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H.O., Appellant-Defendant v. C.L., Appellee-Plaintiff (2024)

Court of Appeals of Indiana.2024-07-03No. Court of Appeals Case No. 23A-PO-2644

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Opinion

MEMORANDUM DECISION

May, Judge.

[1] H.O. appeals the trial courts order granting an order for protection under the Civil Protection Order Act (“CPOA”)

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against her as requested by her ex-boyfriend C.L. H.O. presents two issues for our review, which we revise and restate as:

1. Whether the trial court committed reversible error when it admitted a cell phone video without testimony from the person who recorded the video; and

2. Whether C.L. presented sufficient evidence to support the trial courts issuance of a civil order for protection.

We affirm.

Facts and Procedural History

[2] On July 13, 2023, H.O. went to the house C.L. shared with his girlfriend and his girlfriends children, and H.O. started “banging” on the front door. (Tr. Vol. 2 at 6.) The loud knocking woke up C.L. and “terrified” his girlfriends children. (Id. at 9.) When C.L. answered the door, he observed that H.O. was “very visibly angry” and she demanded that he return “a stone of some sort” that was “a spiritual item.” (Id. at 9-10.) C.L. closed the front door, retrieved the stone from inside his house, cracked the front door open, and threw the stone into the front yard. He told H.O. to leave, and he shut and locked his front door. Seconds later, a cinder block broke through one of C.L.’s living room windows. C.L. then called 911. A police officer responded to the scene and took statements from C.L. and C.L.’s girlfriend. C.L. also asked the police officer to “trespass” H.O. from his property. (Id. at 15.)

[3] On August 11, 2023, while C.L. was home by himself, H.O. returned to his house and started knocking on the door. C.L. ignored H.O.’s knocking for a while, but he eventually answered the door and told H.O. to leave. H.O. claimed “she was just coming to check on [C.L.] because it was a couple days after the tornadoes hit the town.” (Id. at 17.) C.L. told H.O. she was not welcome on his property and asked her to leave. When H.O. still did not leave, C.L. began dialing 911 and H.O. left. The police later came and took C.L.’s statement regarding the second incident.

[4] On August 21, 2023, C.L. filed a petition for an order for protection against H.O. The trial court then held a hearing on C.L.’s petition on October 10, 2023. At trial, C.L. stated that he had video on his cell phone of part of the July 13, 2013, incident and offered to play it for the court, but H.O. objected on the basis that C.L. had not properly authenticated the video. The trial court then asked C.L. several questions about the video:

[Court:] Well let me ask you a couple more foundational questions. Who recorded it?

[C.L.:] Ah, it was our, our neighbor next door.

[Court:] Whos that?

[C.L.:] Her, her name is Miranda Anderson.

[Court:] Okay. And where was Miranda stationed at the time that she recorded this?

[C.L.:] Ah, she was, I believe looking through the window to her front-door.

[Court:] Okay. And do you, how did, ah, how did it happen that she would record this incident?

[C.L.:] I think she had seen the, she happened to maybe look out her window and see the initial-

[Court:] Okay

[C.L.:] -ah, portion of the incident.

[Court:[ Is this a friend of yours?

[C.L.:] Ah, yes she is.

[Court:] Miranda.

[C.L.:] Shes, ah, friend of ours

[Court:] Is, is this also a friend of the Respondent?

[C.L.:] Ah, not that I know of.

(Id. at 14.) The trial court overruled H.O.’s objection. Because the video was not in a physical format that could be submitted to the court, C.L. played the video in open court, and the trial court summarized for the record what the video showed. The trial court explained:

[T]he video appears to show an individual throw a, what Id call a concrete block through a window and then, ah, um, make a couple of, ah, ah, motions toward the house that where the block had been thrown that it might be given the house the finger or the occupants the finger or something of that nature.

(Id. at 15) (errors in original). C.L. also testified about H.O.’s second visit to his house on August 11, 2023. After the trial court warned H.O. that her testimony in the protective order hearing could be used against her in the pending criminal cases stemming from her interactions with C.L., H.O. chose to invoke her Fifth Amendment right not to testify. Following the hearing, the trial court issued an order granting C.L.’s petition for an order for protection against H.O. The order provided, in part:

f. The Respondent represents a credible threat to the safety of the Petitioner or a member of the Petitioners household.

g. The Petitioner has shown, by a preponderance of the evidence, that domestic or family violence has occurred sufficient to justify the issuance of this Order.

* * * * *

i. The following relief is necessary to bring about a cessation of the violence or the threat of violence.

(App. Vol. 2 at 6.)

Discussion and Decision

[5] Initially, we note that C.L. did not file an appellees brief. “When an appellee fails to file a brief, we may reverse the trial courts decision if the appellant demonstrates a prima facie case of reversible error. Prima facie means at first sight, on first appearance, or on the face of it.” Bergman v. Zempel, 807 N.E.2d 146, 149 (Ind. Ct. App. 2004) (internal citation and quotation marks omitted).

1. Admission of Video

[6] H.O. argues the trial court abused its discretion when it admitted the cell phone video because C.L. failed to properly authenticate it. We review a trial courts decision on the admission of evidence for an abuse of discretion. Whitenack v. State, 68 N.E.3d 1123, 1125 (Ind. Ct. App. 2017), trans. denied. “An abuse of discretion occurs when the trial courts decision is against the logic and effect of the circumstances and facts before it.” Id.

[7] Indiana Rule of Evidence 901 states: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” This evidence may be either direct or circumstantial, and absolute proof of authenticity is not required as long as the proponent demonstrates a reasonable probability that the evidence is what the proponent claims it to be. Harrison v. State, 32 N.E.3d 240, 255 (Ind. Ct. App. 2015), trans. denied. For video evidence, this requires “evidence describing the process or system that produced the videos and showing that the video is an accurate representation of the events in question.” McFall v. State, 71 N.E.3d 383, 385 (Ind. Ct. App. 2017). Here, C.L. claimed that the video was recorded by one of his neighbors and depicted part of H.O.’s July 13, 2023, visit to his house. However, C.L. did not call the neighbor who supposedly recorded the video to testify, nor did he personally witness the events depicted in the video because he was inside the house when the cinder block broke through his window. He could only speculate regarding when the neighbor started recording and the neighbors vantage point. In addition, C.L. did not demonstrate that the video was not manipulated before it was given to him. Therefore, we hold that C.L.’s testimony alone was insufficient to authenticate the video, and the trial court abused its discretion in admitting the video. See, e.g., id. at 388 (holding detectives testimony was insufficient to authenticate video when detective exercised no control over the recording process and did not know whether video was altered before he received it).

[8] Nonetheless, “[e]ven if an evidentiary decision is an abuse of discretion, we will not reverse if the ruling constituted harmless error.” Kimbrough v. Anderson, 55 N.E.3d 325, 334 (Ind. Ct. App. 2016), trans. denied. A “trial courts error is harmless when ‘its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.’ ” B.N. v. Health & Hosp. Corp., 199 N.E.3d 360, 365 (Ind. 2022) (quoting Ind. App. R. 66(A)). The basic premise of the harmless error doctrine is that the result of a trial should stand “when the error had no bearing on the outcome of the case.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). C.L. testified that H.O. came to his house late at night, banged on his front door loud enough to frighten his girlfriends children, and demanded that he return a stone to her. Seconds after C.L. returned the stone, a cinder block broke through his window. There is no evidence that anyone other than H.O. was outside of C.L.’s house at the time. Moreover, H.O. did not deny throwing the cinder block through the window. Instead, she asserted her Fifth Amendment right not to testify, and “although the refusal to testify in a civil case cannot be used against the one asserting the privilege in a subsequent criminal proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case from drawing adverse inferences from a witness’ refusal to testify.” In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). Thus, even without considering the erroneously admitted video, the only reasonable conclusion from the evidence is that H.O. threw the cinder block through the window. Therefore, the trial courts erroneous admission of the video was harmless. See, e.g., Hatcher v. State, 735 N.E.2d 1155, 1161 (Ind. 2000) (holding erroneous admission of hearsay statement was harmless considering the other evidence regarding the victims fear of her ex-boyfriend).

2. Sufficiency of the Evidence

[9] H.O. also asserts that C.L. failed to present sufficient evidence to support the trial courts issuance of an order for protection. “When, as here, a party appeals a trial courts judgment entering a protective order, we apply a two-tiered standard of review—we consider whether the evidence supports the courts findings and, if so, whether those findings support the judgment.” S.D. v. G.D., 211 N.E.3d 494, 497 (Ind. 2023). We consider the evidence in the light most favorable to the trial courts decision, and we will not reweigh the evidence or judge the credibility of the witnesses. Id.

[10] The CPOA sets out the procedure and requirements for obtaining an order for protection. It provides that “a victim of domestic or family violence may file a petition for an order for protection against a ․ family or household member who commits an act of domestic or family violence[.]” Ind. Code § 34-26-5-2(a)(1). The CPOA further states:

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 petitioners 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). A person is a “family or household member” of another person if the person has dated or engaged in a sexual relationship with the other person. Ind. Code § 34-6-2-44.8(a)(2) & -44.8(a)(3). Thus, because H.O. and C.L. had been in a dating and sexual relationship, H.O. was a “family or household” member of C.L.

[11] Indiana Code section 34-6-2-34.5 defines domestic or family violence, and that statute provides, in relevant part:

“Domestic or family violence” means, except for an act of self-defense, the occurrence of at least one (1) of the following acts committed by a family or household member:

(1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member.

(2) Placing a family or household member in fear of physical harm.

One way a person can threaten physical harm or place a person in fear of physical harm is by vandalizing the other persons property. See, e.g., Mysliwy v. Mysliwy, 953 N.E.2d 1072, 1077 (Ind. Ct. App. 2011) (holding ex-husbands vandalism of ex-wifes house constituted a threat of physical harm), trans. denied. Here, H.O. went to C.L.’s house and threw a cinder block that broke through his living room window. C.L. testified that this caused C.L., his girlfriend, and his girlfriends children to feel “scared” and fear physical harm. (Tr. Vol. 2 at 19.) He also explained that his girlfriends children would often sleep on or play around the couch that was in front of the living room window that H.O. broke and “if thered been a kid asleep or playing, who knows what could of [sic] happened.” (Id. at 20.)

[12] H.O. attacks C.L.’s testimony as “self-serving” and asks us to look at “alternative evidence” including “testimony that C.L. knew he was harboring H.O.’s personal property, he knew H.O. wanted her property back, he had just had consensual sexual contact with H.O. days prior to her first coming over to get her special stone, and he knew throwing said stone would escalate the situation.” (Appellants Am. Br. at 13-14.) However, H.O.’s argument is nothing more than a request to reweigh the evidence and reassess witness credibility, which we will not do. As our Indiana Supreme Court explained in S.D., “when the evidence could lead a court to grant or deny a petition ․ the trial court is the one to make the call.” 211 N.E.3d at 498 (internal quotation marks omitted). Moreover, “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.” Id. Therefore, we hold C.L. presented sufficient evidence to support the trial courts entry of an order for protection against H.O. See, e.g., Kieffer v. Trockman, 56 N.E.3d 27, 36-37 (Ind. Ct. App. 2016) (holding sufficient evidence supported trial courts extension of Mothers protective order against Father and rejecting Fathers argument to reweigh the evidence).

Conclusion

[13] The trial court abused its discretion when it admitted C.L.’s cell phone video because the video was not properly authenticated, but the error was harmless because other evidence in the record demonstrated H.O. threw a cinder block that broke through C.L.’s living room window. In addition, C.L. presented sufficient evidence to support the trial courts issuance of an order for protection. Therefore, we affirm the trial court.

[14] Affirmed.

FOOTNOTES

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.   Ind. Code § 34-26-5-1 et seq.

Memorandum Decision by Judge May

Judges Brown and Pyle concur.

Brown, J., and Pyle, J., concur.