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Reversal: Claim of 165 texts in 24 hours doesn’t prove stalking

October 24, 2018

The Indiana Court of Appeals revoked a man’s protective order against the mother of his child when it found that her excessive messaging in a 24-hour period did not constitute stalking.

M.A. and S.H. were previously involved in an intimate relationship and have one daughter together, but they remained out of contact with each other until September 2017. 

Three months later, M.A. filed a petition for an order of protection, alleging that S.H. committed stalking against him by sending him 165 text messages in one day. The texts allegedly expressed anger at M.A.’s decision to have another child with someone else and at his performance as a father.

During a February 2018 hearing, M.A. only offered five text messages of the alleged 165 sent by S.H. into evidence. S.H. admitted to sending M.A. numerous messages that day, but he said that the messages in evidence did not properly reflect that they were part of a larger conversation between the two of them.

Despite S.H.’s offer to admit the entire 46-page conversation between her and M.A., the trial court sustained M.A.’s objection to its admittance. However, it did say that S.H. could submit a clean copy, but would not allow her to rip off the notated margins and submit it during that hearing.

The trial court ultimately found M.A. had shown by a preponderance of the evidence that the protective order was justified and issued the protective order.

On appeal, S.H. argued that M.A. did not present sufficient evidence to support the issuance of a protective order in his admitted text messages, and the appellate court agreed in a memorandum decision Tuesday, S.H. v. M.A. (mem. dec.), 18A-PO-526.

“Although S.H. is undoubtedly emotional in the text messages, the five messages, by themselves, do not establish ‘repeated or continuing impermissible contact’ with M.A.,” Chief Judge Nancy Vaidik wrote. “Rather, they reflect that S.H. was angry with M.A. about his parenting (or lack thereof).”

The appellate court also found that because the admitted text messages were in fact a part of a “much larger conversation” between M.A. and S.H., and M.A. objected to the admission of the 46-page conversation, he therefore could not rely on the unadmitted text messages to prove S.H. was stalking him.

“… (H)ad Exhibit 2 been admitted, it would have been clear that the messages in Exhibit A were part of a much larger conversation between M.A. and S.H,” Vaidik continued. “As this Court has stated before, ‘mutual communication between two parties [does not qualify] as harassment within the meaning of the stalking statute.’”

The appellate court therefore reversed the trial court’s issuance of the protective order and remanded with instructions to vacate it.

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