A.K., Appellant-Respondent v. M.H., Appellee-Petitioner (2025)

MEMORANDUM DECISION

Case Summary

[1] M.H. and A.K. (collectively, the Men) are relatives and neighbors who have not been on good terms since about 2015. In the spring of 2025, M.H. sought and obtained a protective order against A.K. On appeal, A.K. challenges the sufficiency of the evidence supporting issuance of the protective order.

[2] We affirm.

Facts & Procedural History

[3] A.K. lives in Gosport on property owned by S.K., his grandmother. M.H. owns and lives on adjacent property with his wife, S.H. The Men have been neighbors for over twenty years and are related by marriage: S.H. is A.K.’s aunt and S.K.’s daughter.

[4] The Men originally had a good relationship, but that began to sour around 2015 when A.K. accused M.H. of damaging his mailbox. A.K. also had a falling out with most of his family that Christmas. A.K. confronted his own father and M.H. in February 2016, when they were pumping out M.H.’s septic system and the contents were coming onto A.K.’s driveway. This led to a heated argument. Then in 2017, A.K. blamed M.H. for instigating a complaint that was filed against A.K. by another family member.

[5] After the 2017 complaint was filed, “things went really south[.]” Transcript at 9. Twice that year A.K. threatened to kill M.H. He also directed other negative conduct toward M.H. that included “countless times” throughout the following years where he would “chase [M.H.] down the road” in a vehicle or drive by and yell obscenities at M.H. and “flip [him] off.” Id.

[6] In late-February 2025, A.K. came to believe that his cat, which he had to euthanize, had been shot by M.H. with a pellet gun.¹ He then posted a sign near the property line that read, “THX LOW LIFE MFR'S 4 SHOOTING MY PET. F-U”. Exhibits Vol. at 6. The sign was accompanied by a litter box and cat food.

[7] Thereafter, in mid-March, A.K. chased M.H. down the road in a flatbed wrecker. M.H. explained at trial, “I don't mean he just lagged behind, he was, you know, a foot or two or three from my bumper and I kept trying to speed up to get away ․ I believe he's trying to like, draw a response or, or get into some kind of confrontation which I won't do.” Transcript at 10. This was the most recent of several incidents of A.K. chasing M.H. while driving.

[8] Then on the evening of April 10, A.K. used a front loader along the undefined property line and “completely destroyed” the ground. Id. at 9. In about a forty-foot stretch, A.K. created “muddy furrows” and “giant dirt clods” in areas where M.H. had maintained the grass for over twenty years. Id. at 14-15. Shortly thereafter, while M.H. was inside his barn, M.H. saw A.K. come “relatively close” to the barn, walking toward but not on M.H.’s property. Id. at 9. M.H. then heard multiple gunshots. This scared M.H., and he believed that these were “acts of aggression” and that A.K. was either trying to “incite conflict” with or harass M.H. Id. at 15.

[9] M.H. and S.H. contacted the local sheriff's department the next morning. The responding deputy advised them of the protective-order process, and they immediately pursued that path. That same day, the trial court issued an ex parte order for protection against A.K. and in favor of M.H., which order was later renewed.

[10] On June 9, 2025, the trial court held an evidentiary hearing. M.H. testified consistent with the facts as set out above. He also explained that “over the years all the different instances” had caused him to feel harassed and that he “just want[ed] to live in peace.” Id. at 28. In addition to the events of April 10 involving the front loader and the gunshots, M.H. testified that A.K. had been “[f]airly regularly” yelling obscenities and flipping him off up until the issuance of the ex parte order. Id. at 29. M.H.’s testimony also established that the gunshots on April 10 were fired from “very close” to M.H.’s property and not at A.K.’s shooting range. Id. at 26. M.H. described the events of April 10 as “kind of scary.” Id. at 10. And he testified that things had been “peaceful” since issuance of the ex parte order: “I don't have to look over my shoulder when I go out the door.” Id. at 28.

[11] S.H. testified briefly and noted witnessing the property damage, hearing the gunshots, and being informed by M.H. whenever he was “chased down the road” or yelled at by A.K. Id. at 30. She described A.K.’s behavior toward M.H. as “very upsetting” and opined that M.H. was being harassed. Id.

[12] A.K. testified in his own defense and described M.H. as the instigator, “tr[ying] to provoke [A.K.] any way that he can.” Id. at 42. He denied ever yelling obscenities at M.H. or chasing him while driving. Further, A.K. claimed that he was using the front loader to widen the driveway and that he shot his pistol at his shooting range after the front loader ran out of fuel. Regarding the driving incident in March, A.K. acknowledged following behind M.H. for about one and one-half miles, but he claimed that M.H. “kept slamming on the brakes and acting like a fool.” Id. at 48.

[13] In rebuttal, M.H. testified:

I just, you know, it's going to come down to what he said versus what I said. And, you know, so many incidents that have happened over the years, can't be documented or anything so it just comes down to, to the testimony. Uh, you know, I can sit here and say I didn't do what [A.K.] says I did. I know I didn't shoot his cat and I don't drive the way he said that I was driving that day. But, I mean I guess that's not for me to decide is it? So, um, you know, again, if it can be as peaceful as it's been for the last month or six weeks, um, from here on out, great. I hope that's the way it goes. But that's why we've done what we've done because we just figured that was the only way to get that done. I have no issue with [A.K.] living back there. [A.K.]’s worked on my own vehicles, he's probably one of the best mechanics I know. But I would never shoot his cat. And I wouldn't threaten him. I remember the sewage incident. It happened one time and I quit and yet he raised a stink the whole way. So, you know, I do everything I can do to keep the peace. I don't, I don't aggravate, I don't cause trouble, I don't do any of that. I don't flip him off and I don't speak. I just figure it's better that way. I'm, I'm more than twenty years older than him. No, not quite but I'm close. And I just, you know, I'm not a fighter. I don't want to fight. I just want to live in peace. I want to go to work, come home and cut the grass, barbeque some food and drink some beer. That's it.

Id. at 53.

[14] The trial court took the matter under advisement at the conclusion of the hearing, noting that “[t]his is an extraordinarily difficult case.” Id. at 55. Two days later, the trial court issued the protective order, finding in part that A.K. “represents a credible threat to the safety of [M.H.]” and that M.H. had shown by a preponderance of the evidence that “repeated acts of harassment had occurred sufficient to justify the issuance of this Order.” Appendix at 31.

[15] A.K. now appeals. Additional information will be provided below as needed.

Standard of Review

[16] When a party appeals a trial court's judgment entering a protective order, we “apply 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.” S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023); see also Ind. Trial Rule 52(A). “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., 211 N.E.3d at 497. The party appealing the issuance of the protective order must generally establish that the trial court's findings are clearly erroneous, meaning a review of the record leaves us firmly convinced that a mistake has been made. See J.T. v. A.H., 255 N.E.3d 512, 517 (Ind. Ct. App. 2025), trans. denied.

[17] However, where, as here, an appellee fails to file an appellate brief, we apply a less stringent standard of review and may reverse upon a showing of prima facie error. See H.R. v. M.R., 262 N.E.3d 915, 920 (Ind. Ct. App. 2025). “Prima facie is defined as at first sight, on first appearance, or on the face of it.” Id. (internal quotations omitted). This rule relieves us of the burden of controverting the arguments advanced in favor of reversal, as that burden properly rests with the appellee. Id.

Discussion & Decision

[18] Indiana law permits a person who has been subjected to harassment to petition for a protective order against one who has “committed repeated acts of harassment against the petitioner.” Ind. Code § 34-26-5-2(b). To justify issuance of a protective order, the petitioner must prove, by a preponderance of the evidence, not only that harassment has occurred but also that the respondent “represents a credible threat to the safety of the petitioner or a member of [the] petitioner's household.” I.C. § 34-26-5-9(h). Further, a court may not deny relief to a petitioner “solely because of a lapse of time between an act of ․ harassment and the filing of a petition.” I.C. § 34-26-5-13.

[19] Harassment, for these purposes, is defined as:

[C]onduct directed toward a victim that includes, but is not limited to, repeated or continuing impermissible contact:

(1) that would cause a reasonable person to suffer emotional distress; and

(2) that actually causes the victim to suffer emotional distress.

I.C. § 34-6-2.1-80(a) (formerly I.C. § 34-6-2-51.5).² The statue expressly excludes from the definition “statutorily or constitutionally protected activity, such as lawful picketing pursuant to labor disputes or lawful employer-related activities pursuant to labor disputes.” I.C. § 34-6-2.1-80(b). Further, “impermissible contact” includes, but is not limited to, following or pursuing the victim or communicating with the victim. J.T., 255 N.E.3d at 517 (citing I.C. § 35-45-10-3).

[20] A.K. initially contends that M.H. failed to present sufficient evidence of repeated impermissible contact rising to the level of harassment. He characterizes the evidence as showing at most “sporadic neighbor disputes spanning many years.” Appellant's Brief at 11. Though he had made death threats toward M.H., A.K. notes that those occurred nearly eight years prior to the hearing. The “only routine conduct” since then, according to A.K., included “isolated gestures” and some yelling of obscenities while driving past M.H. Id. Regarding the incident involving the front loader, A.K. claims that he was using it to grade his driveway and that the property-line dispute had never been settled by a survey. Finally, regarding chasing M.H. in a vehicle, A.K. notes that there was one alleged incident in March 2025 and that M.H. “admitted that [A.K.] had only followed him a handful of times over the course of a decade.” Id. at 12.

[21] We reject A.K.’s invitation to reweigh the evidence. While it is true that he had not made a verbal threat to kill M.H. since 2017, when A.K. did it twice, he thereafter continued to taunt M.H. for years. He would drive by M.H.’s home and yell obscenities and make rude gestures on a relatively regular basis and he chased M.H. in a vehicle several times. The evidence shows that A.K.’s negative conduct toward M.H. ramped up significantly in early 2025. A.K. placed a sign in his yard blaming M.H. for shooting his cat. Shortly thereafter, in March, he chased M.H. for over a mile, following M.H. at a dangerously close distance in a flatbed wrecker. Then on the evening of April 10, A.K. used his front loader along the disputed property line, creating muddy furrows and giant dirt clods for about forty feet. Minutes later, he began repeatedly shooting a pistol near M.H.’s barn, with M.H. inside the barn. This scared M.H., and he believed A.K.’s conduct that evening was intended as acts of aggression.

[22] The evidence, taken as a whole, supports the trial court's finding of harassment. That is, A.K. engaged in repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and did, in fact, cause M.H. emotional distress.³

[23] A.K. also challenges the trial court's finding that he represents a credible, present threat to M.H.’s safety. Noting again that he had not made death threats against M.H. since 2017, A.K. argues that the “sporadic disagreements and ambiguous conduct” in recent years were insufficient to objectively establish that M.H. had a reasonable fear of A.K. at the time of the hearing. Appellant's Brief at 9. He also notes that S.H. testified that she did not fear that A.K. would harm her.⁴

[24] Once more, A.K.’s request to reweigh the evidence is not well taken. The evidence objectively shows a reason for M.H. to be concerned about his own safety at the time of the hearing. Leaving aside the death threats, which we agree were stale (though not entirely irrelevant), the evidence establishes that A.K.’s animus toward M.H. continued for years with accompanying aggressive conduct. His most threatening and recent conduct included chasing M.H. down the road in a flatbed wrecker at an unsafe distance and, weeks later, repeatedly firing a pistol while near the property line (not at his firing range) and close to the barn where M.H. was inside. This shooting occurred after A.K.’s unusual conduct with his front loader, also near the property line.

[25] Considering the totality of A.K.’s conduct, the trial court could reasonably conclude that the threat he posed to M.H. at the time of the hearing was both plausible and believable. Cf. S.H. v. D.W., 139 N.E.3d 214, 220 (Ind. 2020) (reversing based on lack of a present, credible threat where a single act of violence occurred two years prior “with no follow-up act, no threat that the violence will recur, and no other reasonable grounds to believe that Sam presently intends to harm Diane or her family”).

[26] Our Supreme Court has instructed:

In close cases ․. when the evidence could lead a court to grant or deny a petition ․ the trial court is the one to make that 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.

S.D., 211 N.E.3d at 498.

[27] We do not find this to be a particularly close case on appeal, and the trial court acted well within its discretion in weighing the evidence and assessing the credibility of the witnesses. A.K. has failed to establish prima facie error.

[28] Judgment affirmed.

FOOTNOTES

1.   At trial, M.H. denied shooting the cat.

2.   This definition is in line with that in our criminal code. See Ind. Code § 35-45-10-2.

3.   A.K. directs us to H.R., 262 N.E.3d 915, as support for his claim that arguments and interpersonal disputes are insufficient to establish harassment. That case, however, involved a young adult seeking a protective order against her father where she “admitted that she had never claimed that he harassed her, but simply that he was trying to intervene too much in her life and control her.” Id. at 922. Further, there was no objective evidence of threats to the daughter's safety due to the father's controlling conduct, and she never even implied that she feared actual physical harm. Id. at 921-22.

4.   S.H. testified that none of A.K.’s conduct was directed toward her. While she did not testify as to whether she feared for M.H.’s safety, she did testify that A.K.’s conduct was “very upsetting.” Transcript at 30.

Altice, Chief Judge.

May, J. and Foley, J., concur.