s substantial rights. The trial court’s protective order is affirmed.


[15]   Affirmed.


       Vaidik, C.J., concurs.


       Mathias, J., concurs in result with opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 8 of 11
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       M.R.,                                                    Court of Appeals Case No.
                                                                18A-PO-2156
       Appellant-Defendant,

               v.

       B.C.,
       Appellee-Petitioner.




       Mathias, Judge, concurring in result.


[16]   I concur with the result in this case but write separately to comment on the

       admissibility of hearsay in civil protection order proceedings.


[17]   First, I observe that due to serious and immediate concerns for his or her safety,

       a petitioner may request an ex parte order of protection. See Ind. Code § 34-26-5-

       9(f). Petitioners are also frequently unrepresented by counsel. For these reasons,

       we may reasonably assume that in ex parte proceedings courts frequently rely on

       hearsay to determine whether an ex parte protective order should be issued.

       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019     Page 9 of 11
[18]   In addition, petitions for civil orders of protection may be heard in any court of

       record, including small claims courts.3 See Ind. Code § 34-26-5-4. The rules of

       evidence generally do not apply to proceedings in small claims courts. Our

       court has specifically held that hearsay is admissible in protection order

       proceedings adjudicated in small claims court, and that the small claims court’s

       judgment may be supported solely by hearsay evidence. See Rzeszutek et al. v.

       Beck, 649 N.E.2d 673, 681 (Ind. Ct. App. 1995), trans. denied (concluding that a

       protective order entered by small claims court could be based solely on hearsay

       evidence). See also Matusky v. Sheffield Square Apartments, 654 N.E.2d 740, 742

       (Ind. 1995); Hitchens v. Collection Specialists, Inc., 5 N.E.3d 418, 423 (Ind. Ct.

       App. 2014) (reaffirming the principle that hearsay is admissible in small claims

       proceedings).


[19]   However, where the petition for the protective order is filed in superior or

       circuit court, as is the case here, our court has held that a trial court errs when it

       grants a petition for an order of protection based on the petitioner’s hearsay

       statements.4 See Barger v. Barger, 887 N.E.2d 990, 993–94 (Ind. Ct. App. 2008).

       The Barger court also noted the “significant ramifications of an improperly

       granted protective order” including that violating a protective order is

       “punishable by confinement in jail, prison, and/or a fine.” See id. (quoting Ind.




       3
        Until July 1, 2018, the Marion County Small Claims court was not a court of record. See Ind. Code § 33-34-
       1-3.
       4
        The Protection Order Deskbook instructs judges that the rules of evidence apply to protective order
       proceedings. Protection Order Deskbook, Indiana Judicial Center, p. 4-7 (Nov. 2010).

       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019               Page 10 of 11
       Code § 34-26-5-3)). It is notable that in rural counties, only superior and circuit

       courts are available for protective order petitions, whether or not the respective

       court(s) choose to hear them on their small claims dockets.


[20]   In sum, hearsay may support the trial court’s adjudication of a petition for an ex

       parte order of protection in general, and on a petition for a permanent order of

       protection when the petition is filed in small claims court. However, a party

       who files his or her petition in superior or circuit court must proceed under a

       different and more complex evidentiary standard. One evidentiary standard

       should apply in all protective order proceedings regardless of the judicial forum.

       I therefore urge our supreme court to address this inconsistency through a

       modification of applicable rules.




       Court of Appeals of Indiana | Memorandum Decision 18A-PO-2156| February 21, 2019   Page 11 of 11
