Opinion
24A-PO-1211
11-21-2024
G.C., Appellant-Defendant v. C.B., Appellee-Plaintiff
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, IN
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Boone Circuit Court The Honorable Lori N. Schein, Judge Trial Court Cause No. 06C01-2403-PO-380
ATTORNEY FOR APPELLANT
Riley L. Parr
Lebanon, IN
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] G.C. appeals from the trial court's order for protection against him in favor of C.B. On appeal, G.C. argues that there was insufficient evidence to support the issuance of the order for protection, the order for protection inappropriately restricted him, and the trial court improperly considered certain evidence in making its findings. Because we disagree with each of these contentions, we affirm.
Facts and Procedural History
[¶2] In October of 2022, G.C. entered into a diversion agreement for charges relating to trespass on his neighbor C.B.'s Zionsville property. The charges related to allegations that G.C. had been throwing items, including dead animals, onto C.B.'s property. The criminal matter against G.C. was dismissed in April of 2023, when he successfully completed the diversion program.
[¶3] Shortly after the criminal case was dismissed in April of 2023, G.C. began playing loud music, mowing his lawn at nighttime, and shining the lawnmower's lights at C.B.'s residence. G.C. also continued to throw dead animals onto C.B.'s property. On July 7, 2023, G.C. petitioned for an order for protection alleging that he was the victim of repeated harassment by C.B., and, after hearing evidence related to that petition, the trial court dismissed G.C.'s petition.
[¶4] Between July 15, 2023, and March 5, 2024, law enforcement was called to G.C.'s house on at least four separate occasions for reports of loud music. On March 7, 2024, C.B. petitioned for an order for protection alleging that he had been the victim of repeated harassment by G.C. A hearing was held on April 15, 2024, and at the conclusion of the hearing, the trial court took the matter under advisement and provided the parties an opportunity to resolve their issues without court intervention. The parties were unable to do so, and ultimately, the trial court entered an order for protection on April 24, 2024, which it amended with additional findings and terms two days later. In issuing an order for protection, the trial court found that C.B. had met his burden on proving that the harassment alleged was sufficient to justify the order.
[¶5] Specifically, the trial court ordered, in addition to the general provisions of the order for protection, additional relief which prohibited G.C. from the following: playing his radio outside, except from noon until 6:00 p.m.; playing his radio unless he is home and outside; mowing his yard outside of daylight hours; shining light towards C.B.'s residence; throwing items, "including animals (alive or dead), sticks, trash, etc.," onto C.B.'s property; engaging with and specifically feeding C.B.'s dogs; and "removing, transferring, injuring, concealing, harming, attacking, mistreating, threatening to harm, or otherwise disposing of" C.B.'s dogs. Appellant's App. Vol. II pp. 78, 81-82. The order for protection expires on April 24, 2026.
Discussion and Decision
I. Standard of Review
[¶6] Initially, we observe that C.B. has failed to file an appellee's brief. We will not develop an argument on his behalf, and we will reverse the trial court's decision upon G.C.'s showing of prima facie error. Barger v. Barger, 887 N.E.2d 990, 992 (Ind.Ct.App. 2008). Prima facie error, in this context, means "'at first sight, on first appearance, or on the face of it.'" Id. (quoting Cox v. Cantrell, 866 N.E.2d 798, 810 (Ind.Ct.App. 2007), trans. denied).
[¶7] When reviewing the issuance of an order for protection on appeal, we apply a two-tiered standard, considering "whether the evidence supports the court's findings, and, if so, whether those findings support the judgment." S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023). "We neither reweigh the evidence nor determine the credibility of witnesses, and we consider only the evidence favorable to the trial court's decision." Id.
II. Indiana Civil Protection Order Act
[¶8] Under the Indiana Civil Protection Order Act ("CPOA"), "[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 is "conduct directed toward a victim that includes, but is not limited to, repeated or continuing impermissible contact: (1) that would cause a reasonable person to suffer emotional distress; and (2) that actually causes the victim to suffer emotional distress." Ind. Code § 34-6-2-51.5(a). "Harassment" does not include "statutorily or constitutionally protected activity[.]" Ind. Code § 34-6-2-51.5.
[¶9] In order to justify the issuance of an order for protection, the harassment must objectively include a present and credible threat. S.H. v. D.W., 139 N.E.3d 214, 220 (Ind. 2020). A credible threat is "plausible or believable." Id. The burden is on the petitioner to show, by a preponderance of the evidence, "that there are reasonable grounds to believe that the respondent presently intends to harm the petitioner or the petitioner's family." Id.
[¶10] G.C. contends that the evidence presented at the hearing was insufficient to prove that his behavior represents a credible threat to C.B. or a member of C.B.'s family. Specifically, G.C. contends that the order for protection was not justified, even assuming that C.B.'s allegations were true, and that G.C.'s alleged actions are "significantly less troublesome" than those in Tisdial v. Young, 925 N.E.2d 783 (Ind.Ct.App. 2010). Appellant's Br. p. 9. In Tisdial, we reversed an order for protection where the evidence showed that both parties, unrelated to each other, participated in two fights occurring approximately three months apart, in a public park, and there was no evidence to support the contention that the respondent had been stalking the petitioner; in fact, the petitioner had verbally initiated each encounter. Id. at 785-86.
[¶11] The nature of C.B.'s allegations differ from the behavior at issue in Tisdial. For instance, the alleged incidents at issue in this case occurred more than twice and were therefore not as sporadic as those in Tisdial. Rather than alleging that G.C. had committed acts twice on public property, C.B. alleged, and the trial court found, that G.C. had committed repeated acts on or near C.B.'s property. The alleged incidents were not the first instance of problems between G.C. and C.B., as they had started (or restarted) after the prior diversion period had ended. C.B. and C.B.'s partner both testified that G.C. plays constant, loud music; mows his lawn in the middle of the night; shines the lawnmower's lights toward C.B.'s house; and, despite being previously warned not to do so, continues to throw dead animals onto C.B.'s property. C.B. also testified that G.C. had falsely alleged to the police that he had tried to hit G.C. with his car, at a time when he had not been in town.
G.C. claims that C.B. has admitted that the "light-shining has not happened in some time." Appellant's Br. p. 7. However, C.B. testified that, although G.C. had redirected a light from directly shining on C.B.'s house, G.C. had begun to mow his lawn at night with the lights from his lawnmower directed at C.B.'s house.
To the extent that G.C. denies throwing dead animals onto C.B.'s property, the trial court specifically noted in its findings C.B.'s testimony that G.C. has buckets of water as animal traps to catch and drown small animals and C.B.'s partner's testimony that she had found "soaking wet" dead animals on C.B.'s property. Appellant's App. Vol. II p. 75. We will not reweigh this evidence. See S.D., 211 N.E.3d at 497.
[¶12] The above-described evidence was sufficient to support the trial court's finding that G.C. had engaged in repeated and continuous acts of inappropriate conduct toward C.B. which had fallen "far below acceptable standards of behavior." Appellant's App. Vol. II p. 77. Furthermore, based on the evidence before the trial court, we cannot say that the court erred in determining that G.C.'s actions had represented a credible threat to C.B. or a member of C.B.'s household. C.B. testified to his fear that he, his partner, or his dogs may be harmed by G.C.'s unacceptable conduct. Given the facts and circumstances of this case, especially given that G.C. had escalated his concerning behavior after his prior criminal case had been dismissed, we cannot say that such fear is unreasonable.
[¶13] G.C. additionally argues that the trial court's findings do not support the order because "no impermissible contact has occurred." Appellant's Br. p. 9. Specifically, G.C. contends that because he had not attempted to contact C.B., followed or threatened him, or come onto C.B.'s property, there had been no impermissible contact. We disagree. First, the definition of impermissible contact which G.C. cites is itself "nonexclusive." Ind. Code § 35-45-10-3(b). Moreover, as we have noted before, "harassment may be something other than impermissible contact." Fox v. Bonam, 45 N.E.3d 794, 799 (Ind.Ct.App. 2015). Again, the evidence established that G.C. had consistently left dead animals on C.B.'s lawn, played music loudly enough that C.B.'s partner could hear it from inside the house, mowed his lawn after dark, and shone his mower's lights at C.B.'s house at nighttime. G.C.'s argument that the trial court's findings were insufficient to establish harassment amounts to nothing more than an invitation to reweigh the evidence, which we will not do. See S.D., 211 N.E.3d at 497.
[¶14] G.C. also contends that the restrictions imposed on his playing of a radio were improper because C.B. had "presented no evidence that [G.C.] has ever been cited for any violation of the Boone County noise ordinance," and that C.B. had "admitted that some of the police calls occurred inside the noise ordinance parameters." Appellant's Br. p. 7. Specifically, G.C. relies on Fox, 45 N.E.3d 794, to support his argument that the trial court inappropriately penalized G.C. for engaging in allegedly-protected activities. In Fox, we agreed with the respondent that the trial court's order for protection, which prohibited him from doing yard work or creating noise using motorized tools until 8:30 a.m., was "excessive and inconsistent" with the neighborhood covenants which allowed residents to use motorized tools after 8:00 a.m. 45 N.E.3d at 803-04.
[¶15] The CPOA gives courts the discretion to "prohibit a respondent from harassing[ or] annoying _ a petitioner," and to order any "other relief necessary to provide for the safety and welfare of a petitioner[.]" Ind. Code § 34-26-5-9(c)(2), (c)(9), (d)(1). Here, C.B. testified that the loud music played by G.C. had started after G.C.'s criminal diversion case had been dismissed. The fact that a noise ordinance exists with certain restrictions simply does not give permission to harass one's neighbors within those restrictions. The trial court was well within its discretion under the CPOA when it ordered G.C. to refrain from playing his radio outside except from noon until 6:00 p.m.
G.C. also claims that he was improperly penalized for "constitutionally protected activity." Appellant's Br. p. 9. While it is true that "harassment" does not include "statutorily or constitutionally protected activity," Ind. Code § 34-6-2-51.5(b), G.C. cites no authority for the proposition that playing music loud enough for one's neighbors to hear it inside their own home is constitutionally protected. We reject this contention.
[¶16] Next, G.C. argues that it was improper for the trial court to consider police reports submitted by C.B. in crafting its additional findings after the hearing, claiming that the reports were hearsay, which had not been admitted into evidence or authenticated. However, at the hearing, G.C.'s counsel had directly asked C.B., "when you filed your Petition for Protective Order[,] you filed a huge stack of reports from the Sheriff's Department, correct?" to which C.B. had responded affirmatively. Tr. Vol. II p. 47. Thus, G.C.'s counsel knew that these reports had been filed by C.B. and undoubtedly knew that the court would consider the reports, which had been discussed multiple times during the hearing with no objection. This argument was therefore waived for appellate review. See, e.g., Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019) ("A party's failure to object to, and thus preserve, an alleged trial error results in waiver of that claim on appeal.").
The general rule is subject to a claim of fundamental error, which G.C. does not allege. See Batchelor, 119 N.E.3d at 556.
[¶17] Finally, G.C. suggests that the relief provided by the trial court was outside of the scope of the CPOA and that other relief would be more appropriate for C.B. The CPOA provides trial courts with discretion to order the relief "necessary to provide for the safety and welfare of a petitioner[.]" Ind. Code § 34-26-5-9(c)(9). The order for protection here did so. Further, our legislature has made it clear that "[a]n order for protection is in addition to, and not instead of, another available civil or criminal proceeding." Ind. Code § 34-26-5-6(1). The order for protection issued here was an appropriate method for C.B. to obtain relief from G.C.'s harassment.
[¶18] We affirm the judgment of the trial court.
Bailey, J., and Foley, J., concur.