J.D. v. E.B. (mem. dec.)
55A01-1708-PO-1975
| Ind. Ct. App. | Jan 10, 2018Background
- Neighbors for ~8 years; relationship soured before 2011 and hostile conduct continued through 2017.
- J.D. repeatedly yelled profanities, hurled insults (including racial epithets), screamed at E.B. across the property line, and made threatening hand gestures (forming/punching a fist).
- J.D. sent abusive text messages and told E.B.'s grandson, in E.B.'s presence, he wished E.B. were dead so he could urinate on his grave.
- J.D. followed E.B. while E.B. tended livestock and was also observed following/pursuing E.B. away from his property (including following E.B.'s vehicle).
- E.B., an 83-year-old, testified he was afraid and did not trust J.D.; a family friend corroborated provocative, repeated behavior along the fence line.
- Procedural: E.B. obtained an ex parte protective order (Sept. 6, 2016); after an evidentiary hearing the trial court found stalking and entered a protective order; J.D. appealed, arguing insufficient evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported issuance of a protective order under the CPOA based on stalking | E.B.: J.D. engaged in an intentional course of repeated harassment (yelling, following, threatening gestures/texts) that actually frightened E.B. and would frighten a reasonable person | J.D.: Evidence insufficient; conflicts and mutual encounters, reliance on Tisdial v. Young argue conduct did not amount to stalking or was mutual/innocuous | Court affirmed: evidence sufficient to show stalking (repeated/continuing harassment, impermissible contact, actual and objective fear) |
Key Cases Cited
- Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003) (abuse-of-discretion standard for motion to correct error)
- Hanauer v. Hanauer, 981 N.E.2d 147 (Ind. Ct. App. 2013) (trial courts must make special findings for protective orders; two-tiered review of findings and conclusions)
- A.S. v. T.H., 920 N.E.2d 803 (Ind. Ct. App. 2010) (do not reweigh evidence or judge credibility when reviewing sufficiency for protective orders)
- Parkhurst v. Van Winkle, 786 N.E.2d 1159 (Ind. Ct. App. 2003) (CPOA covers stalking even if not committed by family/household member)
- Tisdial v. Young, 925 N.E.2d 783 (Ind. Ct. App. 2010) (distinguished—there, encounters were mutual/path-of-travel based and did not show one party “came looking” for the other)