Despres v. Hampsey

33 A.3d 1133, 162 N.H. 398
CourtSupreme Court of New Hampshire
DecidedSeptember 20, 2011
DocketNo. 2010-476
StatusPublished
Cited by16 cases

This text of 33 A.3d 1133 (Despres v. Hampsey) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Despres v. Hampsey, 33 A.3d 1133, 162 N.H. 398 (N.H. 2011).

Opinion

Hicks, J.

The defendant, Kevin Hampsey, appeals a final stalking protective order, see RSA 633:3-a (2007), issued against him by the Jaffrey-Peterborough District Court (Runyon, J.). We affirm.

The trial court found, or the record supports, the following facts. The plaintiff, Jessie Despres, and her three children resided in an apartment for which the defendant’s company is the property manager. She testified that the defendant frequently stopped by or walked into her apartment unexpectedly, and that he made sexual comments and advances toward her. She recounted a specific incident that occurred in March 2010, when she called the defendant because her basement had flooded. After checking the basement, the two went outside. The plaintiff testified that she was in her pajamas and felt uncomfortable, and that the defendant “made comments on how he wished he would have caught [her] in less clothes and then proceeded to kiss [her] in [her] right ear,” slam his body into hers, and tell her he wanted to have sexual intercourse with her. She told the court that she felt threatened and intimidated by the defendant, and that her “kids are intimidated by the constant drive-by’s, . . . which are . . . followed by either calls or him stopping in.”

The trial court found:

[The defendant’s] behavior constituted a “course of conduct” finder RSA 633:3-a, II, (a), (2) & (3) & (b), in that on two or more occasions when the defendant had no legitimate official purpose for doing so, he entered the plaintiffs apartment unannounced and without prior consent and confronted her there, when she was not dressed, with sexual remarks that would cause a reasonable person to fear for her safety; and further, that such unannounced entries would cause the plaintiffs minor children to fear that such intrusions by an unwelcome stranger could occur unexpectedly at any time.

On appeal, the defendant argues that the trial court erred in: (1) failing to make findings of two or more specific acts that constitute stalking; (2) making findings that are unsupported by the record; (3) failing to weigh the credibility of the witnesses; and (4) issuing a stalking order where “most of [the plaintiff’s] allegations were too vague and non-specific for [him] to respond to.”

This appeal raises issues of statutory interpretation and sufficiency of the evidence. “In matters of statutory interpretation, we are the final arbiters of the legislature’s intent as expressed in the words of the statute considered as a whole.” Fisher v. Minichiello, 155 N.H. 188, 191 (2007).

[401]*401We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. When the language of a statute is clear on its face, its meaning is not subject to modification. We will neither consider what the legislature might have said nor add words that it did not see fit to include.

Walker v. Walker, 158 N.H. 602, 605 (2009) (quotation omitted). With respect to sufficiency of the evidence claims, we review them “as a matter of law and uphold the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law.” Fisher, 155 N.H. at 190. ‘We view the evidence in the light most favorable to the plaintiff” and “accord considerable weight to the trial court’s judgments on the credibility of witnesses and the weight to be given testimony.” Id.

The statute at issue provides, in pertinent part:

I. A person commits the offense of stalking if such person:
(a) Purposely, 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;
II. As used in this section:
(a) “Course of conduct” means 2 or more acts over a period of time, however short, which evidences a continuity of purpose. A course of conduct shall not include constitutionally protected activity, nor shall it include conduct that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person. A course of conduct may include, but not be limited to, any of the following acts or a combination thereof:
(2) Following, approaching, or confronting [the targeted] person, or a member of that person’s immediate family.
(3) Appearing in close proximity to, or entering the person’s residence, place of employment, school, or other place where the [402]*402person can be found, or the residence, place of employment or school of a member of that person’s immediate family.

RSA 633:3-a.

The defendant first contends that “the trial court made a general finding that ‘on two or more occasions when the defendant had no legitimate official purpose for doing so, he entered the plaintiffs apartment unannounced and without prior consent.’ ” He argues that this finding is insufficient because the “court found only that a category of actions had happened, without making any findings of specific acts.”

We have held that “when issuing a stalking order in response to a civil petition filed pursuant to RSA 633:3-a, Ill-a, the trial court must make findings on the record that a defendant engaged in two or more specific acts over a period of time, however short, which evidences a continuity of purpose.” Fisher, 155 N.H. at 193 (quotation omitted). That holding established conformity between the requirements for civil stalking orders under RSA 633:3-a and protective orders under RSA chapter 173-B, as directed by RSA 633:3-a, Il-a. See id. We reasoned that “in order to be consistent with our interpretation of RSA 173-B:5 in [Fillmore v. Fillmore, 147 N.H. 283 (2001)], we must conclude that RSA 633:3-a, 11(a), which also contains an enumerated list of prohibited conduct, likewise requires specific findings of the course of conduct, which is defined as two or more acts.” Id. Thus, we required that the trial court identify two or more specific acts that constitute prohibited conduct as enumerated in the statute; we did not mandate any more specificity than what the statute itself requires.

Accordingly, we are unpersuaded by the defendant’s argument, with respect to the finding that he had entered the plaintiffs apartment “unannounced and without prior consent,” that he “is left wondering when the incidents might have occurred.” Neither the statute nor our case law requires the plaintiff to provide the specific dates upon which the prohibited acts occurred; rather, the statute requires “2 or more acts over a period of time, however short.” RSA 633:3-a, 11(a); cf. In the Matter of Sawyer & Sawyer, 161 N.H. 11, 16 (2010) (noting that while our case law “mandate[s] that the misconduct prompting a domestic violence petition not be too distant in time,” it does not “oblige[] a plaintiff seeking a temporary protective order to set forth the specific dates upon which he or she allegedly suffered abuse”).

The defendant likens this case to Kiesman v. Middleton, 156 N.H. 479 (2007), in which we vacated a stalking order because the trial court failed to make specific findings. Kiesman, 156 N.H. at 481-82; see South v. McCabe,

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Cite This Page — Counsel Stack

Bluebook (online)
33 A.3d 1133, 162 N.H. 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/despres-v-hampsey-nh-2011.