S.H. v. D.W. ( 2020 )

FILED
Jan 31 2020, 2:08 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 19S-PO-118
S.H.,
Appellant,
–v–
D.W.,
Appellee.
Argued: April 11, 2019 | Decided: January 31, 2020
Appeal from the Bartholomew Superior Court I
No. 03D01-1802-PO-626
The Honorable James D. Worton, Judge
On Petition to Transfer from the Indiana Court of Appeals
Case No. 18A-PO-1413
Opinion by Justice Slaughter
Chief Justice Rush and Justice David concur.
Justice Goff dissents with separate opinion in which Justice Massa joins.
Slaughter, Justice.
Domestic violence accounts for more than one-fifth of all violent crime
in the United States, Bureau of Justice Statistics, Nonfatal Domestic Violence,
2003–2012, 1 (2014), and is widely recognized as a public-health crisis that
harms both the victim and those within the victim’s household. Children
exposed to domestic violence are more likely to suffer significant
psychological and developmental issues. And they are more likely, as
adults, to continue the cycle of violence by becoming either victims or
abusers themselves. UNICEF, Behind Closed Doors: The Impact of Domestic
Violence on Children, 7 (2006).
To protect victims and curb the vicious cycle of domestic violence, our
legislature enacted the Indiana Civil Protection Order Act. The Act
empowers those threatened with domestic violence to turn to the courts
for urgent relief against those who would carry out such threats. But the
Act is not one-sided. It balances the need to protect victims of domestic
violence against the interests of those against whom a protective order is
sought. Because of the potentially severe limitations on a restrained
person’s liberty, the petitioner must prove the respondent is a present,
credible threat to the petitioner or someone in the petitioner’s household.
Here, Respondent, S.H., consented to the trial court’s entry of an initial
two-year protective order against him. But he challenged the later request
of Petitioner, D.W., for another two-year protective order. Over S.H.’s
objection, the trial court issued the new order. On this record, we hold
there was insufficient evidence to support the court’s entry of another
two-year protective order and thus reverse its judgment and remand with
instructions.
Factual and Procedural History
In 2016, with divorce proceedings pending, D.W. sought an order for
protection against S.H., then her husband. In her petition, “Diane” (not her
real name) alleged that three days earlier, she returned to the marital
house in Bartholomew County where she once lived with “Sam” (also a
pseudonym). Believing Sam was away, Diane drove into the attached
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garage to collect some belongings. To her surprise, he was home. He
grabbed her neck, forced her from her car, and slammed her face into the
car door. She tried to escape, but he grabbed her shoulders and threw her
onto the concrete floor. She got to her feet and quickly entered the house.
But he followed her and threw a table and printer at her. Fearing for her
life, she called the police. Once the police arrived, the situation de-
escalated.
The day after Diane filed her petition, Sam sought his own order for
protection against her. Soon after that, the trial court held a hearing on
both petitions. At the hearing, Sam disputed the allegations of her petition
but did not object to the entry of a two-year protective order against him.
He voluntarily dismissed his own petition in exchange for Diane’s
agreeing to a restraining order against her in their separate dissolution-of-
marriage action. Under the parties’ agreement, the trial court entered a
two-year protective order against Sam and a restraining order against
Diane. The parties introduced no exhibits or testimony supporting either
the protective order or the restraining order.
After the trial court entered these orders, the parties went their separate
ways. They had no children together, and neither party had reason to be
involved in the other’s life. Although Sam occasionally visited some
relatives who still lived in the Columbus area, he had moved from
Bartholomew County to Chicago—more than two-hundred miles away—
and started a new relationship.
Fast forward two years to 2018. Just days before the 2016 protective
order was set to expire, Diane petitioned the trial court for another
protective order against Sam, alleging he had tried to contact her
indirectly through relatives’ social-media accounts. She claimed the initial
protective order “kept him away physically” and said she “would like
him to continue to stay away.” Initially, the trial court issued a protective
order against Sam without notice, in accord with the statute, and
scheduled a hearing where it would hear testimony from both parties.
At that hearing, Diane detailed her allegations of Sam’s attack from two
years earlier. She also recounted that since then Sam twice might have
tried to contact her indirectly through social media—once through his
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adult child to her; and once through his adult daughter-in-law to her. Both
social-media exchanges involved Sam’s relatives searching for toys that
had belonged to Sam’s son. The daughter-in-law explained she had a
three-year-old son of her own and thought it would be meaningful for her
son to play with the same toys her husband—Sam’s son—had played with
as a child. When Sam learned of this exchange, he told his daughter-in-
law not to contact Diane. Diane explained at the hearing that Sam’s
daughter-in-law was not a threat and was “one of the sweetest people”
she knew. After that first exchange, the daughter-in-law had no further
contact with Diane. Diane provided no additional facts to support the
other conversation she alleged between her adult child and Sam’s.
Diane believed these social-media exchanges could be Sam’s attempts
to find out where she lived. She told the trial court she continued to fear
for her physical well-being and sought an extension of the 2016 protective
order to ensure her “safety at least until [her] last child graduates [high
school].” She explained that she would not feel any different after a
second order expired in 2020. And she admitted that during the protective
order’s two-year term, Sam had not:
• violated the order;
• visited her residence;
• visited her place of employment; or
• contacted her directly.
After hearing the parties’ testimony, the trial court issued another two-
year protective order—through 2020—finding as follows:
1. That the testimony of the petitioner [Diane] was credible at
the time of the original issuance of the order and remains
credible today.
2. That respondent [Sam] continues to deny that any domestic
violence has ever occurred.
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3. The Court believes based on the totality of the circumstances
in this case that there still exist [sic] a current necessity to bring
about a cessation to a threat of violence.
After the trial court denied his motion to correct error, Sam appealed.
The court of appeals affirmed. Although acknowledging that “the
evidence presented by [Diane] was minimal”, the court held that she had
satisfied her burden. S.H. v. D.W., 114 N.E.3d 898, 900 (Ind. Ct. App. 2018),
trans. granted, 123 N.E.3d 143 (Ind. 2019). “This judge was in the optimal
position to determine the credibility of the parties and whether, under the
totality of the circumstances, there is a continuing threat of harm.” S.H.,
114 N.E.3d at 901. The appellate court based its conclusion on the
standard of review and the fact that the same trial judge had presided
over the 2016 protective order, the 2018 protective order, and the couple’s
divorce case. Id.
Sam then sought transfer, which we granted, thus vacating the
appellate decision.
Discussion and Decision
Applying the governing legal standard, we hold there was insufficient
evidence that Sam posed a present, credible threat to Diane to justify the
2018 protective order.
A. Substantive and procedural requirements of Civil
Protection Order Act
This is the first time we have considered the meaning and application
of Indiana’s Civil Protection Order Act. Enacted in 2002, the Act has the
express purpose of promoting the:
(1) protection and safety of all victims of domestic or family
violence in a fair, prompt, and effective manner; and
(2) prevention of future domestic and family violence.
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Ind. Code § 34-26-5-1 (2017). Aimed at combating the scourge of domestic
and family violence, the Act protects both past and present victims and
their children: “[A] person who is or has been a victim of domestic or
family violence may file a petition for an order of protection”. Id. § 34-26-
5-2(a).
Under the Act, a trial court has several, non-exclusive options for
affording the “relief necessary to provide for the safety and welfare of a
petitioner and each designated family or household member.” Id. § 34-26-
5-9(b)(8), 9(f). One option is to prohibit the respondent “from harassing,
annoying, telephoning, contacting,” or otherwise communicating with the
petitioner. Id. § 34-26-5-9(b)(2). Another option is to require the
respondent to surrender all firearms, ammunition, and deadly weapons to
a law-enforcement officer or agency. Id. § 34-26-5-9(f). The court can also
“[r]emove and exclude a respondent from the residence of a petitioner,
regardless of ownership of the residence.” Id. § 34-26-5-9(b)(3). And a
fourth option is to subject the respondent to constant supervision by
requiring that he be entered into a law-enforcement database and face
real-time GPS (global-positioning-system) tracking. Id. §§ 34-26-5-18(7),
34-26-5-9(i). These court-ordered measures may “impose significant
restrictions on a respondent’s freedom of movement and other rights”.
A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App. 2014). Thus, a court faced
with a request for protective order must balance, on the one hand, the
need to protect actual and threatened victims against, on the other, the
onerous burden borne by those erroneously subject to such an order.
Indeed, as our court of appeals has observed, “an improperly granted
protective order may pose a considerable threat to the respondent’s
liberty.” Barger v. Barger, 887 N.E.2d 990, 994 (Ind. Ct. App. 2008). For
example, under state law, violating a protective order is punishable by
confinement in jail, prison, or a fine, I.C. § 34-26-5-3(c), and subjects the
offender to criminal prosecution for criminal stalking and invasion of
privacy. Id. §§ 35-45-10-5 (criminal stalking), 35-46-1-15.1 (invasion of
privacy). And, under federal law, once a protective order has been entered
against the respondent, he may commit a crime if he buys, receives, or
possesses a firearm. Id. § 34-26-5-3(c) (citing 18 U.S.C. §§ 922(g), 2261,
2262).
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To safeguard victims and provide for the prompt resolution of claims,
the Act lays out a two-part procedure. First, a trial court may enter an
order for protection, either without notice or after notice and a hearing,
“[i]f it appears from a petition . . . that domestic or family violence has
occurred or that a modification of an order for protection is required.” Id.
§ 34-26-5-9(a). Second, if the trial court enters an order without notice, the
court must, under some circumstances, hold a hearing within thirty days
after service of the order. Id. § 34-26-5-10(a). The court must give these
hearings priority over other pending matters on its docket. Id. § 34-26-5-
10(b).
To obtain a protective order, the petitioner must show the respondent
“represents”—present tense—“a credible threat to the safety of a
petitioner or a member of a petitioner’s household.” Id. § 34-26-5-9(f).
Thus, the respondent must pose a threat to a protected person’s safety
when the petitioner seeks relief. If the petitioner meets this burden, “the
court shall grant relief necessary to bring about a cessation of the violence
or the threat of violence.” Id. See also Costello v. Zollman, 51 N.E.3d 362,
365 (Ind. Ct. App. 2016). Protective orders have presumptive two-year
terms. I.C. § 34-26-5-9(e).
In addition to focusing on the parties’ present situation, the Act
requires that the threat posed by the respondent be viewed objectively.
Not only must there be a present threat, but the threat must be credible—
meaning plausible or believable. Thus, the petitioner must prove, 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. By focusing on the parties’ present situation, the Act
not only allows courts to intervene as the parties’ circumstances warrant,
but also contemplates that the parties’ relationship can change over time.
Entering one protective order does not, by itself, justify entering a
second order—or renewing or extending the first order. True, the parties’
history is relevant. Indeed, the trial court’s extension of a protective order
“must be viewed in light of the continuing harm or the threat of
continuing harm that necessitated the issuance of the protective order in
the first instance.” J.K. v. T.C., 25 N.E.3d 179, 181 (Ind. Ct. App. 2015)
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(quoting A.N., 10 N.E.3d at 1272). But the existence of a prior order does
not dictate the outcome of a later dispute between the same parties. “The
fact that an order for protection is issued under this chapter does not raise
an inference or presumption in a subsequent case or hearings between the
parties.” Id. § 34-26-5-9(h). Thus, the circumstances leading to entry of a
prior order generally cannot be the sole basis for entering a new order or
renewing or extending the previous one.
We agree with much of the case law interpreting Section 9 that our
court of appeals has developed. The trial court should consider the factual
basis underlying an initial protective order when determining whether to
renew or extend an order or issue a new one. A.N., 10 N.E.3d at 1272.
“[A]ny such reissuance, renewal, or extension must be based upon
evidence that a protective order currently is ‘necessary to bring about a
cessation of the violence or the threat of violence’ because of a continuing
threat of harm.” J.K., 25 N.E.3d at 182 (emphasis in original). Whether a
prior domestic-violence incident is remote in time is also probative—
though not determinative—of whether a threat currently exists to justify
issuing a protective order. Tons v. Bley, 815 N.E.2d 508, 511 (Ind. Ct. App.
2004) (finding that unspecified violent acts occurring eight years earlier
were not a sufficient basis for issuing a protective order). An example of a
one-time threat that would justify reissuing, renewing, or extending an
order for protection is where a respondent—even just once—issues what
amounts to a perpetual threat: “You’ll never be safe. You’ll never know
when I’ll show up. You’d better always be looking over your shoulder.
Because one day—next week, next month, next year—I’ll get you. I
promise you that.”
Unlike that scenario, here we have a single episode of physical
violence with no follow-up act, no threat that the violence will recur, and
no other reasonable grounds to believe that Sam presently intends to harm
Diane or her family. Under these circumstances, the Act does not permit
the reissuance, renewal, or extension of the protective order.
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B. No evidence to justify the 2018 protective order
Under our traditional two-tiered standard of review, see Ind. Trial Rule
52(A), we ask whether the evidence supports the trial court’s findings and
whether its findings support the judgment. Here, the court’s findings do
not support its judgment to enter the 2018 protective order. The record
contains no evidence that Sam posed a present, credible threat to Diane or
her family. The court’s 2018 order consists of just three findings. First,
Diane’s “testimony . . . was credible at the time of the original issuance of
the [2016] order and remains credible today.” Second, Sam “continues to
deny that any domestic violence [against Diane] has ever occurred.”
Third, a protective order is necessary for the court “to bring about a
cessation to a threat of violence.” The court then used these findings as
grounds for its conclusion to enter another two-year protective order
against Sam.
Sam raises arguments challenging all three findings, but we need
address only one. Even crediting Diane’s 2018 testimony, we find that she
did not show that Sam is a present threat to her safety or that of her
family. Diane explained during her testimony that “the protective order
for the last two years . . . kept me safe and I believe it’s worked and I am
asking for continuance again for another two years to keep me safe.” She
said she continues to fear for her life because of Sam’s past violent acts
and has an ongoing fear that he will harm her again. She has a child in
high school and said she also fears for her child’s safety. She will continue
to fear for her family’s safety once the protective order expires. And she is
convinced she will one day have to “pay” for securing a protective order
against Sam.
While recounting her fear of Sam in 2018, Diane admitted that he did
not approach her at her home or office and made no contact during the
duration of the 2016 protective order. Consistent with these admissions,
Sam testified that he has moved on with his life, now lives more than two-
hundred miles from Diane in another state, and is involved in a different,
ongoing relationship. Sam and Diane have no children in common and no
other reason to be involved in each other’s lives.
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Although there were no violations of the 2016 order, Diane believes the
social-media communications that Sam’s relatives initiated were not about
finding children’s toys, but could have been orchestrated by Sam to send
her a threatening message through third parties. Diane cited no evidence
to support her belief. Her own testimony that her daughter-in-law was
one of the “sweetest” people she knew cuts against her claim. And the
daughter-in-law’s testimony refutes Diane’s suspicion that Sam was
involved.
Evidence that the respondent violated a protective order may alone
justify extending the order’s duration because it shows a disregard of
judicial efforts to ensure a prior victim’s safety and security. But when, as
here, the respondent did not violate the prior order, we would put the
respondent in an impossible, no-win situation “if full compliance with a
[prior] protective order can be a basis for extending the order or issuing a
new one”. J.K., 25 N.E.3d at 183.
We are mindful that victims of domestic violence often suffer hidden
wounds that linger long after external injuries have healed or scarred
over. And we do not question the sincerity of Diane’s multiple expressions
of fear that Sam severely beat her before and will do so again. But a trial
court may issue a protective order only if presented with enough evidence
that the respondent represents a present, credible threat to the petitioner’s
safety. Such evidence is simply lacking on this record.
Conclusion
For these reasons, we reverse the trial court’s judgment and remand
with instructions to vacate entry of the 2018 protective order against Sam.
Today’s opinion does not prevent Diane from seeking, or a trial court
from entering, further relief against Sam as may be warranted by acts of
violence or threats of harm to Diane or her family.
Rush, C.J., and David, J., concur.
Goff, J., dissents with separate opinion in which Massa, J., joins.
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ATTORNEYS FOR APPELLANT
R. Patrick Magrath
Alcorn Sage Schwartz & Magrath, LLP
Madison, Indiana
ATTORNEYS FOR APPELLEE
Matthew T. Albaugh
Blayre E. Marley
Faegre Baker Daniels LLP
Indianapolis, Indiana
Indiana Supreme Court | Case No. 19S-PO-118 | January 31, 2020 Page 11 of 11
Goff, J., dissenting.
I respectfully dissent from the Court’s opinion reversing the trial court.
Indiana’s Civil Protection Order Act (the Act) is Indiana’s collective legal
response to problems associated with domestic and family violence. The
Act, along with Indiana’s Protection Order Registry and network of
domestic violence victims’ advocates, ensures the safety of some of
Indiana’s most vulnerable citizens. My colleagues seek only to assure
fairness to all parties in cases arising under the Act. However, by
requiring new evidence of an act or threat to justify extending the
protection order beyond its initial two-year period, I believe the Court’s
opinion today—although confined to the record here—unnecessarily
weakens the Act’s protection.
Part I of my dissent addresses the majority’s interpretation of the
evidence needed to justify an extension of a protection order. Part II, in
turn, offers guidance and best practices for trial courts in light of today’s
decision.
I. Requiring new evidence of conduct by the
respondent to justify extending a protection order
puts the petitioner at risk of further harm.
The sole issue under consideration is whether the trial court’s decision
to extend an order for protection for two years was contrary to law.
Under our deferential standard of review, I would hold that it was not.
See A.G. v. P.G., 974 N.E.2d 598, 598 (Ind. Ct. App. 2012) (“When
considering the sufficiency of the evidence supporting a decision to issue
or modify a protective order, we do not reweigh the evidence or judge the
credibility of witnesses.”).
In her initial petition for a protection order, D.W. alleged that S.H., a
former military special operator and owner of numerous firearms,
grabbed her neck, forced her from her car, slammed her face into the car
door, prevented her from escaping by grabbing her shoulders, and
slammed her down onto the concrete floor. By consenting to the two-year
protection order, S.H. agreed that he perpetrated “domestic or family
violence” against D.W., that he was a “credible threat” to her safety, and
that he should be enjoined from directly or indirectly contacting D.W. for
the presumptive two-year period contemplated in the Act.1 See Ind. Code
§ 34-26-5-9(f) (2014).
Two years later, D.W. petitioned the trial court for an extension of the
original protection order. This extension required evidence of “continuing
harm or the threat of continuing harm that necessitated the issuance of the
protective order in the first instance.” J.K. v. T.C., 25 N.E.3d 179, 181 (Ind.
Ct. App. 2015) (quoting A.N. v. K.G., 10 N.E.3d 1270, 1272 (Ind. Ct. App.
2014)). The trial court judge—who presided over the original order and
the couple’s divorce proceedings—had only to decide whether S.H.
represented a “credible threat to the safety” of D.W. See id. (quoting I.C. §
34-26-5-9(f)).
Still, the Court today requires something more. “Evidence that the
respondent violated a protective order may alone justify extending the
order’s duration,” the majority tentatively concedes. Ante, at 10 (emphasis
added). But without evidence of new conduct by the respondent, whether
in the form of a “follow-up act” or express threat, the Court ultimately
concludes that “the Act does not permit the reissuance, renewal, or
extension of the protective order.” Ibid. at 8.
Is it really necessary for our trial courts, in issuing an extension, to wait
for the respondent to commit an act of violence or to otherwise violate the
original order of protection? I think not. And to conclude otherwise, in my
opinion, defeats the Act’s purpose of promoting the “protection and safety
of all victims of domestic or family violence” and preventing that violence
1 Because S.H. was D.W.’s spouse at the time the original order for protection was entered,
and her former spouse at the time it was extended, state and federal law would have
precluded S.H. from owning or possessing firearms. See I.C. § 34-26-5-3(c) (2014) (citing 18
U.S.C. § 922(g)). In accordance with these statutes, I would remand this matter to the trial
court with instructions to enter an order disqualifying S.H. from owning or possessing
firearms for the duration of the protection order.
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in the future. See I.C. § 34-26-5-1. Indeed, under the heightened
evidentiary standard imposed by the Court today, it may be too late for
many victims to petition for an extension. After all, the “risks of
recidivism and harm are high in the context of domestic and family
violence.” Model Code on Domestic and Family Violence § 306, cmt.
(Nat’l Council of Juvenile and Family Court Judges 1994).2 And to the
extent the majority finds “no other reasonable grounds to believe” that
S.H. intends to harm D.W., ante, at 8, that conclusion departs from our
deferential standard of review and deprives the trial court of deciding
whether there’s a “credible threat to the safety” of the petitioner. See J.K.,
25 N.E.3d at 181.
I agree with the majority that the mere “existence of a prior order does
not dictate the outcome of a later dispute between the same parties.” See
ante, at 8. Indeed, as our Court of Appeals has instructed, an “extension
must be based upon evidence that a protective order currently is
‘necessary to bring about a cessation of the violence or the threat of
violence’ because of a continuing threat of harm.” J.K., 25 N.E.3d at 182
(quoting I.C. § 34-26-5-9(f)). But a petitioner seeking to extend an order for
protection need not present evidence of new conduct on the part of the
respondent—that is, conduct occurring after entry of the original order. In
my opinion, the petitioner’s sworn testimony, so long as the trial court
finds it credible, should suffice in meeting this evidentiary requirement.
And it’s irrelevant whether the prior domestic-violence incident is
“remote in time.” See ante, at 8. Indeed, a “court may not deny a petitioner
relief . . . solely because of a lapse of time between an act of domestic or
family violence and the filing of a petition” I.C. § 34-26-5-13 (emphasis
added).
Here, while S.H. may have only perpetrated a “single episode of
physical violence” against D.W., see ante, at 8, that single episode proved
2The Act “is based largely on the Model Code on Domestic and Family Violence,” among
other laws. Protection Order Committee of the Judicial Conference of Indiana, Protection Order
Deskbook ch. 1, at 1 (rev. ed. 2015), available at https://www.in.gov/judiciary/iocs/files/center-
bb-po-deskbook.pdf.
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extremely violent. And given the severity of that attack, coupled with her
testimony that she remained fearful for her and her family’s lives, D.W.’s
continued subjective fear was objectively reasonable in justifying an
extension of the protection order. Though the evidence presented by D.W.
may have been minimal, the trial court was still in the best position to
weigh the parties’ evidence and to judge the credibility of the witnesses.
II. Trial court judges should develop an adequate
record to ensure the proper outcome.
Had the trial court here clearly indicated that the acts resulting in the
issuance of the original order, coupled with S.H.’s testimony, were
significant enough to justify its extension, I suspect our Court would have
reached a different outcome. But the majority’s decision today, despite
our deferential standard of review, now calls for a much more deliberate
approach by a trial court in extending a protection order. Therefore,
courts should develop an adequate record and factual basis for issuing
and/or extending a protection order. See Protection Order Committee of
the Judicial Conference of Indiana, Protection Order Deskbook ch. 4, at 7–8
(rev. ed. 2015), available at http://www.in.gov/judiciary/iocs/files/center-
bb-po-deskbook.pdf .3 See also id. ch. 9, at 3 (discussing extensions of
protection orders).4 This record should include testimony from the parties
and witnesses along with any other evidence sufficient to allow a
reviewing court to determine that a petitioner made a prima facie case
satisfying the Act’s requirements. And in the context of an extension, the
trial court’s findings should indicate why a particular fact was significant
3I cite this publicly available resource not as binding authority but rather for its
recommended best practices.
4When filing for an extension of a protection order, “due process requires the court to
conduct a hearing, providing notice to the Respondent and an opportunity for the
Respondent to object to the extension.” Protection Order Deskbook ch. 9, at 2. If the petitioner is
unable to timely file for an extension, or if service of process can’t be perfected before the
original order expires, a new petition for a protective order should be filed, ex parte. Id. ch. 9,
at 2–3.
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to the trial court, especially if other facts seem to weigh against its
decision. Id.
These and other best practices will determine the effectiveness of the
Act’s express goal of ensuring the “protection and safety of all victims of
domestic or family violence” and preventing such violence in the future.
See I.C. § 34-26-5-1 (2019).
Conclusion
Protecting victims of domestic and family violence is a high priority for
our State. The extraordinary powers embodied in the Act and the relative
ease with which they can be invoked are necessary to prevent harm—and
possibly death—to vulnerable persons at the hands of their abuser. To be
sure, a protection order may “impose significant restrictions on a
respondent’s freedom of movement and other rights.” A.N., 10 N.E.3d at
1272. But the legislature expressly directed courts to construe the Act to
promote the victim’s safety and protection. The Court’s decision today, in
my opinion, runs contrary to this intent.
Massa, J., joins.
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