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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
May 09 2011, 9:30 am
of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: LEANNA WEISSMANN Lawrenceburg, Indiana

CLERK

IN THE COURT OF APPEALS OF INDIANA
RICHARD CUNNINGHAM, Appellant-Respondent, vs. SANDRA RAINS, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

No. 24A01-1011-PO-628

APPEAL FROM THE FRANKLIN CIRCUIT COURT The Honorable Clay M. Kellerman, Judge Cause No. 24C02-1009-PO-32

May 9, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge

Case Summary Appellant-respondent Richard Cunningham ("Cunningham") appeals the trial court's issuance of a protective order in favor of appellee-petitioner Sandra Rains ("Rains"), raising the single issue of whether sufficient evidence supports the order. We affirm. Facts and Procedural History Rains is an employee at First Financial Bank where Cunningham had his bank account. The two started speaking on the phone in January of 2009, and first met in March of 2009. They developed a friendly relationship, and in October of 2009, Rains bought a piece of property from Cunningham. Around that time, Cunningham also moved in with Rains, although the two "didn't really have a relationship" and instead remained friends. Tr. 5-6. At some point the friendship ended. In January 2010, Cunningham threatened Rains by telling her that he was going to have someone come rape her. He also told her that he would throw acid in her face and run her over with his truck. At that point, Rains attempted to get Cunningham to move out of her house, which he eventually did. However, Cunningham's threats persisted. He continually called and visited Rains's place of employment, and told her that he was going to make her lose her job. On one occasion while at her place of work, Cunningham told Rains that he would slice her head open with a machete. On another occasion, he spoke with Rains's assistant manager and demanded that only Rains help him with banking business. Eventually, First Financial Bank called a guard in for a week for extra protection.

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On September 3, 2010, Rains filed a petition seeking a protective order, alleging that she was the victim of domestic or family violence and that Cunningham was a household or family member (but did not describe the specific nature of their relationship). She also alleged that Cunningham had stalked her. The trial court issued an ex parte order for protection on September 8, 2010, but stated in the order that it did not protect an intimate partner. Cunningham requested a hearing on the matter, which the trial court conducted on November 15, 2010. After considering the evidence, the court reaffirmed its previously issued protective order. Cunningham now appeals. Discussion and Decision Standard of Review Cunningham challenges the sufficiency of the evidence supporting the trial court's protective order. When reviewing the sufficiency of the evidence supporting an order for protection, we neither reweigh the evidence nor judge the credibility of witnesses. Tisdial v. Young, 925 N.E.2d 783, 785 (Ind. Ct. App. 2010). We consider only the probative evidence and the reasonable inferences supporting the trial court's order. Id. We also note that Rains did not submit an appellee's brief. When the appellee does not submit a brief, we need not undertake the burden of developing an argument for her. Id. at 784. Rather, we will reverse the trial court's judgment if the appellant presents a case of prima facie error. Id. at 784-85. "Prima facie error in this context is defined as, at first sight, on first appearance, or on the face of it." Id. at 785 (quoting Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006)). If the appellant does not meet this burden, then we will

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affirm. Id. Sufficiency of the Evidence The trial court entered its order pursuant to its authority under the Indiana Civil Protection Order Act ("CPOA"), codified at Indiana Code chapter 34-26-5. Under the CPOA, [a] person who has been a victim of domestic or family violence may file a petition for an order of 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 I.C.

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