Court of Appeals of Indiana | Opinion 18A-PO-1566 | January 29, 2019 Page 1 of 11

ATTORNEY FOR APPELLANT

Brent R. Dechert

Kokomo, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

C.S.,

Appellant-Respondent,

v.

T.K.,

Appellee-Plaintiff,

January 29, 2019

Court of Appeals Case No.

18A-PO-1566

Appeal from the Howard Superior 

Court

The Honorable William C. 

Menges, Jr., Judge

Trial Court Cause No.

34D01-1804-PO-45

Robb, Judge.
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Case Summary and Issue

[1] T.K. was granted an ex parte order for protection from C.S. After C.S. filed a 

motion to dismiss, the trial court conducted a hearing and again granted T.K.’s 

request for an order for protection. C.S. now appeals the order for protection 

raising a single issue for our review, whether there was sufficient evidence to 

support the issuance of the protective order. Concluding there was insufficient 

evidence to support the issuance of the protective order, we reverse.

Facts and Procedural History 

[2] C.S. owns a towing and mobile automobile repair business in Kokomo and 

T.K. is an officer with the Kokomo Police Department. C.S. has a pending 

criminal case against him for “intimidation, stalking and harassment” in which 

T.K. is the alleged victim.1 Transcript of Evidence, Volume II at 4. 

[3] On April 20, 2018, T.K. filed a petition for an order for protection against C.S., 

alleging that she had been a victim of stalking. In her petition, T.K. 

enumerated three incidents in which she encountered C.S. The first of these 

incidents occurred within the previous three to four months when T.K. was 

having lunch with her mother at a Panera Bread restaurant. T.K. stated that 

 

1 Notably, none of the events underlying the pending criminal charges against C.S. were included in T.K.’s 

petition for an order for protection against C.S. or presented as evidence at the hearing on June 12, 2018. 
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C.S. “entered the restaurant. [C.S.] is familiar [with] my patrol car that was 

parked in the parking lot.” Appendix of Appellant, Volume 2 at 6. 

[4] The second incident occurred on April 13, 2018, in the parking lot of a U-Haul 

rental location. T.K. stated that she was leaving a nearby store and “observed 

[C.S.] on top of a U-Haul truck . . . using his cell phone to video tape [sic]

[her].” Id.

[5] The third and final incident occurred on April 20, 2018, the date T.K. filed her 

petition. T.K. stated that she:

[W]ent in the post office to mail a [package] [at] 11:35 am, as I 

exited the post office, [C.S.] walked right up behind me and 

followed me out of the [post office]. [C.S.] was not in the 

parking lot when I pulled in but he is very familiar [with] my 

vehicle. 

Id. On the basis of this petition, the trial court granted T.K.’s petition for an 

order for protection ex parte the same day. 

[6] C.S. filed a motion to dismiss the order for protection on May 10, 2018, and the 

parties appeared for a contested hearing on June 12. There, T.K. testified that it 

“[j]ust seems like this is a repetitive behavior for someone that’s out on bond for 

stalking, intimidation and harassment. Seems like it is continuing and it’s 

becoming more frequent.” Tr., Vol. II at 4. The trial court concluded that, 

If we were to look at the individual acts that have been testified 

to in the context of a criminal stalking case, I would have to find 

that [T.K.] has not proved beyond a reasonable doubt that [C.S.]
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has committed stalking against her. However, the burden is

preponderance of the evidence and what one thing that I’ve 

learned over the years is I don’t like coincidences and I’m, to 

start throwing coincidences together, then it starts increasing the 

weight to be given to them and here we have three coincidences 

as established by, at least is claimed, by [C.S.]. I think we have 

gotten over the preponderance of the evidence burden and I think 

what we have to look at, also, is that if in fact [C.S.] wants to 

have no more to do with [T.K.] than she wants him to have with 

her, then a protective order is no harm/no foul, particularly if 

he’s willing to have a no-contact order issued. The only 

difference between a no-contact order in a criminal case, is that 

that one is issued, dismissed or modified solely in the discretion 

of the Judge as opposed to at the request of the petitioner.

* * * 

And if the evidence were to be, you know, you’re throwing out, 

okay, he’s in Panera Bread which he has a right to be, he walks 

into Panera Bread, sees her, the best thing you can do is turn 

around and leave. If he does that, that will not support an 

invasion of privacy charge because it requires the intentional 

violation of the order. So I’m going to find that [T.K.] has 

(inaudible) by a preponderance of the evidence, that stalking has 

occurred sufficient to justify the issuance of a protective order, . . 

. that [C.S.]represents a critical threat to the safety of [T.K.], and 

that the following relief is necessary.

Id. at 30-31. C.S. now appeals. 

Discussion and Decision 
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I. Standard of Review

[7] 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, Ind. Trial 

Rule 52(A) and Ind. Code § 34-26-5-9(a), -(f)). We apply a twotiered standard of review: we first determine whether the 

evidence supports the findings, and then we determine whether 

the findings support the order. Id. at 149. In deference to the 

trial court’s proximity to the issues, we disturb the order only 

where there is no evidence supporting the findings or the findings 

fail to support the order. Koch Dev. Corp. v. Koch, 996 N.E.2d 

358, 369 (Ind. Ct. App. 2013), trans. denied (2014). We do not 

reweigh evidence or reassess witness credibility, and we consider 

only the evidence favorable to the trial court’s order. Id. The 

party appealing the order must establish that the findings are 

clearly erroneous. Id. “Findings are clearly erroneous when a 

review of the record leaves us firmly convinced that a mistake has 

been made. We do not defer to conclusions of law, however, and 

evaluate them de novo.” Mysliwy v. Mysliwy, 953 N.E.2d 1072, 

1076 (Ind. Ct. App. 2011) (citation omitted), trans. denied.

Fox v. Bonam, 45 N.E.3d 794, 798-99 (Ind. Ct. App. 2015). 

[8] Before proceeding to the merits of this appeal, we note that T.K. 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. Spencer v. Spencer, 

990 N.E.2d 496, 497 (Ind. Ct. App. 2013). Instead, we apply a less stringent 

standard of review and may reverse if the appellant establishes prima facie 

error, namely “error at first sight, on first appearance or on the face of it.” Id. 

(quoting Van Wieren v. Van Wieren, 858 N.E.2d 216, 221 (Ind. Ct. App. 2006)).
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II. Order for Protection

[9] The Indiana Civil Protection Order Act was enacted to promote the “protection 

and safety of all victims of domestic or family violence in a fair, prompt, and 

effective manner” and to prevent “future domestic and family violence.” Ind. 

Code § 34-26-5-1. Domestic violence includes stalking which 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; Ind. Code § 34-6-2-34.5 (explaining “[f]or purposes of IC 34-26-5, 

domestic and family violence also includes stalking . . . whether or not the 

stalking . . . is committed by a family or household member.”). However, 

stalking “does not include statutorily or constitutionally protected activity.” 

Ind. Code § 35-45-10-1. 

[10] Harassment is defined as “conduct directed toward a victim that includes but is 

not limited to repeated or continuing impermissible contact that would cause a 

reasonable person to suffer emotional distress and that actually causes the 

victim to suffer emotional distress.” Ind. Code § 35-45-10-2. Impermissible 

contact “includes but is not limited to knowingly or intentionally following or 

pursuing the victim.” Ind. Code § 35-45-10-3. And, as with stalking, 

“[h]arassment does not include statutorily or constitutionally protected 

activity[.]” Ind. Code § 35-45-10-2.
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[11] A person who has been a victim of stalking may file a petition for a protective 

order. Ind. Code § 34-26-5-2(a). 

A finding that domestic or family violence has occurred sufficient 

to justify the issuance of an order . . . means that a respondent 

represents a credible threat to the safety of a petitioner or a 

member of a petitioner’s household. Upon a showing of 

domestic or family violence by a preponderance of the evidence, 

the court shall grant relief necessary to bring about a cessation of 

the violence or the threat of violence.

Ind. Code § 34-26-5-9(f). We have also noted the “significant ramifications of 

an improperly granted protective order[,]” which can pose “a considerable 

threat to the respondent’s liberty.” Barger v. Barger, 887 N.E.2d 990, 993-94 

(Ind. Ct. App. 2008). “For example, at the state level, violation of the trial 

court’s protective order is ‘punishable by confinement in jail, prison, and/or a 

fine.’” Id. at 993 (quoting Ind. Code § 34-26-5-3).

[12] Here, the trial court concluded that C.S. committed stalking against T.K., not 

based on any single allegation, but rather three separate allegations that it found 

to be true. C.S. argues that all of their encounters appear to have been by 

“chance” or “coincidence” and that “[e]ach time T.K. saw C.S. it was in a 

public setting where both parties had a legitimate reason to be present.” Brief of 

Appellant at 9. We therefore address each allegation in turn. 

[13] The first allegation occurred at a Panera Bread restaurant three to four months 

before T.K. filed her petition. T.K. testified that she was eating lunch with her 

mother when she saw C.S. enter the restaurant with another person and order 
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food to go. T.K. affirmed that C.S. did not approach her or say anything to her 

and simply left the restaurant after receiving his order. Tr., Vol. II at 6. Aside 

from the fact that C.S. was familiar with T.K.’s patrol car that was parked in the 

parking lot, see App. of Appellant at 6, T.K. did not present any evidence that 

C.S. “knowingly or intentionally follow[ed] or pursu[ed]” her into the 

restaurant, Ind. Code § 35-45-10-3. Because the definition of stalking excludes 

“statutorily or constitutionally protected activity[,]” Ind. Code § 35-45-10-1, 

and C.S. had the right to be in a public place, see, e.g., Kent v. Dulles, 357 U.S. 

116, 125 (1958) (“The right to travel is a part of the ‘liberty’ of which the citizen 

cannot be deprived without due process of law under the Fifth Amendment.”), 

we conclude this allegation cannot support a finding of harassment. 

[14] The second allegation occurred in the parking lot of a U-Haul rental location. 

T.K. stated that she “observed [C.S.] on top of a U-Haul truck . . . using his cell 

phone to video tape [her].” App. of Appellant, Vol. 2 at 6. At the hearing, C.S. 

testified that he occasionally does work for U-Haul and that he had received a 

text from the U-Haul regional manager on Thursday, April 12 at 11:24 pm that 

a U-Haul truck needed repairs. Tr., Vol. II at 17; Exhibits Volume at 13. The 

incident occurred the next day, Friday, April 13, when T.K. was leaving a 

nearby store. C.S. testified that he had climbed on top of a U-Haul truck to 

take pictures of damage and he produced copies of four pictures, including a 

text receipt of a picture showing damage that he had sent the regional manager 

at 10:26 am. Exhibits Volume at 5-8, 13. T.K. stated that she left a store at 

10:16 am and was driving through the parking lot when she saw “a pair of pants 
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with yellow across the bottom of them and I look up and there’s [C.S.] on top 

of the U-Haul van” videotaping her. Tr., Vol. II at 24. 

[15] Once again, T.K. affirmed that C.S. did not approach her or say anything to 

her. Rather, it was T.K. who stopped her vehicle near C.S., as she explained:

I did stop. I wanted him to know that I see you once again 

videotaping me. You know, I’m not invisible. That’s all I say to 

him, I drive away . . . .

Id. at 25. C.S. testified that when T.K. approached him:

I was actually climbing down. I’d already taken my four 

photographs, which you entered [into evidence]. I’d already 

taken the four photographs of the damage of the truck to send to 

the manager of U-Haul and I was actually on my way climbing 

down, paying more attention to climbing down. I actually was in 

shock that she rolled up and stopped approximately ten foot [sic]

from me and waved and said hi. I was actually kind of in shock 

because my main focus, I didn’t have a ladder, to climb up on 

this truck. My main focus was getting down without falling.

Id. at 19. 

[16] Even taking the evidence most favorable to the trial court’s order, as we must, 

see Fox, 45 N.E.3d at 798, and accepting as fact that C.S. was videotaping T.K. 

from the top of the U-Haul, we still cannot conclude this allegation constituted 

harassment. Under certain circumstances, the act of videotaping a police 

officer in public may well be a “constitutionally protected activity[,]” Ind. Code 

§ 35-45-10-2, which is excluded from the definition of harassment, see ACLU of 
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Illinois v. Alvarez, 679 F.3d 583, 595-96 (7th Cir. 2012) (holding Illinois’ 

wiretapping statute criminalizing the audio and video recording of police 

officers violated the clearly established constitutional right to record a police 

officer). But, in any event, there is no evidence that C.S. “knowingly or 

intentionally follow[ed] or pursu[ed]” T.K. into the U-Haul parking lot. Ind. 

Code § 35-45-10-3. To the contrary, the evidence reveals that C.S.’s presence 

was requested by U-Haul, that C.S. was on top of the U-Haul truck to take 

pictures of damage, and that T.K. approached C.S., not the other way around. 

Under these circumstances, we cannot conclude this allegation supported a 

finding of harassment. 

[17] The third and final allegation occurred at the post office on April 20, 2018. 

T.K. testified that C.S. was not in the post office when she entered but that as 

she exited, C.S. “rushed up behind me in an aggressive fashion.” Tr., Vol. II at 

4. Again, the only evidence that C.S. may have known T.K. was present in the 

post office was C.S.’s purported familiarity with T.K.’s police car. But despite 

that, and evidence that C.S. has had a post office box at that location for over 

ten years, Exhibits Volume at 10-11, we conclude that T.K.’s testimony that 

C.S. “rushed up behind [her] in an aggressive fashion[,]” Tr., Vol. II at 4, is, for 

purposes of our standard of review, evidence of impermissible contact. See Ind. 

Code § 35-45-10-3 (impermissible contact “includes but is not limited to 

knowingly or intentionally following or pursuing the victim”). 

[18] Thus, our review of the record reveals there was sufficient evidence to establish 

harassment on only one of the three occasions alleged in T.K.’s petition. As 
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noted above, “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 (emphasis added). 

Although we accept T.K.’s testimony that she was “afraid[,]” tr., vol. II at 5, a 

single incident of harassment is insufficient to support a finding of stalking. See 

Johnson v. State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999) (concluding “the 

term ‘repeated’ in Indiana’s anti-stalking law means ‘more than once’”), trans. 

denied. We therefore conclude C.S. has demonstrated prima facie error and the 

evidence was insufficient to support a finding of stalking and the issuance of an 

order for protection.

Conclusion

[19] Concluding there was insufficient evidence presented at the hearing to support 

the trial court’s issuance of a protective order, we reverse.

[20] Reversed. 

Riley, J., and Kirsch, J., concur.