22 January 2014 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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The Indiana Court of Appeals delivered an opinion in A.N. v K.G. Yesterday which it chose to publish. [A published opinion is one that can be used as precedent and usually reflects an important legal decision or a change to prior decisions] The matter was originally heard in the trial court by Barbara Crawford, Judge Marion County Superior Court.
On May 18, 2010, K.G. filed an ex parte motion for a protective order against A.N., which the trial court granted the same day. On June 11, 2010, following a hearing, the trial court granted him a protective order for two years. The protective order prohibited A.N. from acts of violence, stalking, and “harassing, annoying, telephoning, contacting or directly or indirectly communicating with” K.G. and three other persons.
Over the course of two years K.G. filed multiple information for contempt alleging that A.N. had in addition to making “non-stop” phone calls to his home phone and his ex-wife’s phone, A.N. had “spray painted [his] knew [sic] house.” Upon the first hearing, April 5, 2011, the trial court found A.N. in contempt. She received a suspended sentence of 120 days in the Marion County Jail and was ordered to complete 80 hours of community service and pay a fine. K.G. later claimed that A.N. had made numerous calls to his home and that he possessed a picture of his home phone that recorded the telephone number A.N. used. K.G. alleged that on one occasion, he spoke to A.N., who said, “I’m back[.] [Y]ou better watch your ass.” When reminded by K.G. that a protective order was in place, A.N. allegedly responded, “F*** that protective order[.] I can do what I want.” Apparently so but that can come with consequences. The trial court found that A.N. violated the protective order and ordered her 120 day sentence executed and placed her on home detention. The trial court thereafter extended the protective order to November 29, 2040, for a total of 28 years.
I won't go into a detailed legal analysis of A. N.'s appeal as most of it was without merit. However, the one issue that deserves attention was her claim that the judge acted as an advocate. This is something that it often brought to me as a concern by potential clients when the judge asked questions during the proceeding or made sua sponte [on the judge's own motion] objections. The Court of Appeals addressed it in this manner;
The record shows that the trial court’s questions were neutral, served to clarify K.G.’s testimony, and did not discredit A.N. or her defense. Although A.N. alleges prejudice since the trial court cited the photograph when explaining its rationale for finding A.N. in contempt, A.N. was not prejudiced because she cross-examined K.G. on the photograph. We therefore conclude that the trial court did not act as an advocate by asking K.G. foundational questions regarding the photograph. See Trotter, 733 N.E.2d at 532.
A trial court has a duty to remain impartial and refrain from making unnecessary comments or remarks. Cook v. State, 734 N.E.2d 563, 566 (Ind. 2000), reh’g denied. However, not all untoward remarks by a judge constitute reversible error. Id. at 567. The remarks must harm the complaining party or interfere with the right to a fair trial. Id. Further, the court does not engage in improper advocacy by stopping improper cross-examination on its own motion. Id.
The record reveals that each time the trial court interrupted A.N.’s cross-examination, the questions posed either mischaracterized K.G.’s testimony or were argumentative. However, the critical question here is whether the trial court’s remarks harmed A.N. or denied her a fair trial. See id. They did not. In the first instance, A.N. simply rephrased the question and proceeded with cross-examination. After intervening in the three instances of argumentative questioning, the trial court sought to move the proceedings forward, for example, by instructing A.N.’s counsel to “stick with the facts of these contempt petitions.” Consequently, A.N. has not shown that the trial court’s remarks constituted improper advocacy or interfered with her right to a fair trial. See Cook, 734 N.E.2d at 566.
Legal analysis of the proceedings aside, the important fact to take away from this is that violation of a Protective Order or a No Contact Order can result in a civil order of confinement. It can also lead to a separate criminal charge. As in this case A.N. is going to be burdened with being required to comply with this order until the year 2040. She seems to demonstrate a clear unwillingness to comply for the first three years, even after incarceration, and if it doesn't cease a criminal charge will likely follow.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Wednesday, January 22, 2014
How to get a 28 year Protective Order lodged against you and then waste time appealing it
Wednesday, June 30, 2010
Court of Appeals upholds a PO against a woman!!!
Kathy Hardesty appealed the trial courts' entry of an Order for Protection (“protective order”) against her pursuant to a petition filed by Larry Vickery, pro se. The Indiana Court of Appeals in this decision filed on 29 June 2010 affirmed the trial court.
Hardesty contends that the trial court erred when it issued the protective order because the evidence is insufficient to show that she stalked Vickery or his roommate Ledbetter. From my experience in helping men who have been victims of false allegation, including myself who was falsely accused of rape, is that most judges feel that an accusation is sufficient evidence. The Court of Appeals in the past has upheld based upon that.
In my case, upon a hearing, the alleged victim once placed under oath said that I had not done anything to her that she had no fear of me and that she did not care if the ex-parte order remained in place. The PO was immediately dismissed.
In the case of Hardesty there was a hearing conducted in which the judge found sufficient evidence to issue the PO. So Hardesty had a big uphill climb from there.
Hardesty and Vickery are neighbors whose properties abut each other and are separated by a six foot privacy fence. Vickery alleged that Hardesty had been stalking and threatening him and had done damage to his vehicle.
In the summer of 2009, Vickery's truck sustained damage while parked on his property. One week afterward, while Vickery and Ledbetter were standing outside discussing the truck damage with a neighbor, Hardesty “just [came] running out there yelling” and said to Vickery, “You fat son of a bitch next time it's going to cost you more[.]” Vickery and Ledbetter interpreted Hardesty's statement to mean that she had caused the damage to Vickery's truck. The damage to the truck shown in photographs “match[ed] up perfectly” with the ram guard of Hardesty's vehicle.
Later that year Vickery was standing in his yard when he heard Hardesty say loudly from the other side of the fence that she wanted to “blow [his] legs off” and she “wished she had some type of bomb or landmines to blow [him] up[.]”
There is no requirement that the alleged stalking be committed by a family or household member. Therefore, a person who alleges that she is a victim of stalking, even where the alleged stalker is a stranger to the victim, may seek a protection order against the alleged stalker.
Stalking is defined 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.
The standard of proof in this type of case, civil, is by a preponderance of the evidence. The evidence does not have to conclusively prove the alleged conduct but must only demonstrate that it was more likely than not.
Hardesty contends that the evidence is insufficient to show that her conduct actually caused Vickery or Ledbetter to feel terrorized, frightened, intimidated, or threatened. The court did not agree. A reasonable inference from the evidence is that Vickery actually believed Hardesty was threatening him.
While this standard is tenuous and subjective, allowing it too often be abused, in this case it appears that the incidents cited herein and others support that Vickery did feel that Hardesty was repeatedly threatening him.
While this case demonstrates that the gender barrier when there is conclusive evidence is being broken there is still an overwhelming amount of PO's being issued when there is no viable evidence. This is a law that has done far more harm than good and should be changed.
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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