Brandon Dothager v. M.N. (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 Nov 13 2020, 9:22 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT APPELLEE PRO SE James Harper M.N. Harper & Harper, LLC Highland, Indiana Valparaiso, Indiana

IN THE COURT OF APPEALS OF INDIANA

Brandon Dothager, November 13, 2020 Appellant-Respondent, Court of Appeals Case No. 20A-PO-608 v. Appeal from the Lake Superior Court M.N., The Honorable Cheryl Williamson, Appellee-Petitioner Magistrate Trial Court Cause No. 45D05-2001-PO-71

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-PO-608 | November 13, 2020 Page 1 of 7

Case Summary [1] Brandon Dothager appeals the trial court’s issuance of an order of protection

against him and in favor of M.N., arguing that there is insufficient evidence to

support the issuance of the order. Concluding that the evidence is sufficient, we

affirm the trial court’s grant of the protective order in favor of M.N.

Facts and Procedural History [2] In late 2018 and 2019, then sixty-eight-year-old M.N. was the chair of the

Democratic Party in Highland, Indiana, and twenty-six-year-old Dothager was

a Democratic precinct committee member. On January 16, 2020, M.N. filed a

petition for an order of protection against Dothager. M.N. alleged in the

petition that Dothager had “committed repeated acts of harassment” against

her. Appellant’s App. Vol. 2 at 6. [3] An evidentiary hearing was held on February 12, 2020. During the hearing,

M.N. testified that she feared for her safety and had suffered great emotional

distress and anxiety due to Dothager’s repeated acts of harassment and

intimidation. M.N. testified that Dothager had continually tried to bully and

harass her into resigning her position as chair. M.N. stated that, in addition to

sending her numerous threatening text messages on various dates accusing her

of committing crimes and demanding her resignation, Dothager put written

materials in her mailbox with the intent of harassing her and forcing her

resignation, and on at least one occasion, he showed up at her house

unannounced with the same intent. M.N. stated that, at a committee meeting

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on January 24, 2019, Dothager “lunged” at her during a verbal altercation. Tr.

Vol. 2 at 8. Highland Police Detective Ralph Potesta testified that, due to

M.N.’s concerns regarding Dothager, the detective was called upon in his

capacity as a police officer to provide security for committee meetings.

Detective Potesta testified that he was present at the January 24 meeting,

corroborated M.N.’s account of the lunging incident, and stated that he

escorted Dothager out of the meeting due to his aggressive behavior. Detective

Potesta testified that he was aware of, and had personally taken, several police

reports indicating that Dothager had engaged in bullying and harassment of

M.N. in person, on the telephone, and through text messaging. Detective

Potesta opined that “it seem[ed] like [Dothager] want[ed] to take her position in

the organization, and he was basically threatening her … that if she doesn’t do

what he wants, he was going to basically ruin her name.” Id. at 25. When

asked directly by the trial court whether, in his professional opinion, he believed

that Dothager had been harassing M.N., Detective Potesta stated, “I do,

especially since she asked him to stop and he continued.” Id. at 42. Detective

Potesta further stated that although Dothager did not make direct physical

threats, he repeatedly threatened “to harm [M.N.] personally” and made threats

“against her family.” Id. [4] Precinct committee member of thirty-five years, David Beanblossom, testified

that the committee had never needed security at their meetings prior to

Dothager’s behavior toward M.N. Beanblossom recalled one meeting when

Dothager “was interrupting” and “just wouldn’t listen,” and when M.N. tried

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to maintain decorum for the meeting by instructing Dothager to stop, Dothager

“got up and charged the front of the room” with a “scary” look on his face. Id.

at 45. Beanblossom and another individual had to get up “to block

[Dothager’s] path” to M.N. Id. M.N. explained to the court that, contrary to

Dothager’s claims, she was not trying to keep him from attending future

meetings and participating in the committee process. Instead, she stated that

she wanted a protective order so that “he’s not allowed to text me and harass

me …. I don’t want to be intimidated by him consistently because I don’t

resign my position.” Id. at 78. [5] At the conclusion of the hearing, the trial court acknowledged that while

political debate often involves “push and pull between sometimes even

members of the same party[,]” Dothager’s behavior “really went beyond the

democratic process.” Id. at 81. Accordingly, the court concluded that M.N.

had shown, by a preponderance of the evidence, that Dothager had engaged in

repeated acts of harassment sufficient to justify the issuance of a protective

order. Specifically, the order provides that Dothager is “enjoined from

threatening to commit or committing acts of harassment” against M.N. and

“prohibited from harassing, annoying, telephoning, contacting, or directly or

indirectly communicating” with M.N., except that Dothager “may attend

Democratic committee meetings and communication with [M.N.] at these

meetings shall not be in violation of this order.” Appealed Order at 2.

Dothager is further “ordered to stay away from” M.N.’s residence. Id. This

appeal ensued.

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Discussion and Decision [6] The Indiana Civil Protection Order Act (CPOA) provides, “A person who is or

has been subjected to harassment may file a petition for an order for protection

against a person who has committed repeated acts of harassment against the

petitioner.” Ind. Code § 34-26-5-2(b). Harassment, as defined in the criminal

statutes outlawing stalking, is “conduct directed toward a victim that includes

but is not limited to repeated or continuing impermissible contact that would

cause a reasonable person to suffer emotional distress and that actually causes

the victim to suffer emotional distress.” Ind. Code § 35-45-10-2. The term

“repeated” as used in the anti-stalking statute “means more than once.” Falls v.

State, 131 N.E.3d 1288, 1290 (Ind. 2019) (citation omitted). “[I]mpermissible

contact” includes, but is not limited to, “[f]ollowing or pursuing the victim” and

“[c]ommunicating with the victim in person, in writing, by telephone, by

telegraph, or through electronic means.” Ind. Code § 35-45-10-3. The

respondent must represent “a credible threat to the safety of a petitioner or a

member of a petitioner’s household.” Ind. Code § 34-26-5-9(g). [7] The CPOA and similar statutes are meant “to prohibit actions and behavior

that cross the lines of civility and safety in the workplace, at home, and in the

community.” Torres v. Ind. Family & Social Servs. Admin., 905 N.E.2d 24, 30

(Ind. Ct. App. 2009). We construe the CPOA “to promote the protection and

safety of all victims of harassment in a fair, prompt, and effective manner.” Ind.

Code § 34-26-5-1. The petitioner for an order for protection bears the burden of

proof and must prove entitlement to the order by a preponderance of the

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evidence. Costello v. Zollman, 51 N.E.3d 361, 367 (Ind. Ct. App. 2016), trans.

denied. A trial court has discretion to grant protective relief pursuant to the

CPOA, and we neither reweigh the evidence nor judge the credibility of the

witnesses. Id. “We consider only the evidence of probative value and reasonable

inferences that support the judgment.” Id. We will reverse the grant or denial of

a petition for an order of protection “only if we are convinced that the evidence

as a whole leads unerringly and unmistakably to a decision opposite that

reached by the trial court.” Id. [8] Here, M.N. presented sufficient evidence to support the trial court’s conclusion

that Dothager’s actions and behavior toward her personally crossed the lines of

civility in the community to justify the issuance of a protective order. The

record supports a finding, by a preponderance of the evidence, that Dothager

engaged in conduct directed toward M.N. involving repeated and continuing

impermissible contact, including communications with her in person and

through electronic means, that would cause a reasonable person to suffer

emotional distress, and that actually caused M.N. to suffer emotional distress,

and that presents a credible threat to her safety. The entirety of Dothager’s

appellate argument is a request for us to reweigh the evidence and reassess

witness credibility, and we may not. Dothager’s arguments emphasize his own

characterization of the facts that he was merely engaged in “firm” criticism of

M.N.’s “leadership of the Party[,]” see Appellant’s Br. at 14, 17, but we are

obliged to accept the facts and reasonable inferences most favorable to the trial

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court’s judgment. 1 As observed by the trial court, it is clear that Dothager’s

hostility toward M.N. has greatly increased over time and he had begun “losing

control” when it came to interacting with her. Tr. Vol. 2 at 81. The trial court

agreed with M.N. that at least some restriction on Dothager’s direct

communications and contact with her, albeit minimal, was warranted in order

to calm the waters before matters could further escalate. Dothager has failed to

convince us that the evidence as a whole leads unerringly and unmistakably to a

decision opposite that reached by the trial court. Therefore, we affirm the

court’s issuance of the protective order. [9] Affirmed.

Robb, J., and Brown, J., concur.

1 We reject Dothager’s suggestion that the protective order here is clearly erroneous because it improperly punishes him for exercising his First Amendment right to political speech. Although we observe that constitutionally protected activities cannot be deemed to be stalking or harassment, S.B. v. Seymour Cmty. Schs., 97 N.E.3d 288, 296 (Ind. Ct. App. 2018) (citing Ind. Code §§ 35-45-10-1, -2)), trans. denied (2019), as explained above, considering only the facts most favorable to the trial court's judgment, we conclude that the order for protection here is based on Dothager’s continuing harassment and threats directed to M.N. personally, which are clearly not constitutionally protected activities. E.g., Brewington v. State, 7 N.E.3d 946, 953 (Ind. 2014). We will not revisit the trial court’s apt conclusion that Dothager’s repeated personal attacks directed toward M.N. “really went beyond the democratic process.” Tr. Vol. 2 at 81.

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