      MEMORANDUM DECISION
                                                                                FILED
      Pursuant to Ind. Appellate Rule 65(D), this                           Jul 22 2016, 9:42 am
      Memorandum Decision shall not be regarded as
                                                                                CLERK
      precedent or cited before any court except for the                    Indiana Supreme Court
                                                                               Court of Appeals
      purpose of establishing the defense of res judicata,                       and Tax Court
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT
      Nicholas J. Hursh
      Shambaugh, Kast, Beck & Williams, LLP
      Fort Wayne, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael Moore,                                            July 22, 2016

      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                02A03-1601-PO-109

              v.                                                Appeal from the Allen Circuit Court
                                                                The Hon. Thomas J. Felts, Judge
      Brittney Baker,                                           The Hon. Andrea R. Trevino,
                                                                Magistrate
      Appellee-Petitioner.
                                                                Trial Court Cause No. 02C01-1507-
                                                                PO-1982




      Bradford, Judge.



                                            Case Summary
[1]   Appellant-Respondent Michael Moore and Appellee-Petitioner Brittney Baker

      were involved in a romantic relationship and had a child together, who was

      nineteen months old in July of 2015. Moore and Baker’s relationship ended

      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016           Page 1 of 8
      when Baker was still pregnant with their child. Sometime in 2014, Moore came

      to Baker’s house, and, claiming to be a police officer, banged on windows

      around the house, breaking one, as Baker hid in the bathroom with their son.

      On July 8, 2015, Moore came to Baker’s workplace after being told he was not

      welcome and followed Baker around for twenty to thirty minutes, swearing at

      her, “getting in her face,” and “storming” around. Baker again hid in the

      bathroom while a coworker called police.


[2]   On July 8, 2015, Baker requested and received an ex parte order for protection

      against Moore. Following a hearing in which Moore participated, the trial

      court issued an order for protection against Moore. Moore contends that the

      record contains insufficient evidence to sustain the trial court’s order for

      protection. Because we disagree, we affirm.



                            Facts and Procedural History
[3]   Moore and Baker were romantically involved and have a son together. Moore

      and Baker ended their relationship when Baker was seven months pregnant,

      and, as of July 2015, their son was nineteen months old. At some point in

      2014, Moore came to the house Baker was renting and began pounding on the

      door, saying, “Open up! This is the cops.” Tr. p. 19. When Baker locked

      herself and her son in the bathroom, Moore began going around the house

      banging on all of the windows, breaking one. According to Baker, Moore came

      over because she was not responding to his text messages.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016   Page 2 of 8
[4]   In the two to three months prior to July of 2015, Moore became “very

      aggressive … with the texting and stalking[,]” requesting to see his son more

      often. Tr. p. 12. If Baker did not immediately respond to Moore’s inquiries

      about their son or requests to see him, he would “just keep calling, 20 times in a

      row, or texting [Baker] non-stop.” Tr. p. 12. If Baker did not answer Moore

      right away, “he would start calling [her] names and just saying really nasty

      things.” Tr. p. 12. Moore also threatened to come to wherever Baker was at

      the time, something he did several times.


[5]   On July 8, 2015, Baker was working at Merle Norman Cosmetics when Moore

      sent her a text message indicating that he was coming to see her. Although

      Baker responded that Moore was not allowed at her workplace, Moore

      indicated that he was coming nevertheless. Moore, accompanied by his eleven-

      year-old son from a previous relationship, arrived when Baker was on the

      telephone with a customer and began following her around and “getting in [her]

      face[.]” Tr. p. 8. Moore was “storming around [and] just cussing in front of a

      client[.]” Tr. p. 8. Baker asked Moore to leave at least five times to no avail,

      and she finally locked herself in the bathroom while the owner of the store

      called police. Moore had been in the store for twenty to thirty minutes. After

      leaving, Moore took his son to Baker’s step-grandmother’s house and began

      banging on the door.


[6]   Also on July 8, 2015, Baker filed for an ex parte order for protection against

      Moore, which the trial court granted. On July 14, 2015, the trial court

      transferred the order for protection matter to Allen Circuit Court for further

      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016   Page 3 of 8
      proceedings consistent with cause number 02C01-1507-JP-518, the paternity

      case involving Baker and Moore’s son. On August 12 and 14, 2015, the trial

      court held an evidentiary hearing on the requested order for protection. On

      September 29, 2015, the trial court entered an order for protection, finding and

      ordering that


              f.       [Moore] presents a credible threat to the safety of [Baker]
                       or a member of [Baker’s] household.
              g.       [Baker] has shown, by a preponderance of the evidence,
                       that domestic or family violence, a sex offense, or stalking
                       has occurred sufficiently to justify the issuance of this
                       Order.
              ….
              1.       [Moore] is hereby enjoined from threatening to commit or
                       committing acts of domestic or family violence, stalking,
                       or sex offenses against [Baker.]
              2.       [Moore] is prohibited from harassing, annoying,
                       telephoning, contacting, or directly or indirectly
                       communicating with [Baker].
              ….
              THIS ORDER FOR PROTECTION EXPIRES:
              ON THE 29th DAY OF September, 2017.
      Order pp. 2-3.
                                 Discussion and Decision
[7]   Moore contends that Baker presented insufficient evidence to sustain the order

      of protection issued by the trial court. Initially, we note Baker did not file an

      Appellee’s Brief. When the appellee fails to file a brief, we need not undertake

      the burden of developing an argument for the appellee. Trinity Homes, LLC v.

      Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial

      court’s judgment if the appellant presents a case of prima facie error. Id.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016   Page 4 of 8
       “Prima facie error in this context is defined as, at first sight, on first appearance,

       or on the face of it.” Id. (quotation omitted). Where an appellant does not

       meet this burden, we will affirm. Id.


[8]    In reviewing the sufficiency of the evidence to support an order for protection,

       we neither reweigh the evidence nor judge the credibility of witnesses. A.S. v.

       T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010). We consider only the

       probative evidence and reasonable inferences supporting the trial court’s

       judgment. Id.


[9]    Baker requested and the trial court entered its order under the Civil Protection

       Order Act (“CPOA”), codified at Indiana Code chapter 34-26-5. Under the

       CPOA,

               [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 (2) person who has committed stalking
               under [Indiana Code section] 35-45-10-5 or a sex offense under
               [Indiana Code chapter] 35-42-4 against the petitioner.


       Ind. Code § 34-26-5-2(a).


[10]   The trial court may issue or modify an order for protection only upon a finding

       “that domestic or family violence has occurred.” Ind. Code §§ 34-26-5-9(a), (f).

       The definition of “domestic or family violence” for this purpose also includes

       stalking as defined in Indiana Code section 35-45-10-1 or a sex offense,

       “whether or not the stalking or sex offense is committed by a family or

       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016   Page 5 of 8
       household member.” Ind. Code § 34-6-2-34.5. Thus, the CPOA authorizes

       issuance of an order for protection only where a petitioner shows violence by a

       family or household member, stalking, or a sex offense has occurred. See

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

       Baker’s petition for an order for protection alleged she was a victim of stalking,

       and the trial court’s order so found.


[11]   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. “Harassment” in turn 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” is contact that

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

       the victim.” Ind. Code § 35-45-10-3. “[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.


[12]   We conclude that the record here supports a finding of stalking. Baker

       presented evidence that Moore came to where she was located (or where he

       apparently believed her to be located) several times, including the separate

       incidents at her rented home, her step-grandmother’s home, and her workplace,

       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016   Page 6 of 8
       from which Moore had already been told he was banned. This evidence is

       sufficient to establish an intentional course of conduct involving repeated or

       continuing harassment of Baker.


[13]   Moreover, the record contains evidence that Baker felt terrorized, frightened,

       intimidated, or threatened by Moore’s actions. Baker locked herself in the

       bathroom at her rented home and her workplace when Moore pursued her

       there, indicating that she, in fact, felt terrorized, frightened, intimidated, and/or

       threatened. At her rented home, Moore falsely identified himself as a police

       officer and banged on windows all over the house with sufficient force to break

       one of them. At Merle Norman, Moore began following Baker around and

       “getting in [her] face[.]” Tr. p. 8. Moore was “storming around [and] just

       cussing in front of a client[.]” Tr. p. 8. Moore was in the store for twenty to

       thirty minutes. We have little trouble concluding that a reasonable person

       would feel terrorized, frightened, intimidated, and/or threatened by Moore’s

       aggressive and violent behavior.


[14]   Moore contends that Baker’s actions in allowing him parenting time with their

       son undermines any claim that she felt threatened by his actions. Baker,

       however, testified that she was seeking the order of protection for her safety and

       did not believe that Moore would harm their son. Moore’s argument is nothing




       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016   Page 7 of 8
       more than an invitation to reweigh the evidence, which we will not do.1 Moore

       has failed to carry his burden to show that the order for protection is not

       supported by sufficient evidence.


[15]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




       1
         Moore also argues, without citation to authority, that the trial court abused its discretion in admitting
       certain text messages he sent to Baker in May and/or June of 2015. We need not address Moore’s argument,
       however, as the record contains sufficient evidence to sustain the trial court’s order without considering the
       text messages.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1601-PO-109 | July 22, 2016                Page 8 of 8
