John A. FOX, Appellant-Respondent, v. Tracy BONAM and Doug Bonam, Appellees-Petitioners.
Court of Appeals of Indiana.
Oct. 16, 2015.
Julia Blackwell Gelinas, Maggie L. Smith, Frost Brown Todd LLC, Indianapolis, IN, Michael A. Ksenak, Martinsville, IN, Attorneys for Appellant.
CRONE, Judge.
Case Summary
[1] Soon after Tracy and Doug Bonam moved next door to John and Mary Fox, their neighborly relationship soured. John obtained protective orders against the Bonams, and the Bonams petitioned for a protective order against John based on allegations of stalking. After a hearing, the trial court concluded that John committed stalking against Tracy and issued a protective order that includes restrictions involving his motorcycle, motorized tools, and firearms. John now appeals, contending that the protective order should be dismissed because he did not commit stalking and that the above restrictions are impermissible. We hold that the trial court did not err in concluding that John committed stalking but that it did err in imposing the restrictions. Therefore, we affirm the protective order in part and vacate those restrictions.
Facts and Procedural History
[2] The Bonams moved next door to the Foxes in 2011. Their neighborly relationship was initially cordial but deteriorated after a dispute over a rosebush near their property line. In November 2013, John petitioned for protective orders against the Bonams, which the trial court issued ex parte. In December 2013, the Bonams petitioned for a protective order against John, alleging that they had been victims of stalking based on incidents discussed below.
[3] Because of continuances by the parties and the trial court, a consolidated hearing on the petitions was not held until January 2015. During the hearing, John testified that he owned numerous firearms. The trial court made oral findings at the conclusion of the hearing and then issued a written order. The court continued John‘s protective order against Tracy until December 2015, dismissed John‘s protective order against Doug, and did not issue a protective order in favor of Doug. The court concluded that John committed stalking against Tracy and issued a protective order that enjoins John from “threatening to commit or committing acts of stalking against [Tracy]” and “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [her]” until January 2017. Appellant‘s App. at 7. The order contains additional restrictions, including that John not start his motorcycle or do any yard work with a motorized tool before 8:30 a.m. and that he surrender his firearms to the county sheriff.
[4] John filed a motion to correct error, which the trial court denied. John appealed and filed a motion to stay enforcement of the protective order.1 The motions panel of this Court granted the motion in part and ordered the immediate return of John‘s firearms. Additional facts will be provided below.
Discussion and Decision
Section 1—The trial court did not err in concluding that John committed stalking against Tracy.
[5] John appeals from the denial of his motion to correct error. “We generally review the denial of a motion to correct error for an abuse of discretion.” Peoples State Bank v. Benton Twp. of Monroe Cnty., 28 N.E.3d 317, 321 (Ind.Ct. App.2015). “An abuse of discretion occurs when the trial court‘s decision is against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.” Id. (citation omitted).
[6] Our legislature has indicated that the Indiana Civil Protection Order Act shall be construed to promote the protection and safety of all victims of domestic violence “in a fair, prompt, and effective manner” and the prevention of future domestic violence.
[7] A person who has been a victim of domestic violence may file a petition for a protective order against a person who has committed stalking against the petitioner.
[8] Protective orders are similar to injunctions, and therefore in granting an order the trial court must sua sponte make special findings of fact and conclusions thereon. Hanauer v. Hanauer, 981 N.E.2d 147, 148 (Ind.Ct.App.2013) (citing, inter alia,
[9] The trial court concluded that John committed stalking against Tracy based on five separate allegations that it found to be true. We note that the court did not specifically find that John committed stalking based on any single allegation. We address the allegations as they are numbered in Tracy‘s petition.
Allegation 1
[10] Tracy alleged that in the winter of 2012, John
set up bulls eye targets approximately [eight to ten feet] from the property line purposely facing them towards the Bonam residence. Further, [John] stuck a sign close to the property line on a stake directing [sic] facing the Bonam‘s [sic], such sign reading: “Warning! Is there life after death? Trespass here and find out.” The sign also contained a gun pointing towards the viewer, with a fist wrapped around the gun. This was placed in an effort to stalk, intimidate, and harass the Bonam‘s [sic]. Also at various times since Winter 2012, when [John] was working in his yard, he will take the targets from his garage and place them out in the driveway directing [sic] facing the Bonam home.
Appellant‘s App. at 46.
[11] John contends that these facts cannot serve as a basis for the protective order because he has a constitutional right under the First Amendment to post a no-trespassing sign on his property. Appellant‘s Br. at 28 (citing Dolecky v. Borough of Riverton, 223 N.J.Super. 354, 538 A.2d 856, 858 (1987)). We need not address this contention, however, because John‘s placement of the bullseye targets near the Bonams’ property line is not a constitutionally protected activity. See Superior Constr. Co. v. Carr, 564 N.E.2d 281, 284 (Ind.1990) (“[A]s a matter of jurisprudence, we do not decide cases upon constitutional grounds when they can be decided upon other grounds.“). John argues that this conduct “should not be considered ‘impermissible contact’ as required by § 35-45-10-2[,]” which defines harassment, which in turn is an essential element of stalking. Appellant‘s Br. at 29. As indicated above, however, harassment is “conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact[.]”
Allegation 2
[12] Tracy also alleged that in August 2012, John pulled into her driveway next to her daughter‘s car.
At this point in time [John] began shouting obscenities at [Tracy], including calling her a “fat ass“. [Tracy] informed
[John] that he was trespassing on their property and asked him not to park on their property anymore. [John] pulled his arm back in a threatening gesture as if to strike [Tracy]. While he was doing this, he continued to shout obscenities at [Tracy]. [John] then began backing his truck up as if he was going to hit [Tracy] or her truck. [Tracy] feared that [John] would be hitting her truck so she got in her truck. [Tracy] started to call Security on her cell phone, and [John] drove through the guard and onto another property owner‘s driveway and then went to his home.
Appellant‘s App. at 46.
[13] John observes that he cited this incident in his petition for a protective order against Tracy5 and the trial court also found his allegation to be true. Citing Tisdial v. Young, 925 N.E.2d 783 (Ind.Ct.App.2010), he asserts that these facts cannot serve as a basis for her protective order because Tracy admitted that she was the “initiator and the aggressor.” Appellant‘s Br. at 22. In Tisdial, based on the statutory definition of impermissible contact, another panel of this Court stated that “stalking requires some evidence that the actor is the one looking for the victim.” 925 N.E.2d at 786. We respectfully disagree.
[14] Here, Tracy acknowledged that she confronted John and “purposely touched” his truck against his wishes, but she stated that she did so because she was “tired of being bullied.” Tr. at 289, 291. John responded by threatening to batter her with his fist and his truck. We conclude that this constitutes harassment, in that it would cause a reasonable person to suffer emotional distress and actually caused Tracy to suffer emotional distress. See id. at 290 (Tracy testifying that she “was shaking” and “too nervous” to call security and that she “went straight inside and had a meltdown” after the incident). Essentially, the trial court concluded that two wrongs did not make a right in this situation, and we see no reason to disagree.6
Allegation 4
[15] Next, Tracy alleged that in May 2013, John
raised his fists and moved them in a circular motion while [Tracy] was out in her driveway awaiting relatives to come to her home for a visit. [John] had been walking up and down the cul-de-sac pri-or
to this, when [Tracy] was outside and walking in an attempt to intimidate her.
Appellant‘s App. at 47. Here again, John cited this incident in his petition for a protective order against Tracy,7 and the trial court found his allegation to be true. And here again, John contends that, pursuant to Tisdial, Tracy‘s allegation cannot serve as a basis for her protective order because she initiated the encounter. For the reasons stated above, we are unpersuaded by John‘s reliance on Tisdial.
[16] John further contends that Tracy‘s allegation is baseless because she admitted that she did not feel “super threatened” by his actions. Tr. at 295. But this was only because she knew that her aunt was “going to pull around [the] corner at any second.” Id.
Allegation 5
[17] Tracy also alleged that in early June 2013, John
blew dirt and leaves on to the Bonam property and hit [Doug] in an open wound that he had on his body. This resulted in a report to Security by the Bonam‘s [sic]. [John] received a letter on or about this date from the Foxcliff Estates North Homeowners Association‘s Attorney concerning [John‘s] conduct.
Appellant‘s App. at 47.
[18] John observes that the trial court found this allegation to be “true, but as to a different date” based on a video recorded by Tracy that, according to the trial court, shows John “intentionally blowing leaves over onto the Bonam property” but not onto Doug.8 Tr. at 366. John complains that the court‘s “sua sponte declaration that [he] committed stalking based on [the video] must be reversed because it is unsupported by the evidence—the video shows no such thing—and was never an incident even alleged by Tracy to constitute harassment.” Appellant‘s Br. at 25-26. Tracy correctly observes that John did not object to the admission of the video or to the trial court‘s stated intention to view it outside of court, Tr. at 307, but there was no indication that the court would rely on that incident as substantive evidence of stalking. Moreover, as John points out, “Tracy provided no testimony that she, in fact, felt terrorized, frightened, intimidated, or threatened by this incident[.]” Appellant‘s Reply Br. at 5. In sum, we agree with John that evidence to support this allegation is lacking.
[19] Finally, Tracy alleged that in September 2013, John
waited for [her] to leave her home, as he had been watching her that particular day. He followed her out of the subdivision, and onto Maple Turn Road. This was done in a manner to continue to stalk her as he has done in the past concerning his name calling, his gestures, and his other acts of intimidation.
Appellant‘s App. at 48.
[20] John cited this incident in his petition for a protective order against Tracy.9 The trial court found his allegation to be true but opined that John “[came] to that incident with unclean hands. Yes, [Tracy] did act inappropriately, but it was in response to actions by [John] that were inappropriate.” Tr. at 364. John claims that this allegation cannot serve as a basis for Tracy‘s protective order because “[t]he freedom to be on a public street is one of the personal liberties guaranteed by the federal constitution[.]” VanHorn v. State, 889 N.E.2d 908, 912 (Ind.Ct.App.2008), trans. denied. But John cites no authority for the proposition that following someone on a public street with the intent to intimidate that person is a constitutionally protected activity.10 Cf.
[21] At this point, we reiterate that the trial court did not specifically find that John committed stalking against Tracy based on any single allegation. Leaving aside the problematic Allegation 5, we conclude that the evidence regarding Tracy‘s remaining allegations is sufficient to support the trial court‘s conclusion that John committed stalking as defined by
Section 2—The trial court erred in imposing restrictions on John‘s use of his motorcycle.
[22] In addition to prohibiting John from “harassing, annoying, telephoning, contacting, or directly or indirectly communicating with [Tracy],“, the protective order prohibits him from “leav[ing] his motorcycle running in his driveway for more than 5 minutes on any given day” and from “start[ing] it up until after 8:30 am.” Appellant‘s App. at 7-8. John asserts that this restriction should “be reversed because it is not related to any of Tracy‘s alleged incidents and not mentioned by the trial court‘s findings of fact.” Appellant‘s Br. at 38. Indeed, the motorcycle is mentioned only in John‘s petitions for protective orders against the Bonams and not in the Bonams’ petition for a protective order against John. See Appellant‘s App. at 17, 33 (John‘s allegation: “John warming up his Harley Davidson motorcycle to check the oil. John turned it off and heard Tracy state ‘The judge is going to like this video.‘“). Tracy offered no video regarding John‘s motorcycle use into evidence and did not testify about it, and Doug acknowledged that John had “gotten better” about “revving” the motorcycle. Tr. at 236.
[23] Tracy points out that when issuing a protective order, the court may “[o]rder other relief necessary to provide for the safety and welfare of a petitioner and each designated family or household member.”
Section 3—The trial court erred in ordering John not to do yard work or create noise with a motorized tool before 8:30 a.m.
[24] The protective order also prohibits John from “do[ing] any yard work or creat[ing] any noise by way of a
Section 4—The trial court erred in ordering John to surrender his firearms.
[25] At the conclusion of the hearing, the trial court stated,
I find that because of [John‘s] use of the target, and the small [no trespassing] sign, both insinuating firearms and somebody‘s death, and his admission that he has multiple firearms and that he will take care of anybody who walks over onto his property, that a clear and convincing threat of use of a deadly weapon of [sic] firearms exists. Therefore, I‘m ordering that he be Brady disqualified, and the Sheriff per the written order and decree issued today go to his residence yet this afternoon and seize all firearms....
Tr. at 366-367.
[26] “Brady disqualified” is a reference to the Brady Handgun Violence Prevention Act, which states in pertinent part that any person who is subject to a court order that “restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person” is prohibited from possessing a firearm.
Pursuant to 18 U.S.C. 922(g), once a respondent has received notice of this order and an opportunity to be heard, it is a federal violation to purchase, receive or possess a firearm while subject to this order if the protected person is:
(A) The respondent‘s current or former spouse;
(B) A current or former person with whom the respondent resided while in an intimate relationship; or,
(C) A person with whom the respondent has a child.
Id. at 9.
[27] John points out that he is not an “intimate partner” of Tracy for purposes of
[28] Tracy contends that the trial court was authorized to order John to surrender his firearms pursuant to
[p]rohibit a respondent from using or possessing a firearm, ammunition, or a deadly weapon specified by the court, and direct the respondent to surrender to a specified law enforcement agency the firearm, ammunition, or deadly weapon for the duration of the order for protection unless another date is ordered by the court.
[29] John points out that these provisions were not cited by the trial court and are not mentioned in the protective order. Also, he asserts that Indiana‘s “protective order statutes as a whole make clear that 34-26-5-9(f) is simply the state law vehicle to effectuate the mandates of
[30] Affirmed in part and vacated in part.
BAKER, J., and NAJAM, J., concur.