D.S. v. L.K. (mem. dec.)
37A03-1702-PO-359
| Ind. Ct. App. | Sep 29, 2017Background
- D.S. and L.K. were college students who had an on‑again/off‑again dating and sexual relationship; D.S. ended the relationship in Sept. 2016 and L.K. refused further sexual advances.
- On Oct. 26, 2016, D.S. went to L.K.’s dorm room, allegedly forced her to perform oral sex and then had vaginal intercourse; L.K. reported to her mother, campus security, and police and sought an ex parte protective order.
- The trial court issued an ex parte protective order prohibiting D.S. from contact; Saint Joseph’s College implemented a cafeteria schedule to keep them apart and warned D.S. about disciplinary consequences for violations.
- L.K. later filed contempt allegations for multiple alleged violations of the protective order; the college and D.S. both acknowledged some cafeteria scheduling violations.
- At the combined hearing, L.K. testified she was raped; D.S. claimed the sexual encounters were consensual and any campus violations were due to scheduling miscommunication.
- The trial court denied contempt but allowed the protective order to become permanent; D.S. filed a motion to correct error which was denied. He appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported issuance/maintenance of a protective order under Indiana’s CPOA | L.K.: testimony established D.S. involuntarily caused her to engage in sexual activity by force/duress | D.S.: insufficient evidence of sexual assault or threats; asks court to reweigh credibility | Court: Evidence (L.K.’s testimony) sufficient by preponderance; protective order may become permanent; denial of motion to correct error affirmed |
Key Cases Cited
- Kornelik v. Mirtal Steel USA, Inc., 952 N.E.2d 320 (Ind. Ct. App. 2011) (standard of review for denial of motion to correct error/abuse of discretion)
- A.S. v. T.H., 920 N.E.2d 803 (Ind. Ct. App. 2010) (elements required to obtain a protective order under the CPOA)
- Drane v. State, 867 N.E.2d 144 (Ind. 2007) (appellate review limited to evidence favorable to trial court; do not reweigh credibility)
- Chavers v. State, 991 N.E.2d 148 (Ind. Ct. App. 2013) (reminder that appellate courts must defer to trial court credibility findings in protective order cases)
- Scott v. State, 867 N.E.2d 690 (Ind. Ct. App. 2007) (trier of fact entitled to choose which version of events to credit)