LATTIMORE v. M.H. and K.L-H., Appellees-Petitioners. (2022)

MEMORANDUM DECISION

Case Summary

[1] Narion Lattimore (“Lattimore”) appeals the grant of an order of protection against him, in favor of Petitioners, M.H. and his wife, K.L-H. (collectively, “Petitioners”). Lattimore presents the issue of whether sufficient evidence supports the protective order. We affirm in part and reverse in part.

Facts and Procedural History

[2] As the parents of a minor child, Lattimore's girlfriend and M.H. became involved in a custody dispute. In May of 2021, Lattimore, personally and in support of his girlfriend, expressed his anger toward M.H. that arose from parenting issues within this dispute. This expression was communicated through text message contact with M.H.

[3] During May and July, Lattimore and M.H. exchanged numerous text messages, replete with mutual insults. Lattimore's text messages, in particular, were profanity-laced and frequently referenced sexual activities. At one point during the mutual exchange, Lattimore told M.H. to stop texting and threatened to obtain a protective order against M.H. In turn, M.H. asked Lattimore to “lose my number please.” (Exhibits, pg. 27.) Nonetheless, the texting continued. The communication deteriorated to the point that Lattimore wrote to M.H. that Lattimore would “break your f***** legs and make you stomp your own face” and “break every single bone in your body.” (Id. at 26-27.)

[4] Lattimore also texted K.L-H. to tell her that K.L-H. would not “have a husband or father for [her] son.” (Tr. Vol. II, pg. 5.) K.L-H. responded once or twice; on the latter occasion, she asked Lattimore to “stop contacting [her] phone.” (Id. at 9.)

[5] In August of 2021, Petitioners requested a protective order against Lattimore pursuant to the Indiana Civil Protection Order Act, Indiana Code Section 34-26-5-1, et seq. (“the Act”), alleging that Larrimore had committed stalking by repeated acts of harassment. A hearing was conducted on September 9, 2021. On the same date, the trial court issued a protective order against Lattimore. He now appeals.

Discussion and Decision

[6] At the outset, we observe that the Petitioners did not file an appellee's brief. When the appellee fails to file a brief, we will not undertake the burden of developing an argument for the appellee. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse the trial court's judgment if the appellant presents a case of prima facie error. Id. “Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it.” Id. (quotation omitted).

[7] In reviewing the sufficiency of the evidence to support an order for protection, we neither reweigh the evidence nor judge the credibility of witnesses. A.S. v. T.H., 920 N.E.2d 803, 806 (Ind. Ct. App. 2010). We consider only the probative evidence and reasonable inferences supporting the trial court's judgment. Id.

[8] The Act exists 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.” I.C. § 34-26-5-1. Section 34-26-5-9(g) provides in relevant part: “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.”

[9] The definition of “domestic or family violence” includes stalking as defined in Indiana Code Section 35-45-10-1. I.C. § 34-6-2-34.5. The Act authorizes issuance of an order for protection where a petitioner shows stalking occurred, regardless of whether the stalker is a stranger, or a family or household member of the victim. See Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1161 (Ind. Ct. App. 2003).

[10] Here, Petitioners were required to establish by a preponderance of the evidence that Lattimore committed stalking, as alleged. Stalking is defined, in relevant part, as “a knowing or 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.” I.C. § 35-45-10-1. 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.” I.C. § 35-45-10-2. The term “repeated” in the stalking statute means more than once. Johnson v. State, 721 N.E.2d 327, 332-33 (Ind. Ct. App. 1999), trans. denied.

[11] In arguing that there is insufficient evidence to support the order of protection, Lattimore suggests there was mutual and permissible communication between himself and the Petitioners, not leading to either of the Petitioners feeling terrorized, frightened, intimidated, or threatened. He finds the circumstances of this case similar to those in Maurer v. Cobb-Maurer, 994 N.E.2d 753 (Ind. Ct. App. 2013). There, in the midst of a dissolution proceeding, one spouse had been subjected to “constant e-mails and text messaging” from the other spouse. Id. at 755. The Maurer Court concluded that “one could hardly characterize mutual communication between two parties as harassment within the meaning of the stalking statute.” Id. The Court elaborated:

Finally, and most importantly, is the question of the effect of the contacts on [Petitioner] and whether they could—and actually did—cause her to feel terrorized, frightened, intimidated, or threatened. In Andrews, the victim testified that the unwelcome contacts were “disturbing,” “very upsetting,” caused her “emotional distress,” and made her “very concerned” for her safety. Andrews, 956 N.E.2d at 722. But in this case, [Petitioner] offered no testimony at the hearing regarding the effect the contacts had on her. In fact, [Petitioner] offered no testimony at all during the hearing. Where an inquiry is so dependent upon the victim's perception and state of mind—as is the case when issuing a protective order on the grounds of stalking—[Petitioner]’s lack of participation works only to diminish the record and hinder our review.

Id. at 759.

[12] Here, as in Maurer, M.H. offered no testimony at the hearing regarding the effects that the contacts with Lattimore had on him. Lattimore has demonstrated, prima facie, that the trial court erred in granting the protective order in favor of M.H., because it is unsupported by sufficient evidence.

[13] However, K.L-H. testified in more detail:

[M.H.] had contacted [Lattimore]’s child's mother to try to ascertain his character cause we were trying to increase visits. ․ After he had contacted [Lattimore]’s child's mother we get several text messages saying that he's going to break [M.H.]’s legs. Break every bone in his body. I have messages from my phone where I am not going to have a husband or a father for my son. And the last one that was most concerning was I'm not the only one who knows how to look up addresses and phone numbers see you soon. In addition to some of the things he posts on Facebook with guns it was enough to worry me to put in a protective order.

(Tr. Vol. II, pgs. 4-5.) K.L-H. testified that she had asked Lattimore to cease texting her and again addressed her emotional response: “I'm sorry to be tying up the court's time but that's enough to worry me as a mom.” (Id. at 12.)

[14] K.L-H.’s testimony is sufficient to establish by a preponderance of the evidence that Lattimore engaged in a knowing or intentional course of conduct involving repeated or continuing harassment of K.L-H. that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually caused K.L-H. to feel the same. Accordingly, there is sufficient evidence to support the protective order against Lattimore in favor of K.L-H.

Conclusion

[15] The protective order in favor of K.L-H. is affirmed. The protective order in favor of M.H. is reversed.

[16] Affirmed in part and reversed in part.

Bailey, Judge.

Mathias, J., and Altice, J., concur.