J.K. v. D.T. ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2023-0119, J.K. v. D.T., the court on July 18,
2023, issued the following order:
The court has reviewed the written arguments and the record submitted on
appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The defendant appeals an order of the Circuit Court (Gorman, J.),
issued following a hearing, granting a civil stalking final order of protection in
favor of the plaintiff. See RSA 633:3-a (Supp. 2022). On appeal, the defendant
advances several challenges to the trial court’s order. We affirm.
In an appeal from an order granting a civil stalking final order of
protection, we uphold the findings and rulings of the trial court unless they are
lacking in evidentiary support or are erroneous as a matter of law, and accord
considerable weight to the trial court’s judgments on the credibility of witnesses
and the weight to be given testimony. Fisher v. Minichiello, 155 N.H. 188, 190
(2007). We view the evidence in the light most favorable to the prevailing party;
here, the plaintiff. See id.A person commits the offense of stalking if, among other things, that
person “[p]urposely, knowingly, or recklessly engages in a course of conduct
targeted at a specific person which would cause a reasonable person to fear for
his or her personal safety or the safety of a member of that person’s immediate
family, and the person is actually placed in such fear.” RSA 633:3-a, I(a).
“Course of conduct” is defined as two or more acts over a period of time, however
short, which evidences a continuity of purpose. RSA 633:3-a, II(a). A course of
conduct may include, among other things, “[t]hreatening the safety of the
targeted person,” “[f]ollowing, approaching, or confronting that person,” or
“[a]ppearing in close proximity to, or entering the person’s residence, place of
employment, school, or other place where the person can be found.” RSA 633:3-
a, II(a)(1)-(3). However, a course of conduct does not include constitutionally
protected activity, nor conduct that was necessary to accomplish a legitimate
purpose independent of making contact with the targeted person. RSA 633:3-a,
II(a). The plaintiff bears the burden to prove “stalking” by a preponderance of the
evidence. RSA 633:3-a, III-a; Fisher, 155 N.H. at 190.
In this case, the trial court found, among other things, that the defendant,
who had an affair with the plaintiff’s wife, sent two vulgar emails to the wife
containing threats of physical harm to the plaintiff, and that, thereafter, the wife
showed those emails to the plaintiff. The court also found that the defendant had
driven slowly by the plaintiff’s two homes, and noted that, although the
defendant lived in close proximity to one of the homes, “there appears to be no
legitimate reason why he would need to be driving by the plaintiff’s [second]
residence.” Additionally, the court found that, after an initial temporary
protective order had been issued, the plaintiff encountered the defendant parked
on the side of the road near the bus stop for the plaintiff’s minor child, and that
the defendant, who had a bow and arrow, “raised his hands at the plaintiff.” The
court observed that “[e]ven assuming defendant may not have been acting
unlawfully by being in that area, he should not have confronted the plaintiff or
interacted with him in any manner.” The court found that the plaintiff “testified
credibly as to his legitimate fear for the safety and well-being of himself and his
family,” and that “despite the existence of a restraining order, thereafter
defendant interacted directly with the plaintiff. The plaintiff’s claim of fear is
reasonable.”
We first address the defendant’s argument that the trial court erred by
finding that the defendant had driven by both of the plaintiff’s houses, when
“there was no notice of an allegation regarding a second home in the petition.”
We are not persuaded. Although the defendant is correct that the allegations in
the stalking petition “set the contours of the hearing contest,” South v. McCabe,
156 N.H. 797, 799 (2008) (quotation and brackets omitted), here, the allegation
that “[the defendant] has driven by my house on several occasions stopping in
the roadway in front for a period of time, then driving away,” was expressly pled.
That this allegation was clarified at the hearing to refer to both of plaintiff’s
homes does not amount to the trial court impermissibly “admit[ting] evidence on
unnoticed charges,” id. (quotation omitted).
Next, we address the defendant’s argument that, in finding that he had
stalked the plaintiff, the trial court erred by considering the threatening emails he
sent to the plaintiff’s wife. Although, at the hearing, the defendant acknowledged
the overtly threatening nature of the emails, he contends that he was merely
“venting” to the plaintiff’s wife, and that he did not intend for the emails to be
seen by the plaintiff. Accordingly, he argues that, without a finding of intent, the
trial court erred by considering the emails as part of “a course of conduct
targeted at a specific person.” RSA 633:3-a, I(a). We disagree.
As set forth above, a person commits the offense of stalking if, among other
things, that person “[p]urposely, knowingly, or recklessly engages in a course of
conduct targeted at a specific person which would cause a reasonable person to
fear for his or her personal safety . . . and the person is actually placed in such
fear.” RSA 633:3-a, I(a). Thus, even if, as the defendant contends, he did not
intend for the plaintiff to see the emails, the emails can still be considered part of
a course of conduct targeted at the plaintiff if the defendant acted recklessly. “A
person acts recklessly with respect to a material element of an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct.” RSA 626:2, II(c) (2016).
Here, the trial court reasonably found that the act of sending emails to the
2
plaintiff’s wife that threatened bodily harm to her husband raised a “substantial
likelihood” that the plaintiff would learn of the threats, regardless of whether the
defendant meant for the wife to share them with the plaintiff. Although the
defendant contends that, in so finding, the trial court applied the wrong
standard, we understand the trial court’s order to mean that the court found that
the defendant had acted recklessly. See Choquette v. Roy, 167 N.H. 507, 513
(2015) (“The interpretation of a trial court order is a question of law, which we
review de novo.”); cf. Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571,
586 (2004) (stating that we assume the trial court made all subsidiary findings
necessary to support its general finding).
Next, we address the defendant’s argument that the trial court erred by
considering the incident near the child’s bus stop in which the defendant, after
the issuance of the temporary protective order, had a bow and arrow and “raised
his hands at the plaintiff.” Although, on appeal, the defendant acknowledges
that he violated the temporary protective order, he nonetheless argues that the
trial court erred by considering the incident as part of the course of conduct
because the court failed to find that his actions were targeted at the plaintiff, and
that they would have caused a reasonable person to fear for their safety. We are
not persuaded. Here, the trial court plainly found, and the record supports its
findings, that the defendant “raised his hands at the plaintiff,” (emphasis added),
and that “the plaintiff’s claim of fear is reasonable,” given that “despite the
existence of a restraining order,” the “defendant interacted directly with the
plaintiff.” Although the defendant also contends that the evidence does not
support the court’s finding that he had a bow and arrow during this incident, we
conclude, based upon our review of the record, that the trial court could have
reasonably so found. See Fisher, 155 N.H. at 190 (observing that we view the
evidence in the light most favorable to the plaintiff as the prevailing party).
Lastly, the defendant contends that the evidence was insufficient to
support the trial court’s decision. Although the defendant’s argument is
premised on the faulty assumption that the trial court erred with respect to the
issues discussed above, we nonetheless note that we conclude, based upon our
review of the record, that the evidence was sufficient to support the trial court’s
finding, by a preponderance of the evidence, that the defendant stalked the
plaintiff. See Fisher, 155 N.H. at 190.
Affirmed.
MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Timothy A. Gudas,
Clerk
3