Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

JOHN R. McKAY

Hickam & Lorenz, P.C.

Spencer, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CLOVIS SMITH, )

)

Appellant-Respondent, )

)

vs. ) No. 07A01-1111-PO-518

)

ALEXANDRA RYAN, )

)

Appellee-Petitioner. )

APPEAL FROM THE BROWN CIRCUIT COURT

The Honorable Douglas E. Van Winkle, Magistrate

Cause No. 07C01-1109-PO-441

May 25, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
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Clovis Smith (“Smith”) appeals from the trial court’s issuance of an order for 

protection. Smith presents the following issue for our review: whether the trial court erred 

by finding and concluding that Smith was Brady disqualified.

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We affirm.

FACTS AND PROCEDURAL HISTORY

Smith and Alexandra Ryan (“Ryan”) lived together in Owen County and are the 

parents of one child. On September 16, 2011, Smith and Ryan engaged in a verbal 

altercation during the course of which Smith waved a firearm and blocked Ryan’s exit from 

the house. The parties summoned Smith’s father, who lived next door. Smith’s father spoke 

with both Smith and Ryan and arranged for Ryan to leave the house with the parties’ minor 

child.

On September 20, 2011 Ryan filed a petition for order of protection against Smith. A 

hearing was held at the conclusion of which the trial court granted the order of protection and 

determined that Smith was Brady disqualified. Smith now appeals.

DISCUSSION AND DECISION

We note at the outset that Ryan has not filed an appellee’s brief. When the appellee 

fails to file a brief, we need not undertake the burden of developing an argument on the 

appellee’s behalf. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). We will 

reverse the trial court’s judgment if the appellant’s brief presents a case of prima facie error. 

 

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“Brady disqualified” means that a person is disqualified under criteria set forth in the Brady Handgun 

Violence Prevention Act from purchasing a firearm. 18 U.S.C. § 921. 
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Id. “Prima facie error in this context is defined as, at first sight, on first appearance, or on the 

face of it.” Id. (citation and quotation marks omitted). Where an appellant does not meet this 

burden, we will affirm. Id.

We have stated the following about proceeding under the Indiana Civil Protection 

Order Act (“CPOA”):

The Indiana Legislature has indicated that the CPOA “shall be construed to 

promote the: (1) protection and safety of all victims of domestic or family 

violence in a fair, prompt, and effective manner; and (2) prevention of future 

domestic and family violence.” Ind. Code § 34-26-5-1; Aiken v. Stanley, 816 

N.E.2d 427, 430 (Ind. Ct. App. 2004). Indiana Code section 34-26-5-2(a) 

provides “A person who is or has been a victim of domestic or family violence 

may file a petition for an order of protection against a: (1) family or household 

member who commits an act of domestic or family violence.” “Domestic or 

family violence” means “[a]ttempting to cause, threatening to cause, or causing 

physical harm to another family or household member” or “[p]lacing a family 

or household member in fear of physical harm.” Ind. Code § 34-6-2-34.5 (1), 

(2).

Generally, a trial court has discretion to grant protective relief according to the 

terms of the CPOA. See Ind. Code § 34-26-5-9. However, a finding by the 

trial court that domestic or family violence has occurred sufficient to justify the 

issuance of an order for protection means that the respondent represents a 

credible threat to the safety of the petitioner. Ind. Code § 34-26-5-9(f). 

Therefore, upon a showing of domestic or family violence by a preponderance 

of the evidence, the trial court “shall grant relief necessary to bring about a 

cessation of the violence or the threat of violence.” Id. 

Moore v. Moore, 904 N.E.2d 353, 357-58 (Ind. Ct. App. 2009). 

In the present case, particular attention was given to Smith’s and Ryan’s testimony 

about the incident giving rise to the filing of the petition for order of protection. The trial 

court indicated to the parties that Ryan’s testimony was the more credible of the two. Ryan 

and Smith were the parents of an infant and resided together. The two began a verbal 
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altercation that escalated to the point that Smith waved his handgun. Viewed consistently 

with our standard of review, the evidence supports the trial court’s decision to order the 

Brady disqualification. In granting the “relief necessary to bring about a cessation of the 

violence or the threat of violence,” the trial court was within its discretion to impose the 

Brady disqualification where the act of domestic violence giving rise to the protective order 

involved the use of a handgun by the respondent. Smith argues that the order is overbroad in 

that Ryan did not specifically request that Smith be Brady disqualified. However, the trial 

court exercised its discretion based upon the evidence presented at the hearing. We find no 

abuse of that discretion here. 

Affirmed.

BAKER, J., and BROWN, J., concur.