M.S. v. C.B. (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                FILED
    regarded as precedent or cited before any                       Mar 29 2017, 10:23 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
    John A. Henry
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    M.S.,                                                   March 29, 2017
    Appellant-Respondent,                                   Court of Appeals Case No.
    29A05-1609-PO-2131
    v.                                              Appeal from the Hamilton
    Superior Court
    C.B.,                                                   The Honorable Gail Z. Bardach,
    Appellee-Petitioner                                     Judge
    Trial Court Cause No.
    29D06-1607-PO-6308
    Vaidik, Chief Judge.
    Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017     Page 1 of 6
    Case Summary
    [1]   This is an appeal from the issuance of a protective order that, among other
    things, prohibits the respondent from possessing firearms during the two-year
    term of the order. Indiana’s Civil Protection Order Act provides that a trial
    court issuing a protective order “may” include a firearm prohibition, but the
    trial court that issued the order in this case made comments suggesting that it
    included the prohibition because it mistakenly believed that it was required to
    do so. Therefore, while we affirm the trial court’s decision to issue a protective
    order, we reverse the imposition of the firearm prohibition and remand this
    matter for clarification regarding that provision.
    Facts and Procedural History
    [2]   In July 2016, C.B. filed a petition seeking a protective order against her ex-
    boyfriend, M.S., alleging that he had engaged in acts of “domestic or family
    violence.” The trial court issued an ex parte order and then, following a request
    by M.S., set the matter for a hearing. At the hearing, C.B. testified about
    several things that had happened during her relationship with M.S., including a
    conversation about whether M.S. would move out of their house. During the
    conversation, C.B. was sitting at a table, and M.S. “threw a chair” toward the
    table, coming “[w]ithin a few inches” of hitting C.B. Tr. pp. 20-21. C.B.
    acknowledged that the chair did not actually hit her but testified that M.S.
    exhibited “enough anger and violence to scare me.” 
    Id. at 22.
    Based on this
    act, the trial court found that the order “has a legal basis” and “will remain in
    Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 2 of 6
    effect as it was originally issued.” 
    Id. at 33.1
    The court continued, “And
    because [C.B.] and [M.S] resided together in an intimate relationship, I have to
    add to the order for protection a firearms prohibition.” 
    Id. Accordingly, the
    written order that took the place of the ex parte order includes a provision
    prohibiting M.S. “from using or possessing a firearm, ammunition, or deadly
    weapon” during the two-year term of the order (“firearm prohibition”).
    Appellant’s App. Vol. II p. 8.
    [3]   M.S. now appeals.
    Discussion and Decision
    [4]   M.S. contends that the trial court should not have issued the protective order
    and that, in the alternative, it should not have included the firearm prohibition
    in the order. Because C.B. has not filed an appellee’s brief, M.S. need only
    demonstrate prima facie error, that is, error “at first sight, on first appearance,
    or on the face of it.” Trinity Homes, LLC v. Fang, 
    848 N.E.2d 1065
    , 1068 (Ind.
    2006).
    1
    C.B. also testified that M.S. choked her during sex, and the trial court found that to be an additional act of
    violence justifying issuance of the protective order. M.S. disputes that finding, arguing that C.B. consented to
    the choking. Because we affirm the trial court’s finding regarding the throwing of the chair, and because one
    act of domestic or family violence is sufficient to justify a protective order, we need not address the choking
    issue.
    Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017                Page 3 of 6
    I. Issuance of Protective Order
    [5]   M.S. first argues that the trial court erred by issuing the protective order. We
    disagree. Indiana’s Civil Protection Order Act allows the issuance of a
    protective order when there has been “domestic or family violence,” Ind. Code
    § 34-26-5-9(a), which includes “[p]lacing a family or household member in fear
    of physical harm,” Ind. Code § 34-6-2-34.5. Here, C.B. testified that she was
    sitting at a table talking to M.S. about whether he would move out of their
    house, that M.S. threw a chair toward the table, that the chair came within a
    few inches of hitting her, and that she was scared as a result. This testimony
    was easily sufficient to justify the issuance of the protective order.
    II. Inclusion of Firearm Prohibition
    [6]   M.S. argues that even if we affirm the issuance of the protective order, we
    should reverse the trial court’s inclusion of the firearm prohibition in the order.
    He takes issue with the trial court’s conclusion that “because [C.B.] and [M.S.]
    resided together in an intimate relationship, I have to add to the order for
    protection a firearms prohibition.” Tr. p. 33 (emphasis added). M.S. asserts
    that this language indicates that the trial court was operating under the
    impression that it was required to impose the firearm prohibition because M.S.
    and C.B. had been in an intimate relationship and that this belief was mistaken.
    We agree.
    [7]   Presumably, the trial court based its conclusion on 18 U.S.C. § 922(g)(8),
    which, generally stated, provides that “[i]t shall be unlawful for any person”
    Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 4 of 6
    who is subject to an order protecting a current or former “intimate partner” to
    possess any firearm or ammunition. However, the fact that this federal criminal
    statute prohibits firearm possession by an individual like M.S. does not mean
    that a state trial court issuing a protective order is required to include the same
    prohibition in the order. Indeed, Indiana’s protective-order statute simply says
    that a trial court issuing such an order “may . . . [p]rohibit a respondent from
    using or possessing a firearm, ammunition, or a deadly weapon[.]” Ind. Code §
    34-26-5-9(c)(4) (emphasis added); see also 
    id. at (f).
    Because there is no clear
    indication in the record before us that the trial court would have included the
    firearm prohibition in the protective order but for its apparent belief that it was
    required to do so, we must reverse the imposition of the prohibition and
    remand this matter for reconsideration in light of the particular facts of this
    case.
    [8]   We recognize, especially in light of the federal statute, that chances are good
    that the trial court will leave the firearm prohibition intact on remand. Also, we
    assume that M.S. will abide by the federal statute and refrain from possessing
    firearms regardless of what the trial court does. At the same time, however, if
    the trial court were to omit the prohibition from the protective order, M.S.
    would be exposed to only federal criminal prosecution in the event that he
    chooses to possess a firearm, and not to additional state prosecution for
    violating the protective order (see Ind. Code § 35-46-1-15.1, invasion of privacy).
    Given this prospect, clarification of the issue by the trial court, in accordance
    with the discretionary nature of Section 34-26-5-9(c)(4), is appropriate.
    Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 5 of 6
    [9]   Affirmed in part, reversed in part, and remanded.
    Bradford, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 29A05-1609-PO-2131| March 29, 2017   Page 6 of 6
    

Document Info

Docket Number: 29A05-1609-PO-2131

Filed Date: 3/29/2017

Precedential Status: Precedential

Modified Date: 3/29/2017