Han Chong v. Jung Hee Kim (mem dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 22 2017, 10:06 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Megan J. Schueler Justin J. Harrison Ferguson Law Slotegraaf Niehoff, P.C. Bloomington, Indiana Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

Han Chong, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 53A01-1609-PO-2073 v. Appeal from the Monroe Circuit Court Jung Hee Kim, The Honorable Valeri Haughton, Appellee-Plaintiff. Judge Trial Court Cause No. 53C08-1511-PO-2174

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017 Page 1 of 8

Case Summary [1] Han Chong (“Chong”) appeals an order of protection preventing him from

having contact with his business associate Jung Hee Kim (“Kim”), who alleged

that she had been the victim of stalking. Chong presents the issue of whether

the protective order was issued absent sufficient evidence that he stalked Kim. 1

We reverse.

Facts and Procedural History [2] Kim purchased a sake bar in Bloomington, Indiana, and was permitted to enter

the United States from Korea on an investor’s visa. Chong, whose family

owned an adjoining business property, provided assistance to Kim both

professionally and personally. He trained Kim in restaurant operations and

offered professional advice. Additionally, he located an apartment for Kim and

loaned her a vehicle and cell phone. Chong, Kim, and a restaurant employee

named Gina socialized together. Chong also interacted with Kim’s children. [3] On November 13, 2015, Kim petitioned for an order of protection, asserting as

grounds that she had been a victim of a sex offense and stalking. Kim alleged

1 Chong also alleged that the trial court abused its discretion by allowing Kim to continue testifying after her attorney indicated that he had concluded his questions. We need not address this issue, as the issue of sufficiency of the evidence is dispositive.

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that Chong had, on several occasions, made comments of a sexual nature that

caused Kim to feel “very ashamed and embarrassed.” (App. at 15.) [4] On January 4 and January 8, 2016, the trial court conducted a hearing. At the

conclusion of the hearing, the trial court verbally ordered both parties to refrain

from contacting the other. On August 8, 2016, the trial court entered an order

of protection as requested by Kim, concluding that Kim had been a victim of

stalking. Chong now appeals.

Discussion and Decision [5] Under Indiana Code § 34-26-5-2(a):

A person who is or has been a victim of domestic or family violence may file a petition for an order for protection against a:

(1) family or household member who commits an act of domestic or family violence; or

(2) person who has committed stalking under IC 35-45-10-5 or a sex offense under IC 35-42-4 against the petitioner.

[6] “Stalk” means “a knowing or an 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” means “conduct directed toward

a victim that includes but is not limited to repeated or continuing impermissible

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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. [7] A protective order may be issued when a trial court finds, by a preponderance

of the evidence, that the respondent represents a credible threat to the safety of

the petitioner. Maurer v. Cobb-Maurer, 994 N.E.2d 753, 756 (Ind. Ct. App. 2013)

(citing I.C. § 34-26-5-9(f)). An improperly granted protective order has

significant ramifications; specifically, a violation of a trial court’s protective

order is punishable by imprisonment or a fine. C.V. v. C.R., 64 N.E.3d 850, 853

(Ind. Ct. App. 2016) (citing I.C. § 34-26-5-3). When reviewing the sufficiency

of evidence to support a protective order, the reviewing court does not reweigh

the evidence and will not judge witness credibility. Maurer, 994 N.E.2d at 755.

We consider only the probative evidence and reasonable inferences that support

the judgment. Id. [8] Kim testified in support of the protective order that the following events

occurred:

Chong asked Kim for a kiss and Kim responded that she did not want to kiss Chong;

Chong stated to Kim that if she slept with him, he would give her preferential treatment;

Chong again referred to his interest in having a sexual relationship with Kim, stated that he didn’t waste time, and they would be sleeping together before the end of the year;

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Kim became aware that Chong had a handgun when Kim borrowed Chong’s vehicle and he removed the handgun to keep it away from Kim’s children;

In a text message exchange, Chong admitted to having sexual thoughts when he recalled a visit that he [or he and Kim] had made to an adult bookstore2 and he questioned whether Kim thought he was dangerous; and

After Kim had filed for a protective order, Chong came into a store, looked at Kim, and came close to the register where Kim was purchasing cigarettes.

[9] Kim testified that Chong’s sexual overtures caused her to feel “shameful and

embarrassing [sic]” and that she “kind of felt threatened.” (Tr. At 60.) Kim

explained that, in Korea, private ownership of guns is not permitted and

Chong’s “representation” that he had a gun and text reference to “a dangerous

man” collectively made her feel that Chong was “really threatening.” (Tr. at

64.) [10] From a subjective standpoint, Kim may have perceived a threat to herself or

experienced terror, fright, or intimidation. However, a protective order on

stalking grounds also requires the satisfaction of an objective test. The

petitioner must establish by a preponderance of the evidence that a “course of

conduct would cause a reasonable person to feel terrorized, frightened,

2 Kim testified that Chong drove to the store and went inside. She did not address whether or not she went inside. According to Chong, he waited in a hallway while Kim made a purchase.

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intimidated, or threatened.” Cruse v. C.C., 58 N.E.3d 974, 977 (Ind. Ct. App.

2016). [11] In Cruse, a panel of this Court found insufficient evidence of stalking where the

petitioner testified that her ex-husband: threatened to make a scene at their

child’s school; went to her place of employment and made her boss

uncomfortable; caused teachers to feel uncomfortable; made claims at a

baseball game that the petitioner “was probably banging a colleague” and then

confronted the colleague by “getting in his face.” Id. at 976. There was no

evidence of any threat of physical harm. Id. at 977. [12] Likewise, in Maurer, we found insufficient evidence of stalking where the

evidence showed only that an ex-husband had sent the petitioner “constant

emails and text messages” but the petitioner did not testify as to the effects and

she did not claim that she had asked her ex-husband to stop contacting her. 994

N.E.2d at 755. The Court observed that “it is often the case that stalking is

found where contact between persons includes some form of physical threat”

but further observed that “there is no requirement that the contact at issue be

threatening on its face, and stalking may be found where other evidence is

sufficient to prove that the contact amounted to harassment.” Id. at 757-58.

However, where evidence of harassment is lacking, “the mere fact that contact

occurred between [the parties] on more than one occasion cannot – without

more – constitute stalking.” Id. at 757. The Maurer Court re-iterated that the

conduct must be such as to “cause a reasonable person to feel terrorized,

frightened, intimidated, or threatened.” Id.

Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017 Page 6 of 8 [13] Very recently, in C.V., we found that a protective order was unwarranted when

the conduct at issue consisted of the respondent’s leaving four notes at the

petitioner’s workplace, some of which were described as “kinky.” 64 N.E.3d at

851. The Court found it to be “significant” that there was no evidence that the

petitioner had asked the respondent to stop sending the notes or that he had

persisted after such a request. Id. at 854. Also, the contact “appeared to have

been relatively non-threatening.” Id. We concluded: “because there was no

evidence that the contents of the notes were threatening, we cannot conclude

that there was sufficient evidence that a reasonable person would have felt

terrorized, frightened, intimidated, or threatened by C.V.’s acts under these

circumstances.” Id. [14] We find these decisions persuasive in the instant case. Kim did not ask Chong

to stop his allegedly intimidating communications before she petitioned for a

protective order. There is no evidence that Chong contacted Kim after the

petition was filed. The communications, although sexual in nature, did not

suggest that Chong intended sexual contact by force. Nor is there evidence that

Chong used his handgun to threaten or intimidate Kim. Given Kim’s historical

lack of contact with weapons, she may well have found Chong’s ownership of a

handgun to be unsettling. However, our review of the record leaves us with a

firm conviction that there was insufficient evidence to support a finding that the

conduct at issue would cause a reasonable person to feel terrorized, frightened,

intimidated, or threatened. The trial court’s issuance of the protective order

was in error.

Court of Appeals of Indiana | Memorandum Decision 53A01-1609-PO-2073 | February 22, 2017 Page 7 of 8 [15] Reversed.

Kirsch, J., and May, J., concur.

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