S.T. v. K.D. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 04 2018, 8:38 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
Caroline B. Briggs
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
S.T., May 4, 2018
Appellant-Respondent, Court of Appeals Case No.
12A05-1710-PO-2356
v. Appeal from the Clinton Superior
Court
K.D., The Honorable Donald Currie,
Appellee-Petitioner Senior Judge
Trial Court Cause No.
12D01-1707-PO-588
May, Judge.
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[1] S.T. (“Respondent”) appeals the grant of a protective order to K.D.
(“Petitioner”). Respondent presents three issues, which we restate as:
1. Whether the trial court abused its discretion when it granted
the State of Indiana’s Motion to Quash Respondent’s subpoena
of Angie Dunk, an employee of the Clinton County Prosecutor’s
Office;
2. Whether the trial court abused its discretion when it entered
an order striking Respondent’s motion to produce evidence; and
3. Whether Petitioner presented sufficient evidence of
Respondent’s stalking to obtain a protective order.
We affirm.
Facts and Procedural History
[2] On July 7, 2017, Petitioner requested a protective order against Respondent,
alleging Respondent committed multiple acts of stalking against Petitioner. On
July 31, 2017, Respondent filed a motion to produce evidence and a subpoena
for Angie Dunk, an employee of the Clinton County Prosecutor’s Office. On
August 1, 2017, the trial court entered an order striking Respondent’s motion to
produce evidence because it did not comport with the relevant trial rules. On
August 4, 2017, the Clinton County Prosecutor’s Office filed a motion to quash
Respondent’s subpoena of Dunk. On August 8, 2017, the trial court granted
the motion to quash.
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[3] On August 25, 2017, the trial court held a hearing on Petitioner’s request for a
protective order. Both parties appeared pro se. The parties did not dispute
Petitioner loaned Respondent money, which Respondent had not paid back.
Petitioner presented testimony of at least two incidents with Respondent that
caused Petitioner to feel “upset,” (Tr. Vol. II at 10); “rattled,” (id. at 12);
“shocked,” (id. at 24); and “shooken [sic] up.” (Id. at 35.) Based on the
evidence, the trial court entered a protective order and stated:
[Court]: [Respondent], you are not to have contact
with [Petitioner]. Directly. Indirectly.
[Respondent]: I have no contact.
[Court]: Or through any okay well that makes it easy.
Not a big deal then. Uh simply uh
[Petitioner] you can’t be contacting
[Respondent] asking her where the money is
or anything like that. Because [Respondent]
is now under an Order of Protection like
you’ve requested. You’ve got it.
[Respondent’s] not gonna make any contact
with you uh direct or indirectly except
through an attorney of law. Uh they can
make contact with you about notices and
things like that. But you cannot make
contact with [Respondent]. [Respondent’s]
not gonna be making contact with you.
(Id. at 79) (errors in original).
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Discussion and Decision
[4] Petitioner did not file an appellee’s brief. When an appellee does not submit a
brief, we do not undertake the burden of developing arguments for that party.
Thurman v. Thurman, 777 N.E.2d 41, 42 (Ind. Ct. App. 2002). Instead, we
apply a less stringent standard of review and may reverse if the appellant
establishes prima facie error. Id. Prima facie error is “error at first sight, on first
appearance, or on the face of it.” Van Wieren v. Van Wieren, 858 N.E.2d 216,
221 (Ind. Ct. App. 2006).
Grant of Motion to Quash Subpoena
[5] The trial court has broad discretion in ruling on a motion to quash, and we will
reverse the trial court’s order only for an abuse of discretion. Matter of Estate of
Wilson, 610 N.E.2d 851, 854 (Ind. Ct. App. 1993), reh’g denied, trans. denied, cert.
denied sub nom. Phipps v. Wilson, 510 U.S. 1072 (Jan. 18, 1994). Respondent
argues the trial court abused its discretion when it granted the Clinton County
Prosecutor’s Office’s motion to quash the subpoena of Angie Dunk because
Respondent was not given adequate notice of the motion to quash and, thus,
was not able to respond thereto.
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[6] On July 31, 2017, Respondent 1 filed a subpoena for the presence and testimony
of Angie Dunk, an employee of the Clinton County Prosecutor’s Office. On
August 4, 2017, in response to Respondent’s subpoena of Dunk, the Clinton
County Deputy Prosecuting Attorney filed a motion to quash the subpoena
because “any information [Dunk] may have received from Petitioner while
working in the Clinton County Prosecutor’s Office pertains to an active
criminal investigation, and therefore, an expectation of privacy exists.” (App.
Vol. II at 20.) The motion to quash also stated, “Dunk has no testimony to
offer that would be relevant to this proceeding.” (Id.) On August 8, 2017, the
trial court granted the Prosecutor’s motion to quash.
[7] It is well-settled to preserve an error in a pre-trial ruling, a party must object to
the admission or exclusion of that evidence at trial. Perez v. Bakel, 862 N.E.2d
289, 295 (Ind. Ct. App. 2007) (footnote added). “Failure to object at trial . . .
results in waiver of the error.” Id. at 296 (quoting Weinberg v. Geary, 686 N.E.2d
1298, 1300 (Ind. Ct. App. 1997), reh’g denied, trans. denied). When testimony is
excluded, a party must make an offer to prove “to preserve for appeal the trial
court’s allegedly erroneous exclusion of evidence.” Bradford v. State, 675
N.E.2d 296, 302 (Ind. 1996), reh’g denied. During trial, Respondent did not
mention the trial court’s grant of the motion to quash, nor did she make an offer
to prove indicating what Dunk would have testified. Thus, her argument is
1
Both parties appeared pro se before the trial court. It is well settled that pro se litigants are held to the same
standards as licensed attorneys and are required to follow procedural rules. Evans v. State, 809 N.E.2d 338,
344 (Ind. Ct. App. 2004), trans. denied.
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waived. See Baxendale v. Raich, 878 N.E.2d 1252, 1258 (Ind. 2008) (when there
is “no showing what the anticipated evidence would have been,” an argument
for admission of evidence is precluded on appeal).
Order Striking Motion to Produce Evidence
[8] “A trial court is accorded broad discretion in ruling on issues of discovery.”
State v. Pelley, 828 N.E.2d 915, 923 (Ind. 2005). Consequently, our review is
limited to determining whether the trial court abused its discretion. In re
Witham Mem’l Hosp., 706 N.E.2d 1087, 1090 (Ind. Ct. App. 1999). An abuse of
discretion occurs when the trial court reaches a conclusion that is against the
logical inferences to be drawn from the facts of the case. Id. We presume the
trial court decided correctly, and the party challenging its decision has the
burden on appeal of demonstrating error. Pelley, 828 N.E.2d at 923.
[9] On July 31, 2017, Respondent filed a motion to produce evidence, requesting
Petitioner “disclose, and in the case of a tangible item, . . . produce for
examination, inspection and copying” a list of items such as witnesses,
documents, recorded statements, and electronic surveillance allegedly relevant
to the case. (App. Vol. II at 16.) Respondent included with the motion a draft
order, granting her request. On August 1, 2017, the trial court issued as its
Order a revised version of Respondent’s draft order. As revised, the order
states: “The Court strikes Respondent’s Motion to Produce Evidence. No
request for discovery shall be filed with the Court except in accordance with
Trial Rule 5(E)(2).” (Id. at 18.)
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[10] Respondent argues the trial court abused its discretion when it struck her
motion to produce evidence because the Indiana Trial Rules do not allow a trial
court to strike a document from the record without motion of a party.
However, Respondent did not present this issue before the trial court by way of
objection at trial, and thus it is waived. See Perez, 862 N.E.2d at 295 (allegation
of error in trial court’s decision regarding a pre-trial motion must be presented
to the trial court by way of objection during trial; if not, alleged error is waived
from appellate consideration).
Sufficiency of Evidence
[11] Respondent argues the evidence was insufficient to grant Petitioner’s request for
a protective order. When reviewing sufficiency of evidence to support a
protective order, we neither reweigh the evidence nor judge the credibility of
witnesses. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). We
consider only the probative evidence and reasonable inferences therefrom
supporting the trial court’s judgment. Id.[12] The legislature established the criteria by which a trial court may grant a
protective order:
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
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(2) person who has committed stalking under IC 35-45-10-5 or a
sex offense under IC 35-42-4 against the petitioner.
Ind. Code § 34-26-5-2(a). A person who requests a protective order must prove
one of the elements of Indiana Code section 34-26-5-2(a) by a preponderance of
the evidence. Essany v. Bower, 790 N.E.2d 148, 154-55 (Ind. Ct. App. 2003).
Respondent argues Petitioner did present sufficient evidence that Petitioner
committed stalking.
[13] 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. “[T]he term ‘repeated’ in Indiana’s anti-
stalking law means ‘more than once.’” Johnson v. State, 721 N.E.2d 327, 332-3
(Ind. Ct. App. 1999), trans. denied. Petitioner presented evidence of at least two
incidents involving the parties that caused Petitioner to feel “upset,” (Tr. Vol. II
at 10); “rattled,” (id. at 12); “shocked,” (id. at 24); and “shooken [sic] up.” (Id.
at 35.)
[14] Starting around June 10, 2017, after being asked not to contact Petitioner,
Respondent sent multiple text messages to Petitioner and Petitioner’s daughter.
On June 13, 2017, Respondent came to Petitioner’s house and, while there,
Respondent was “irate” (id. at 24), “screaming and hollering,” (id.), and
“carrying on.” (Id.) As a result, Petitioner called the police. We conclude
Petitioner’s testimony constituted sufficient evidence Respondent stalked
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Petitioner as defined by Indiana law. 2 See Johnson, 721 N.E.2d at 333 (while
victim did not testify that she was specifically “terrorized, frightened,
intimidated, or threatened” by Johnson’s behavior, that fact could be inferred
from her testimony).
Conclusion
[15] Respondent’s failure to object at trial to the quashing of her subpoena or the
striking of her motion to produce evidence, along with her failure to provide an
offer of proof about what evidence would have been produced, renders those
evidentiary issues unavailable for appeal. Petitioner presented sufficient
evidence to prove Respondent stalked her. Accordingly, we affirm.
[16] Affirmed.
Riley, J., and Mathias, J., concur.
2
Respondent’s brief directs our attention to times when Petitioner or her daughter initiated contact with
Respondent, while omitting reference to the incidents and testimony that supported the trial court’s decision.
Such argument is an invitation for us to reweigh the evidence, which we cannot do. See Tisdial, 925 N.E.2d
at 785 (appellate court cannot reweigh evidence or judge the credibility of witnesses when evaluating the
sufficiency of the evidence to support a protective order).
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