Protective order reversed for insufficient evidence

A man seeking to be rid of a protective order brought against him by his ex-girlfriend convinced the Indiana Court of Appeals that insufficient evidence supported the order.

Several months following their breakup after dating for more than one year, S.W. filed a petition for a protective order against R.H., alleging she is or had been a victim of domestic or family violence and of stalking. S.W. also alleged that she and R.H. lived together in an intimate relationship, and R.H. attempted to and did cause physical harm to her, placed her in fear of physical harm, caused her to involuntarily engage in sexual activity by force, threat of force, or duress, and committed stalking against her.

The woman asserted two separate instances in her petition, including an incident that occurred in May 2018 during the couple’s vacation, as well as in February 2019 after they had ended the relationship.

“Regarding the May 2018 allegation, S.W. presented testimony that R.H. started yelling at her, cussing at her, and calling her horrible things, that he grabbed her wrist when she ‘tried to get away,’ and that she asked him to stop ‘because it hurt really bad, and – and that’s it.’ The record reveals that the parties immediately reconciled. Further, this incident occurred ten months before S.W. filed for the protective order,” Judge Elaine Brown wrote for the appellate court.

“Regarding the February 2019 allegation, S.W. presented testimony that she was driving to work in Hanover after dropping her daughter at school when she noticed he was in front of her and that he ‘ended up getting off to the other side, the other lane, and then slowing down to where he was behind me’ and he ‘would stick behind me all the way to work.’ This single incident is insufficient to establish stalking, and the record does not contain evidence that S.W. suffered emotional distress,” the appellate court wrote.

Although the Jefferson Circuit Court issued a protection order for S.W. that would remain in effect through May 2021 and rejected R.H.’s motion to correct error, the appellate court concluded otherwise in a Thursday decision.

“(W)e conclude R.H. has presented a case of prima facie error that there was insufficient evidence to support the issuance of a protective order,” Brown wrote for the panel that  reversed the Jefferson Circuit Court’s decision in R.H. v. S.W., 19A-PO-2244.

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