MACKALL v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Timothy Mackall appeals, pro se, his convictions of Level 5 felony stalking, Level 6 felony stalking, six counts of Class A misdemeanor invasion of privacy, and two counts of Class B misdemeanor harassment. He purports to raise four issues, but we address only the dispositive issues of (1) whether he has waived his challenges to his criminal convictions by failing to comply with the Indiana Rules of Appellate Procedure, and (2) whether his challenges to a prior protective order are barred by the doctrine of res judicata.

[2] We affirm.

Facts and Procedural History

[3] Mackall was in a three-month relationship with Kathryn Stuart which ended on November 4, 2021, when Stuart asked Mackall to leave her home and he refused. Mackall continued to attempt contact with Stuart repeatedly, telling Stuart he refused to accept that the relationship had ended. On November 18, Stuart filed a petition for a protective order against Mackall. On December 21, Mackall filed a motion to dismiss the petition. On December 22, the court held a hearing on the petition for protective order at which Mackall failed to appear. That same day, the court denied Mackall's motion to dismiss and issued a protective order prohibiting Mackall from “any contact[,]” “directly or indirectly[,]” with Stuart and four other named individuals. Ex. v. V at 70, 71. The order was to expire on December 22, 2023. On February 2, 2022, Mackall filed a motion to set aside the protective order, and on February 8 the trial court granted Stuart's motion to strike that motion to set aside.

[4] On March 1, 2022, Mackall filed an appeal of the December 22, 2021, protective order and the February 8 order striking his motion to set aside the protective order. On March 9, the State filed a motion to dismiss that appeal as untimely. On April 4, 2022, a panel of this Court dismissed Mackall's appeal with prejudice. T.M. v. K.S., No. 22A-PO-490 (Ind. Ct. App. Apr. 4, 2022).

[5] On March 16, while the appeal was pending, Mackall filed in the trial court a motion to dismiss the protective order and correct the record. The trial court denied that motion on March 17. On April 5, Mackall filed a motion to correct error regarding the March 17 order and a motion to dismiss the protective order for lack of subject matter jurisdiction. The trial court denied Mackall's motions, and he filed an appeal of that denial on April 29, 2022. A panel of this Court subsequently issued a memorandum decision affirming the trial court orders denying Mackall's motion to correct error and motions to dismiss. Mackall v. Stuart, No. 22A-PO-981 (Ind. Ct. App. Sept. 27, 2022) (mem).

[6] Throughout the beginning of 2022, Mackall repeatedly and consistently contacted and harassed Stuart, her employer and co-workers, and her friends and family. On May 19, 2022, the State charged Mackall with Level 5 felony stalking and six counts of Class A misdemeanor invasion of privacy related to Stuart. The information was subsequently amended several times before trial to add charges and dismiss charges. Mackall was ultimately tried before a jury on one count of Level 5 felony stalking, one count of Level 6 felony stalking, nine counts of Class A misdemeanor invasion of privacy, and fifteen counts of Class B misdemeanor invasion of privacy. On June 26, the jury found Mackall guilty as charged on all twenty-six counts. Due to Double Jeopardy concerns, the trial court entered judgments of conviction for only one count of Level 5 felony stalking, one count of Level 6 felony stalking, six counts of Class A misdemeanor invasion of privacy, and two counts of Class B misdemeanor harassment. Following a sentencing hearing, the trial court imposed an aggregate sentence of fifteen years. This appeal ensued.

Discussion and Decision

[7] Mackall brings this appeal pro se.

It is well settled that pro se litigants are held to the same legal standards as licensed attorneys. Twin Lakes Reg'l Sewer Dist. v. Teumer, 992 N.E.2d 744, 747 (Ind. Ct. App. 2013). This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so. Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).

Lowrance v. State, 64 N.E.3d 935, 938 (Ind. Ct. App. 2016), trans. denied.

[8] Indiana Appellate Rule 46(A)(6)(a) requires that an appellant's brief contain a statement of facts which must “be supported by page references to the Record on Appeal or Appendix.” When a party refers to facts without citation to the record in support, “we need not consider those facts.” Reed v. City of Evansville, 956 N.E.2d 684, 688 n.1 (Ind. Ct. App. 2011), trans. denied. Indiana Appellate Rule 46(A)(8)(a) requires that each contention in an appellant's brief must be “supported by cogent reasoning” and “by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal.” When an appellant provides no cogent argument for a contention, that contention is waived. See, e.g., Burnell v. State, 110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018) (noting the presentation of the appellant's contentions must contain a clear showing of how the issues and contentions relate to the particular facts of the case under review, and we will not review undeveloped arguments). Similarly, when an appellant provides no citation to legal authority supporting his contentions, those contentions are waived. E.g., Shields v. Town of Perrysville, 136 N.E.3d 309, 312 n.2 (Ind. Ct. App. 2019).

[9] Thus, under our Appellate Rules, “[i]t is not sufficient for the argument section that an appellant simply recites facts and makes conclusory statements without analysis or authoritative support.” Kishpaugh v. Odegard, 17 N.E.3d 363, 373 n.3 (Ind. Ct. App. 2014). This rule “prevents the court from becoming an advocate when it is forced to search the entire record for evidence in support of [a party's] broad statements.” Lane Alan Schrader Tr. v. Gilbert, 974 N.E.2d 516, 521 (Ind. Ct. App. 2012) (citing Keller v. State, 549 N.E.2d 372, 373 (Ind. 1990)).

[10] Here, Mackall's three and a half pages entitled “Statement of the Case” and eight additional pages entitled “Statement of Facts” consist of many alleged facts and few citations to the record. Appellant's Br. at 9, 13. Rather, the majority of the alleged facts are unsupported by citation to anything at all. Therefore, we do not consider those facts. See Reed, 956 N.E.2d at 688 n.1.

[11] In addition, Mackall's twenty-two pages of argument consist mostly of bald assertions of additional fact without citation to the record, conclusory legal statements without citation to relevant legal authority, and incoherent and lengthy discussions of issues not properly before the court. Mackall's brief is nonsensical and rife with random legalese untethered to any relevant legal arguments. In short, his brief is incomprehensible to the point of evading review.

[12] Moreover, to the extent there are any discernable legal arguments in Mackall's brief, they relate not to his criminal convictions that are the only proper subject of this appeal, but to the propriety of the 2021 civil protective order. However, Mackall already appealed the issuance of that protective order, and this Court affirmed it. Mackall v. Stuart, No. 22A-PO-981 (Ind. Ct. App. Sept. 27, 2022) (mem).¹ To the extent Mackall raised any of these same arguments in that appeal, he is barred from relitigating them by the doctrine of res judicata, and to the extent he failed to raise any of these arguments in that appeal, they are procedurally defaulted. See, e.g., Miller v. Patel, 212 N.E.3d 639, 646 (Ind. 2023) (noting doctrine of res judicata, or claim preclusion, bars claims that were actually litigated in the prior action and also claims that could have been litigated). Mackall may not avoid procedural default by trying to raise such arguments for the first time in an appeal of an entirely separate criminal judgment. Such an attempt to obtain a second bite at the apple is an impermissible collateral attack. Cf. Montgomery v. State, 878 N.E.2d 262, 267 (Ind. Ct. App. 2007) (holding that a defendant may not raise an “impermissible collateral attack” on the validity of a no-contact order in an appeal from the revocation of probation for violating the terms of that no-contact order).

Conclusion

[13] Mackall has waived his challenges to his criminal convictions by failing to provide citations to the record, citations to relevant legal authority, and cogent argument in compliance with Rule 46 of the Indiana Rules of Appellate Procedure. To the extent he seeks to challenge the 2021 civil protective order, his claims are procedurally barred. Therefore, we affirm.

[14] Affirmed.

FOOTNOTES

1.   As shown by our Odyssey case management system, Mackall did not seek transfer to the Indiana Supreme Court.

Bailey, Judge.

Tavitas, J., and Kenworthy, J., concur.