Vince B. v. Sarah B.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
VINCE B., )
) Supreme Court No. S-16616
Appellant, )
) Superior Court No. 3SW-16-00120 CI
v. )
) OPINION
SARAH B., )
) No. 7264 – July 27, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Kenai, Anna Moran, Judge.
Appearances: Andy L. Pevehouse, Gilman & Pevehouse,
Kenai, for Appellant. Jimmy E. White, Hughes White Colbo
Wilcox & Tervooren, LLC, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
A man appeals a long-term domestic violence protective order entered
against him for stalking his ex-wife. He argues that the superior court: (1) abused its
discretion and violated his due process rights in its treatment of his ten-year-old son’s
proposed testimony; (2) violated the doctrine of ripeness by warning that future conduct
could justify a stalking finding; (3) violated the doctrine of res judicata by reconsidering
a claim that it previously had adjudicated in an earlier domestic violence petition; and
(4) failed to make requisite findings of fact meeting the elements of stalking. He asks us
to vacate the order. Seeing no error, we affirm the superior court’s protective order.
II. FACTS AND PROCEEDINGS
A. Facts
Sarah and Vince B.1 divorced in September 2016 and share custody of their
two sons, ages 12 and 9. The couple separated two and a half years prior to the divorce;
the proceedings have been prolonged and unfriendly. The parties have struggled to
communicate in the course of their shared custody, often hurling profanities at one
another. Sarah’s new boyfriend has been a particular source of conflict. In February
2016 Vince dropped the children off at Sarah’s boyfriend’s house while she was not
present. Vince struck Sarah’s boyfriend in the face, prompting a call to the police.
Several other hostile exchanges in 2016 led Sarah to file two domestic violence
protective order petitions. The first was denied; the second was granted, in part based
on testimony from the first petition, and is the subject of this appeal.
1. First petition
In April 2016, while the divorce case was pending, Sarah filed the first
domestic violence protective order petition against Vince. At the hearing, corroborated
by two witnesses, Sarah testified that Vince had shoved her and made crude comments
in a school gym where both were attending a school concert. Sarah also testified that
Vince had punched her boyfriend in front of their children, that he “said cruel words” to
her, and that he twice drove by her place of work, once making an offensive hand
gesture.
Vince denied the crude statements and said he “accidentally bumped the
side of her back” with his knee in the school gym. He perceived that Sarah “kind of
1
We use initials to protect the parties’ children’s privacy.
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lunged sideways towards her friends” and that her physical response to his contact was
an overreaction. Vince also testified that he had serious problems with Sarah’s boyfriend
because he had “criminal stalking charges against him” as well as multiple restraining
orders and Vince believed it “psychologically dangerous to [his] children” to be at her
boyfriend’s house.
The court denied the petition despite finding there was “good circumstantial
evidence” that Sarah “was shoved, and this was more than a mere accident.” The court
nevertheless held that Vince’s conduct did not rise to the level of harassment, assault, or
stalking. With specific respect to stalking, the court explained that “the hard part for
[stalking] is it has to be a course of conduct, so more than one incident, that places her
in fear of death or physical injury.” The court found that Vince’s course of conduct did
not yet “rise to the level of stalking.” Talking to both Sarah and Vince, the court did,
however, put Vince on notice that another wrong move could make Sarah eligible for a
domestic violence stalking order:
But I tell you all this because I’m not finding domestic
violence in this instance, but I’m putting [Vince] on [notice]
that he’s now engaged in a course of conduct that has placed
you in fear of physical injury, and if he does — touches you
. . . or do[es] anything else to you, I will issue a DV order,
okay, because now you have engaged in a course of conduct.
You know, flipping her off, coming into the bleachers,
sitting down next to her when you knew she didn’t want you
to be there, or she moves away from you, you leave and you
come back, and I don’t buy it for a minute that you
inadvertently kneed her in the back, I don’t buy it for a
minute.
So because of that finding, if you do anything else to
her, she will be in fear of imminent physical injury and you
will be — you will be eligible — she will be eligible for a
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domestic violence stalking order and you could be facing
criminal charges. I just want that really clear. Is that clear?
Vince indicated he understood, responding, “Yes, ma’am.”
To address Vince’s concerns about Sarah’s boyfriend, the court required
that the boyfriend not have contact with the children. But the court also suggested that
Vince get mental health counseling because his obsession with Sarah’s partners was
“sounding kind of creepy.” The court repeatedly warned Vince that he should avoid
contacting Sarah or her boyfriend in a manner that suggested stalking. Notably, the court
told Vince that “he can’t be driving by or acting in a certain way or he could be subject
to domestic violence stalking. So I just want that really clear . . . .” The court further
suggested the parties limit their texts and other communications to those concerning the
children.
2. Post-divorce
The parties reached a custody agreement in July 2016, and by September
Sarah and Vince finalized their divorce. Their communications continued to sour
thereafter. Vince’s emails were increasingly aggressive in tone and content. Vince
referenced Sarah’s “unnecessary, hurtful, nasty and hate filled rhetoric toward” him,
calling it “emotionally damaging.” Vince threatened to call the police if Sarah’s
boyfriend contacted him, and he requested that Sarah not speak to him unless through
an attorney. In a September email Vince called Sarah profane names, blaming her for
a provision in their divorce settlement requiring him to sell a property where his father
was living and had planned to retire.
In an October email Vince lambasted Sarah for her relationships with other
men and their impact on the children. He used sexually explicit profanities and wrote:
“You need to make sure that [your boyfriend] understands if he is around our kids let
alone continues to yell and verbally, [m]entally or physically abuse our kids he is going
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to be. Very. Very. Very Sorry.” The next day Vince and Sarah got into a heated
argument over their custody days and Vince threatened to call the police if Sarah did not
give him the children. In November Vince informed Sarah that he “might be” traveling
to visit his ailing father, and he wrote: “Be sure and tell [your attorney] so he can tell the
judge what a no good SOB I am for leaving again.”
3. Second petition
In late December Sarah again petitioned for a long-term domestic violence
protective order. Sarah alleged that since their last court appearance Vince had
continued to harass her by text, email, and phone. Sarah relayed that on Christmas Eve,
he called “[her] cell to talk to [their] children”; after he was done, he asked to speak to
her. Sarah put him on speaker phone with her mother in the room. Vince proceeded to
yell, call her profanities, and make explicit comments about her sexual relations with her
boyfriend.
Sarah contended that two days after the hostile Christmas Eve phone
conversation, she met Vince for their scheduled exchange of the children. The boys got
out of her car and walked to his without any communication between the parents. Vince
drove away first; Sarah left after him. Vince had pulled over on the side of the road, and
Sarah passed him while she was on her way to her boyfriend’s house. After Sarah
arrived at her boyfriend’s house, she saw Vince’s truck drive slowly by and then double
back, stopping at the end of the driveway. Because Sarah’s boyfriend and Vince had
previously fought in front of the children and each man had taken legal steps to avoid
future contact with the other, she could think of no good reason for Vince to follow her
there. He then drove into the driveway and parked in front of the house. According to
Sarah, she felt “pani[c]ky” and called the troopers. She feared that the situation would
“escalate” without their involvement and that Vince could “snap” given his post-
traumatic stress disorder (PTSD) diagnosis and the fact that he “packs a gun with him.”
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In response to Sarah’s petition, a magistrate judge granted a 20-day ex parte
domestic violence protective order and set a hearing for January 12, 2017. Vince moved
to change the hearing date and to allow his son, who was then ten years old, to testify.
Vince stated that, although he did not want to involve his young son, his son was his
“only witness” and could testify that the reason Vince was at Sarah’s boyfriend’s house
“was simply because [the child] needed something from his mother and wished to speak
with her.”
B. Proceedings
The parties, without counsel, telephoned in for a brief hearing on
January 10. They discussed the son’s testimony and agreed to continue the domestic
violence hearing to January 13. The court repeatedly questioned the necessity of the
child’s testimony and eventually suggested: “[L]et’s keep [the child] out of it and let’s
just assume that [he] would testify that his dad brought him there to talk to [his mom] and
he went to the door.” Vince and Sarah both agreed that they did not want their son to
have to testify and that he need not attend trial.
The court also recommended that the parties familiarize themselves with
criminal trespass and stalking statutes. When Vince expressed confusion, the court
explained that “[s]talking usually is a course of conduct,” and again directed Vince to
look at the statute defining stalking in the second degree because “that’s what the [c]ourt
has to base its decision on.”
Both Vince and Sarah testified at the hearing, where they were represented
by counsel. Sarah’s testimony was largely consistent with her petition. She testified
about the emails and phone call preceding the incident and about how Vince’s
increasingly aggressive tone placed her in fear. She also described a hostile encounter
at their son’s birthday party, when Vince suddenly “demand[ed]” she end the party and
exchange the children with him, repeatedly stating: “If you don’t give me my kids, I will
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call the cops.” Sarah testified that when Vince followed her to her boyfriend’s house
without notice, with the children in the car, she “panicked” and called the troopers
because she feared violence and “[t]here was no reason for him to be there.” She added
that over the eight years of their marriage Vince had taken antidepressants for PTSD and
mood swings; she believed “he’s ready to snap” and “needs mental help.”
During Sarah’s cross-examination, the court took the opportunity to
“redirect” Vince’s counsel, who was not present at the hearing on the first petition, to
focus on the stalking issue. The court explained it was considering whether these recent
incidents combined with the kneeing incident placed Sarah in fear of physical injury:
There was no question that something happened [at the
school gym] and that she was afraid. I thought it was more
50/50. I couldn’t get the one percent.
But I can tell you his behavior since then is convincing
me that one percent is tipping in her favor. And we had a lot
of testimony about what’s going on, the behavior between
these two parties and . . . I thought he [had] mental health
issues, because he kind of liked to intimidate, or he was
unwinding . . . at the trial. It sounds like he’s continuing to
unwind, and that subsequent behavior I can consider and
revisit . . . the testimony I’ve already heard, which I said was
really close. It was . . . by a hair. That hair is tipping now in
her favor, just so you know where I’m coming from.
After Sarah finished testifying, Vince relayed his version of events. Vince
explained that he had stopped alongside the road because his son was “panicking because
he needed [a particular] game” and Vince “walked along the side of the pickup on the
passenger’s side to help him look for this game.” When they couldn’t find the game,
Vince testified he saw “[his] ex-wife [drive] by, so I followed her out to [her boyfriend’s]
house.” Because he had been there only once before, he relied on his children to give
him directions and missed the driveway. After circling back, Vince testified that he “got
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out of the pickup with [the child], [and] walked to the door.” He then “knocked on the
door like three or four times . . . probably 15, 20 seconds at the door,” before “walk[ing]
back to [his] pickup so [the child] could speak to his mother and get the game he
wanted.” When no one answered the door after a few minutes, they went home.
Vince explained he did not just call or text Sarah because they “don’t
communicate” and she “rarely answers the phone” when he calls. But he admitted that
“with all this that’s going on, I probably should not have driven out there with my son
so he could get the game.”
The court granted the petition, finding that the dynamic between the former
couple was more than merely unpleasant and that the sum of Vince’s actions had placed
Sarah in fear of physical injury. The court noted that it had been “very clear with
[Vince] at the last hearing,” warning him that it was a “close case” and recommending
that he “get some mental health counseling” because he was “overly obsessed with
[Sarah] and her boyfriend” and “subsequent behaviors could cause the court to revisit
this issue.” The court observed that Vince’s “obsession with [Sarah’s] relationship . . .
is continuing. . . . All of his claims are about concern and safety for his kids, but they
always circle back to [Sarah’s] relationship . . . .”
The court found Vince’s explanation about picking up a video game
“extremely wishy washy,” given the history of hostility between him and Sarah’s
boyfriend, Vince’s efforts to keep his children away from the boyfriend, and the
availability of other avenues, like phone or text, to resolve the issue. It then concluded:
I think this is a course of conduct, him driving by her work
and going to the school, coming sitting next to her. He did
push her. That’s enough to recklessly place fear in her of
some kind of physical injury.
So I am finding he is gone over the top and now by a
preponderance of the evidence that there is stalking . . . .
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The court found stalking in the second degree2 and granted the domestic violence
protective order. Vince appeals.
III. STANDARD OF REVIEW
The superior court’s decision to grant or deny a protective order is reviewed
for abuse of discretion.3 So too is the decision whether to let a child testify.4 Whether
there was a violation of due process is a question of law.5 Interpretation of a statute is
also “a question of law which involves this court’s independent judgment.”6 “We apply
our independent judgment to issues of res judicata,”7 and “[q]uestions of ripeness are
2
See AS 11.41.270(a) (“A person commits the crime of stalking in the
second degree if the person knowingly engages in a course of conduct that recklessly
places another person in fear of death or physical injury, or in fear of the death or
physical injury of a family member.”).
3
Cooper v. Cooper, 144 P.3d 451, 454 (Alaska 2006).
4
See Helen S.K. v. Samuel M.K., 288 P.3d 463, 475 (Alaska 2012);
McMaster v. State, 512 P.2d 879, 881 (Alaska 1973); Sawyer v. State, 244 P.3d 1130,
1135-36 (Alaska App. 2011).
5
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207 (Alaska
2000).
6
Cooper, 144 P.3d at 434 (quoting Odum v. Univ. of Alaska, Anchorage, 845
P.2d 432, 454 (Alaska 1993)).
7
Patrawke v. Liebes, 285 P.3d 268, 271 n.7 (Alaska 2012) (quoting
McComas v. Kirn, 105 P.3d 1130, 1132 (Alaska 2005)).
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reviewed de novo.”8 We review the factual findings underlying a domestic violence
protective order for clear error.9
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion Or Violate
Procedural Due Process Regarding The Child’s Testimony.
Vince argues that the court abused its discretion and violated his due
process rights “by disbelieving” his son’s anticipated testimony after previously stating
“it would accept [the testimony] as true.” Vince contends it is procedurally unfair that
the court effectively “revers[ed]” its prior ruling and gave no warning that sparing the
child from the witness stand due to his age would deprive Vince of a defense. Vince
asserts that his son’s testimony was critical to his defense against stalking for two
reasons: first, it proved that knocking on Sarah’s boyfriend’s door was not a
“nonconsensual contact”; and second, it revealed that his actions could not, under an
objective standard, have placed Sarah in fear of physical injury. Vince claims that, but
for his reliance on the court’s representation that it would accept his son’s anticipated
testimony as true, he would have insisted his son testify at the hearing.
A decision to permit or exclude the testimony of a child witness generally
is reviewed for an abuse of discretion.10 When assessing a due process claim, we turn
8
RBG Bush Planes, LLC v. Kirk, 340 P.3d 1056, 1060 (Alaska 2015) (citing
State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska 2009)).
9
McComas, 105 P.3d at 1132.
10
See Helen S.K. v. Samuel M.K., 288 P.3d 463, 475 (Alaska 2012) (holding
court “did not abuse its discretion in deciding to conduct in camera interviews” rather
than have children testify in open court in child custody case); McMaster v. State, 512
P.2d 879, 881 (Alaska 1973) (holding decision to let particular witness testify is “left in
the sound discretion of the trial judge” and affirming decision to allow five year old to
(continued...)
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to the factors enunciated by the United States Supreme Court in Mathews v. Eldridge.11
We consider “[f]irst, the private interest that will be affected by the official action,” then
“the risk of an erroneous deprivation of such interest through the procedures used,” and
finally, “the Government’s interest, including the . . . fiscal and administrative burdens
that the additional or substitute procedures would entail.”12 We have held that a court’s
decision to control the manner in which a child’s testimony is taken into account does
not necessarily violate a parent’s due process rights.13
We are unpersuaded by Vince’s arguments. The due process assertion is
unavailing because the court’s approach to the child’s testimony posed no “risk of an
erroneous deprivation” of Vince’s interest in putting forth a defense to the stalking
allegation.14 At no point did the court mislead Vince by representing it would accept the
child’s anticipated testimony as true. The court stated, “let’s just assume that [the child]
would testify that his dad brought him there to talk to [his mother] and he went to the
door.” This was not an assurance that the child’s testimony would conclusively establish
10
(...continued)
testify); Sawyer v. State, 244 P.3d 1130, 1136 (Alaska App. 2011) (“It was not an abuse
of discretion for the judge to conclude that any marginal probative value of the children’s
testimony was outweighed by the danger of unfair prejudice . . . .”).
11
424 U.S. 319, 334-35 (1976); D.M. v. State, Div. of Family & Youth Servs.,
995 P.2d 205, 212 (Alaska 2000).
12
Mathews, 424 U.S. at 334-35.
13
See Helen S.K., 288 P.3d at 475 (“The parents’ due process rights were
observed by the summary of information from the [in-camera] interviews provided by
the court.”).
14
Mathews, 424 U.S. at 334-35.
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that Vince’s motives in driving to Sarah’s boyfriend’s house were benign or would
outweigh other credible testimony supporting a stalking finding.
Perhaps more significantly, the court did not deprive Vince of the benefit
or substance of the anticipated testimony. The court adhered to Vince’s version of what
his son would testify to and never stated that it was false. Vince suggests that because
the court remarked that “there was absolutely no reason for [Vince] to go to [Sarah’s
boyfriend’s] home,” it disbelieved that the child actually asked to speak to his mother
and retrieve a game. This mischaracterizes the court’s full holding — that Vince “could
have done this by phone or text or some other means” and that his justification for
following Sarah to her boyfriend’s house was not a reasonable one in light of other
credible testimony suggesting Vince’s actions here, despite “claims . . . about concern
and safety for his kids,” were more motivated by his “obsession” with his ex-wife’s new
relationship than the child’s need to pick up a game. Because the court adopted the
anticipated testimony Vince proffered and did not mislead him in any way, his due
process arguments fail.
We also conclude the court did not abuse its discretion by allegedly
“reversing its prior ruling” on the child’s testimony because, as discussed above, no such
reversal occurred. The court consistently said it would accept Vince’s version of what
the child would say if he took the stand, and it considered that version of events against
other testimony in its final ruling. Because no “revers[al]” occurred, the court’s findings
and conclusions at the hearing did not “substantially deviate from [its] earlier oral
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decision.”15 And the court was within its discretion to spare the child from testifying in
open court about a domestic violence and custody battle between his parents.16
We thus decline to vacate the protective order on either basis Vince asserts.
B. Neither Ripeness Nor Res Judicata Was Implicated.
Vince contends the superior court erred by considering the substance of the
first petition in its grant of the second, and he asks us to vacate the order on two grounds:
the doctrines of ripeness and res judicata. We examine each in turn.
1. Ripeness
Vince argues that the court’s warning to him at the May 2016 hearing —
that any future misconduct could result in a protective order — was a “prognosticative
ruling in violation of the doctrine of ripeness.”17 Because the court ruled that Sarah was
“not placed in fear” of imminent physical injury by the kneeing incident, Vince contends
15
See Ogden v. Ogden, 39 P.3d 513, 518 (Alaska 2001) (concluding
discrepancies between oral and written decisions required remand).
16
See Helen S.K., 288 P.3d at 475; Sawyer v. State, 244 P.3d 1130, 1136
(Alaska App. 2011); see also AS 12.45.046(b) (enumerating factors superior court must
consider in deciding whether child may testify in criminal proceedings, including “the
mental or emotional strain that will be caused by requiring the child to testify under
normal courtroom procedures”).
17
“A case is justiciable only if it has matured to a point that warrants
decision.” State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368 (Alaska
2009). A suit ripe for declaratory or injunctive relief will present “ ‘a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality.’ ” Jacko v. State, Pebble Ltd. P’ship, 353 P.3d 337, 340 (Alaska 2015) (quoting
Brause v. State, Dep’t of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska 2001)).
“[R]ipeness turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to
the parties of withholding court consideration.’ ” Brause, 21 P.3d at 359 (alteration in
original) (quoting 13A CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE &
PROCEDURE § 3532, at 112 (2d ed. 1984)).
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the court’s admonition that “if [he] [did] anything else to her, she [would] be in fear of
imminent physical injury” constituted a ruling over a speculative, inchoate dispute.
Vince characterizes this warning that he not do “anything” as “injunctive” and
“impermissibly over broad” given the parties’ regular interaction in sharing custody.
We conclude the superior court did not violate the doctrine of ripeness
when it warned Vince that he was on the road to placing Sarah in fear of physical injury
sufficient to satisfy a domestic violence finding. A reasonable reading of the court’s
reasoning does not suggest that the court bound itself to grant any petition Sarah brought
in the future, irrespective of its merits. Rather, the court was saying that Vince was
dangerously close to crossing over the threshold between an isolated incident that made
Sarah afraid and a course of conduct sufficient to establish stalking. This statement was
a warning, not a ruling, and thus does not raise issues of ripeness.
2. Res judicata
Vince also argues that res judicata barred the superior court from
considering the events of the first domestic violence petition, which it had previously
denied, to support its conclusion that Vince engaged in a course of conduct that
recklessly placed Sarah in fear of physical injury. He asserts that by doing so, the court
effectively reversed its earlier ruling that the kneeing incident did not place Sarah in fear
of imminent physical injury. Vince argues that the court relied exclusively on the
previously adjudicated kneeing incident to find that Sarah feared physical harm, pointing
to the court’s statement: “He did push her. That’s enough to recklessly place fear in her
of some kind of physical injury.” According to Vince, this exclusive reliance implicates
res judicata.
“Res judicata, or claim preclusion, bars relitigation of a claim when there
is ‘(1) a final judgment on the merits, (2) from a court of competent jurisdiction, (3) in
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a dispute between the same parties (or their privies) about the same cause of action.’ ”18
But the statutory elements of stalking in the second degree include whether “the person
knowingly engage[d] in a course of conduct that recklessly place[d] another person in
fear of death or physical injury, or in fear of the death or physical injury of a family
member.”19 A course of conduct is defined as “repeated acts of nonconsensual contact
involving the victim or a family member.”20 The statute requires the court to revisit past
conduct to decide the import of subsequent conduct. And we have held that the denial
of an earlier petition for a protective order does not necessarily bar the court from
considering the same conduct in deciding a later petition.21
Res judicata does not apply here for several reasons. First, Sarah’s second
petition raised new claims of stalking and harassment.22 Second, the parties did not
actually relitigate the kneeing incident, nor did the court reverse its previous decision.
18
McAlpine v. Pacarro, 262 P.3d 622, 625 (Alaska 2011) (quoting Angleton
v. Cox, 238 P.3d 610, 614 (Alaska 2010)).
19
AS 11.41.270(a) (emphasis added).
20
AS 11.41.270(b)(1).
21
See McComas v. Kirn, 105 P.3d 1130, 1135-36 (Alaska 2005) (holding res
judicata did not apply where court dissolved first protective order because ex-husband
was in prison but granted second protective order upon finding ex-husband continued
to contact victim while in prison and was soon to be released); Fardig v. Fardig, 56 P.3d
9, 11-12 (Alaska 2002) (holding neither res judicata nor collateral estoppel barred court
from considering issue of alleged drug use raised and dismissed in previous domestic
violence hearing because doing so in “the context of a motion to modify custody” and
upon evidence of new drug use did “not relitigate a past decision”).
22
See McComas, 105 P.3d at 1135-36; Fardig, 56 P.3d at 11-12; McAlpine,
262 P.3d at 627 (concluding res judicata did not bar mother from basing motion to
modify custody on past domestic violence incidents and new claims of domestic violence
that superior court had not addressed or sufficiently considered).
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In its hearing on the first petition, the court found that Vince had kneed Sarah
intentionally. Reference to this prior finding in the subsequent hearing did not constitute
a retroactive finding, relitigation, or reversal: the court simply considered whether the
kneeing incident, in conjunction with the incidents alleged in the second petition,
constituted a course of conduct that placed Sarah in fear of physical injury.
Finally, given that the statutory framework for domestic violence petitions
requires courts to consider a “course of conduct,”23 we conclude the superior court’s
revisiting of the kneeing incident was appropriate. To prohibit a court from considering
past behavior in the context of new alarming acts would defeat the statute’s mandate that
courts consider the full history of nonconsensual contacts in ascertaining whether
stalking occurred.24 The statute contemplates the reality that repeated nonconsensual acts
may place a person in greater fear of physical injury than isolated ones, and it does not
require actual physical violence in each instance.25 Although the court found Sarah was
neither placed in fear of imminent physical injury nor physically injured by Vince in the
kneeing incident, his continuing course of conduct recklessly placed her in fear of
physical injury, which is all the stalking statute requires.26 The court’s consideration of
conduct raised in the first domestic violence petition did not violate res judicata.
23
AS 11.41.270(a)-(b)(1).
24
See AS 11.41.270(b)(4).
25
See AS 11.41.270(b)(4)(A)-(I) (including within “nonconsensual contact”
definition acts such as “following or appearing within the sight of that person,”
“appearing at the workplace or residence of that person,” and “contacting that person by
telephone”).
26
See AS 11.41.270(a).
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3. Summary
In light of the foregoing, we conclude that neither ripeness nor res judicata
precluded the superior court from considering testimony from the first petition in
determining whether Vince’s course of conduct recklessly placed Sarah in fear of
physical injury.
D. It Was Not Clearly Erroneous To Find That Stalking Occurred.
A court may find stalking in the second degree “if the person knowingly
engages in a course of conduct that recklessly places another person in fear of death or
physical injury, or in fear of the death or physical injury of a family member.”27 The
statute defines course of conduct as “repeated acts of nonconsensual contact involving
the victim or a family member.”28 Contact is nonconsensual if it is: (1) “initiated or
continued without that person’s consent”; (2) “beyond the scope of the consent provided
by that person”; or (3) “in disregard of that person’s expressed desire that the contact be
avoided or discontinued.”29 Types of nonconsensual contact include, in relevant part:
“following or appearing within the sight of that person”; “approaching or confronting
that person in a public place or on private property”; as well as “appearing at the
workplace or residence of that person.”30
Vince argues that the superior court failed to make “detailed factual
findings” showing that the incident alleged in the second petition was a nonconsensual
contact or placed Sarah in reasonable fear of physical injury. He cites Petersen v. State
for the proposition that “contact is not nonconsensual merely because it is
27
Id.
28
AS 11.41.270(b)(1).
29
AS 11.41.270(b)(4).
30
AS 11.41.270(b)(4)(A)-(C).
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‘uncomfortable,’ ”31 and he argues that all the incidents alleged in the second petition
were consensual because they did not occur outside the scope of “Sarah’s consent to
contact with Vince” about shared custody. Vince asserts that “there was no evidence
presented that Sarah had ever expressed a desire that Vince never contact her at all, or
not contact her at her boyfriend’s house.”
Vince also asserts that the superior court did not explicitly find the
December 2016 incidents placed Sarah in fear of physical injury and could not have
plausibly done so, because “not knowing why someone knocks on your door is not a
reasonable basis to fear physical injury.” Vince believes that the court clearly erred
when it exclusively relied on the April kneeing incident, which it had previously found
did not place Sarah in fear of imminent physical injury, to determine that she was placed
in fear by the December incidents.
Vince’s arguments are unavailing. The court was not mistaken in its
determination that the acts alleged in the petition were nonconsensual, and, contrary to
Vince’s assertions, the court made factual findings supporting its determination that were
not clearly erroneous. Sarah’s boyfriend and Vince previously had physically fought on
the boyfriend’s property, prompting the boyfriend to seek a “no trespass” order against
Vince. At the hearing on the first petition, the court explicitly told Vince that he could
not “be driving by or acting in a certain way or he could be subject to domestic violence
stalking.” The court suggested that the parties limit their communications and ordered
that the boyfriend have no contact with the children at all. Sarah brought these petitions
31
930 P.2d 414, 431 (Alaska App. 1996) (discussing stalking statutes and
observing that Alaska Constitution protects “a person’s right to engage in uncomfortable,
distasteful, and annoying contacts — even abrasive confrontations — with other
citizens”).
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because she wanted to further limit her contact with Vince, especially when it came to
his interactions with her boyfriend.
Vince’s decision to follow Sarah to her boyfriend’s house after exchanging
the children met all three AS 11.41.270(b)(4)(A)-(C) “nonconsensual contact”
definitions. By following Sarah to her boyfriend’s house and knocking on the door three
or four times, Vince initiated a contact to which Sarah did not consent because she had
no notice; the contact fell outside the scope of communicating regarding child custody
arrangements, largely because of an order and custody provision Vince had requested
that Sarah’s boyfriend have no contact with Vince and Sarah’s children; and finally,
Vince “disregarded [Sarah’s] express desire” that in-person contact between herself and
Vince, as well as between Vince and her boyfriend, “be avoided or discontinued” in light
of past violence and harassment.32 The second petition thus alleged a new nonconsensual
contact that the court could consider in whether Vince engaged in a course of conduct.
It was also not clearly erroneous for the court to find that Vince’s course
of conduct placed Sarah in reasonable fear of physical injury. Although hearing a knock
on a door may not typically give rise to a fear of injury, Vince’s argument ignores the
context surrounding the relationship between the parties. Even Vince admitted, “with
all this that’s going on, I probably should not have driven out there with my son so he
could get the game.” The superior court’s decision navigated this context. The court
considered evidence of a past violent encounter on Sarah’s boyfriend’s property;
escalating anger in the communications between Vince and Sarah in the 48 hours prior
to the incident; and an order prohibiting contact between Sarah’s boyfriend and the
children. The court therefore reasonably found that Vince’s presence on the boyfriend’s
property, without any notice, was alarming and placed Sarah in fear of physical injury.
32
See AS 11.41.270(b)(4).
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Combined with testimony from the hearing on the first petition that Vince drove by
Sarah’s work and kneed her at the school, this was the basis upon which the court found
she was placed in physical fear by repeated nonconsensual contacts with him. Contrary
to Vince’s assertions, the court did not rely on the one incident in which he physically
touched Sarah to find fear of physical injury, but rather a course of conduct.
Vince’s arguments hinge on the notion that the court should divorce
individual incidents from their context and consider in isolation whether a single incident
placed the petitioner in fear of physical injury. The statute for stalking in the second
degree mandates otherwise, requiring the court to look at a pattern of behavior.33
Accordingly, we decline to vacate or remand on this ground.
V. CONCLUSION
The superior court’s decision to grant the long-term domestic violence
protective order is AFFIRMED.
33
See AS 11.41.270(a).
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