M.S., Appellant-Petitioner v. P.R., Appellee-Respondent (2025)

MEMORANDUM DECISION

Case Summary

[1] After working together on a political campaign, M.S. sought a protection order against P.R. The trial court found that, although P.R. had several impermissible contacts with M.S., P.R.’s conduct was constitutionally protected and, thus, did not meet the statutory definition of stalking or harassment. The trial court further found that P.R. presented no credible threat to M.S.

[2] M.S. appeals and argues that the trial court erred by finding that P.R.’s conduct was constitutionally protected. We, however, need not address this argument because M.S. has not carried her burden of proving that P.R. presented a credible threat to M.S. Because P.R. did not present a credible threat to M.S., the trial court did not err by denying the protection order. We, accordingly, affirm.

Issue

[3] M.S. raises two issues, which we consolidate and restate as whether M.S. has carried her burden of proving that the trial court erred by denying the protection order.

Facts

[4] In early 2024, M.S., a psychologist, and P.R. were volunteering on the election campaign committee of a candidate for the Indiana State Senate (“Candidate”). P.R. was the campaign manager and was also involved in public relations with the local Republican Party. During the primary season, M.S. and P.R.’s relationship soured. On April 8, 2024, M.S. asked P.R. to keep all communications between them in a group setting and to not contact her individually. P.R., however, occasionally contacted M.S. individually regarding the campaign.

[5] P.R. began to suspect that M.S. was “sabotag[ing]” the campaign due to several errors committed regarding the campaign website, signage, and fundraising. Tr. Vol. II p. 85. P.R. began spreading rumors that M.S. was a “Democratic plant[.]” Id. at 28. In mid-April 2024, P.R. attempted to have M.S. removed from a political event by speaking to event organizers, but M.S. was eventually permitted to remain. M.S. also received an email that month from Candidate, and M.S. believed P.R. sent the email by accessing Candidate's email account. Sometime in early April 2024, M.S. was removed from the election campaign committee for performance-related issues.

[6] On April 30, 2024, outside the school that hosted the Gary State of the City address, P.R. saw M.S. handing out leaflets, although the campaign had not asked her to do so. P.R. suspected that M.S. was handing out leaflets regarding a political opponent. P.R. took photographs of M.S. from a distance, which he showed to Candidate. Candidate later confirmed that the leaflets related to an opposing candidate.

[7] In May 2024, P.R. emailed M.S. regarding a project they had worked on involving Bulldog Trucking. Soon after, P.R. contacted M.S.’s employer anonymously and alleged that M.S. was “unstable[.]” Id. at 37. P.R. testified that he formed this belief because M.S. was “dropping F-bombs and being very disrespectful” to the chairperson during a recent party meeting and had previously assaulted P.R. in his car after a night of drinking. Id.

[8] Later that month, P.R. removed political signs from M.S.’s yard without permission to enter her property. P.R. testified that he removed hundreds of signs across the city, at the request of several party candidates, because the campaigns considered the signs to be property of the campaigns. The campaigns sought to reuse the signs during the general election rather than have people throw them away.

[9] On May 28, 2024, M.S. petitioned for an ex parte protection order against P.R., in which M.S. alleged that P.R. committed acts of stalking and harassment against her. The trial court issued an ex parte protection order against P.R. the next day; and the trial court held hearings on the protection order on July 22 and 26, 2024, where M.S. and P.R. each appeared pro se. M.S. testified that she felt threatened by P.R. but admitted that her petition did not allege that he physically harmed her. M.S. was fearful because P.R. carried a firearm, although the firearm used only rubber bullets. P.R. did not dispute the contacts with M.S. but testified that, in regard to most of the contacts, P.R. was “operating within [his] professional ․ capacity of PR manager for the party and campaign manager for [Candidate's] committee.” Id. at 33. P.R. further testified that he did not desire to have any contact with M.S.

[10] On July 26, 2024, the trial court issued an order denying M.S.’s petition for a protection order. The trial court issued findings of fact and conclusions thereon as follows:

26. [M.S.] failed to prove that [P.R.’s] actions and conduct relating to seeking her removal from the campaign committee and local political party meetings constitute stalking or harassment by a preponderance of the evidence.

* * * * *

28. [M.S.] did prove that [P.R.’s] acts of taking her picture were, to [M.S.] and a reasonable person, inappropriate contact that would cause [M.S.] emotional distress and was intended to intimidate [M.S.].

29. However, [P.R.] also proved that his actions of taking [M.S.’s] picture directly related to his efforts to remove her from the campaign committee and local political party meetings as an exercise of his constitutional rights of assembly and speech as an affirmative defense by a preponderance of the evidence.

30. [M.S.] failed to prove [P.R.’s] efforts to obtain access to an email account of the political candidate the parties were assisting constituted stalking or harassment by a preponderance of the evidence.

31. [M.S.] failed to prove [P.R.’s] text to her regarding the Bulldog Trucking contact he received would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened or suffer emotional distress by a preponderance of the evidence.

32. [P.R.] entered the curtilage of [M.S.’s] residence to retrieve political campaign signs for the candidate they were trying to assist and three other political candidates of the same party.

33. [P.R.] did not obtain, or seek to obtain, [M.S.’s] permission to enter onto her curtilage to remove the signs before doing so.

34. [P.R.] removed the political signs from [M.S.’s] residence and several other residences throughout the City of Gary.

35. [M.S.] did not prove that [P.R.] removed the political signs in front of her residence to target or ‘single out’ [M.S.] specifically.

36. [M.S.] failed to prove [P.R.’s] removal of the political signs from the curtilage of her residence as part of a larger plan to remove signs through the City of Gary would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened or suffer emotional distress by a preponderance of the evidence under these unique facts and circumstances.

37. [M.S.] did prove, by a preponderance of the evidence, that [P.R.’s] telephonic contact directly with [M.S.’s] employer was, to [M.S.] and a reasonable person, an inappropriate contact causing [M.S.] emotional distress and was intended to and did intimidate [M.S.].

38. Most, if not all, of any attempt to ‘legitimize’ [P.R.’s] attempt to contact [M.S.’s] employer was lost by the nature of his attempt to contact the employer through anonymous means.

39. [M.S.] failed to prove [P.R.] represents a credible threat to the safety of [M.S.] or a member of [M.S.’s] household by a preponderance of the evidence.

40. Moreover, [M.S.] only proved one incident, i.e., [P.R.] anonymously contacting her employer, would otherwise fit within the statutory definition of stalking or harassment by a preponderance of evidence unrelated to a constitutionally protected activity.

41. Accordingly, [M.S.] is not entitled to an order for protection:

a. Based on harassment as she failed to prove by a preponderance of the evidence:

i. [P.R.] impermissibly contacted her in a repeated or continuing manner that would cause her and a reasonable person to suffer emotional distress for non-constitutionally protected political activity,

ii. [P.R.] represents a credible threat to the safety of [M.S.] or a member of [M.S.’s] household; or

b. Based on stalking as she failed to prove by a preponderance of the evidence [P.R.] committed repeated or continuing acts that would cause her and [a] reasonable person to feel terrorized, frightened, intimidated, or threatened for non-constitutionally protected political activity.

Appellant's App. Vol. II pp. 55-57. M.S. now appeals.

Discussion and Decision

[11] M.S. argues that the trial court erred by denying M.S.’s petition for a protection order. Because we are not persuaded that M.S. proved by a preponderance of the evidence that P.R.’s conduct constituted a credible threat to M.S., we affirm the trial court's ruling.

I. Standard of Review

[12] We review the trial court's ruling on a protection order petition by applying

a two-tiered standard of review—we consider whether the evidence supports the court's findings and, if so, whether those findings support the judgment. In making these determinations, we neither reweigh the evidence nor determine the credibility of witnesses, and we consider only the evidence favorable to the trial court's decision.

S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023). In conducting this review, we note our Supreme Court's instruction that

[i]n close cases ․ the trial court is the one to make th[e] call. Indeed, our trial courts are far better than appellate courts at weighing evidence and assessing witness credibility. And this is particularly true in protective order cases, where our trial judges see and hear the parties interact as they relay details about intensely personal, traumatic events. Our review of this evidence on appeal is far less clear from our vantage point in the far corner of the upper deck.

Id. at 498.

[13] Because M.S. is appealing from a negative judgement, “we will reverse only if we are convinced that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the trial court.” Costello v. Zollman, 51 N.E.3d 361, 367 (Ind. Ct. App. 2016) (citing Flash v. Holtsclaw, 789 N.E.2d 955, 959 (Ind. Ct. App. 2003), trans. denied), trans. denied. But at the same time, we note that P.R. has not filed an appellee's brief in this matter. “Under such circumstances, we will not develop an argument for the appellee[ ] but instead will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.” N.B. v. L.B., 251 N.E.3d 1117, 1120 (Ind. Ct. App. 2025) (citation omitted). “Prima facie means at first sight, on first appearance, or on the face of it.” Id. (citation omitted). “This rule relieves us of the burden of controverting arguments advanced in favor of reversal where that burden properly rests with the appellee.” M.R. v. B.C., 120 N.E.3d 220, 223 (Ind. Ct. App. 2019) (citation omitted). “In any event, we are still obligated to correctly apply the law to the facts in the record in order to determine whether reversal is required.” Id. (citation omitted).

II. The Indiana Civil Protection Order Act (“ICPOA”)

[14] The purpose of the ICPOA is to promote the: “(1) protection and safety of all victims of domestic or family violence in a fair, prompt, and effective manner; (2) protection and safety of all victims of harassment in a fair, prompt, and effective manner; and (3) prevention of future domestic violence, family violence, and harassment.” Ind. Code § 34-26-5-1.

[15] The ICPOA provides, in relevant part:

(a) A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a:

(1) family or household member who commits an act of domestic or family violence; or

(2) person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner.

(b) A person who is or has been subjected to harassment may file a petition for an order for protection against a person who has committed repeated acts of harassment against the petitioner.

Ind. Code § 34-26-5-2.

[16] “[D]omestic and family violence” includes stalking, as that term is defined by Indiana Code Section 35-45-10-1.¹ Ind. Code § 34-6-2-34.5. That section defines “stalk” 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. The term does not include statutorily or constitutionally protected activity.

Ind. Code § 35-45-10-1.

[17] “Harassment” means

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. Harassment does not include statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.

Ind. Code § 35-45-10-2.

[18] “Impermissible contact” includes” but is not limited to:

(1) Following or pursuing the victim.

(2) Communicating with the victim.

(3) Posting on social media, if the post:

(A) is directed to the victim; or

(B) refers to the victim, directly or indirectly.

Ind. Code § 35-45-10-3.

[19] Not all stalking or harassment justifies a protection order. Subsection 9(h) of the ICPOA provides, in relevant part:

A finding that domestic or family violence or harassment has occurred sufficient to justify the issuance of an order under this section 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 or harassment 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(h) (emphasis added).

[20] Discussing this credible threat requirement, our Supreme Court has explained that “the respondent must pose a threat to a protected person's safety when the petitioner seeks relief.” S.H. v. D.W., 139 N.E.3d 214, 219 (Ind. 2020). In other words, the threat must be a “present threat.” Id. at 220. And this threat must be “viewed objectively”—it must be “plausible or believable.” Id.

Thus, the petitioner must prove, by a preponderance of the evidence, that there are reasonable grounds to believe that the respondent presently intends to harm the petitioner or the petitioner's family. By focusing on the parties’ present situation, the Act not only allows courts to intervene as the parties’ circumstances warrant, but also contemplates that the parties’ relationship can change over time.

Id.

III. The trial court did not err by denying the protection order.

[21] M.S. argues that the trial court erred by finding that P.R.’s act of photographing M.S. constituted constitutionally protected activity and could not constitute stalking or harassment as a matter of law. According to M.S., P.R. engaged in repeated impermissible contacts—photographing her and calling her employer ² —and, thus, P.R. stalked and/or harassed her.

[22] It is well-settled that “we generally avoid addressing constitutional questions if a case can be resolved on other grounds.” Girl Scouts of So. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 254 (Ind. 2013) (citations omitted). Here, we need not determine whether P.R.’s photographing of M.S. was a constitutionally protected activity because the trial court found that P.R. presented no credible threat to M.S., and M.S. has not shown that this determination was erroneous.

[23] P.R. arguably harassed M.S. by calling her work to anonymously report that M.S. was unstable. And P.R. should have respected M.S.’s desire not to be directly contacted once their professional relationship had terminated. Still, P.R. never harmed nor threatened to harm M.S. When he took photographs of M.S., he did so from a distance and in a non-aggressive manner. Only conduct that constitutes a present credible threat warrants the “severe limitations on a restrained person's liberty” that a protection order imposes. S.H., 139 N.E.3d at 217. Because P.R. presented no credible threat to M.S.’s safety, the trial court did not err by denying the protection order.

Conclusion

[24] We sympathize with M.S. regarding the emotional distress caused by P.R.’s conduct. The ICPOA, however, does not provide relief for emotional distress when no violence or threat of violence has occurred. Because the record evidence does not support a finding of a credible threat, the trial court did not err by denying the protection order, and we affirm the trial court's judgment.

[25] Affirmed.

FOOTNOTES

1.   The ICPOA, thus, protects victims, not only of criminal stalking, pursuant to Indiana Code Section 35-45-10-5, but also any stalking that meets the definition of Indiana Code Section 35-45-10-2 and the requirements of the ICPOA.

2.   The trial court found that P.R. did not engage in stalking or harassment by removing the signs from her property, and M.S. does not argue that this finding was erroneous.

Tavitas, Judge.

Altice, C.J., and Brown, J., concur.