Fisher v. Minichiello

DALIANIS, J., concurring specially. I agree that given our deferential standard of review, the evidence was sufficient to support a finding under RSA 633:3-a (Supp. 2006). We review sufficiency of the evidence claims 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. Fichtner v. Pittsley, 146 N.H. 512, 515 (2001). We accord considerable weight to the trial court’s judgments on the credibility of witnesses and the weight to be given testimony. Id. The record in this case supports the trial court’s entry of a protective order under RSA 633:3-a, I. It includes evidence that the defendant engaged in a course of conduct, including telephone messages and threatening phone calls and statements directed towards the plaintiff. It also includes evidence that the plaintiff was afraid for her own safety and that her fear was reasonable. Thus, I concur with the majority that the record supports the trial court’s finding that the plaintiff was the “targeted individual” here. See RSA 633:3-a, 1(a). I also concur with the majority that the “targeted individual” may be stalked through persons other than family members, such as employees, see State v. Gubitosi, 152 N.H. 673, 681-82 (2005). I write separately, however, because I believe that the defendant’s conduct did not amount to stalking as it is commonly understood. The record reveals that the defendant was disgruntled about the care given to her parents, especially her mother. She aggressively complained *195 about claimed staff abuses of her mother. There were angry exchanges between the defendant and the staff. She was an irate customer, demanding better services from a business. The trial court could have found that her conduct should have been curtailed, but I question whether a stalking petition was the proper vehicle for doing so, especially as other remedies were available. In 1993, New Hampshire followed more than thirty other states in establishing the crime of stalking by enacting House Bill (HB) 476. HB 476 was entitled “An Act Establishing the Crime of Stalking and Authorizing the State to Enforce Domestic Violence Protective Orders Issued in Other States.” Laws 1993, ch. 173. As this title suggests, and as their remarks during legislative hearings on the bill demonstrate, domestic violence was a chief concern of the bill’s sponsors and supporters. The bill’s sponsor, Representative Donna Sytek, testified before the senate judiciary committee: “I had no idea ... that there is such a wide spread need in New Hampshire for legislation to allow the police to interfere before a domestic violence situation escalates into violence.” Senate Comm, on Judiciary, Hearing on HB 476 (April 12, 1993). Sandra Matheson, Director of the State Office of Victim and Witness Assistance of the Attorney General’s Office, urged passage “on behalf of the Attorney General’s Office and the many survivors of domestic violence murders.” HOUSE COMM. ON CORRECTIONS AND CRIMINAL JUSTICE, HEARING on HB 476 (Jan. 28,1993). Similarly, at the hearing in the house corrections and criminal justice committee, Representative Carl Johnson stated: “Harassing and threatening behaviors toward innocent people is a serious problem particularly for victims of domestic violence and sexual abuse.” Id. At the same hearing, Senator Susan McLane noted that many women whose husbands or boyfriends murdered them, stalked them before doing so. Id. As Representative Peter Burling remarked, “Domestic violence is becoming a national sport____Stalking is a part of this.” Id. In addition, Governor Stephen Merrill, law enforcement officers, prosecutors and stalking victims testified about domestic violence and similarly threatening behavior. Id.; see Senate Comm, on Judiciary, Hearing on HB 476 (April 12,1993). While the statute as written is not limited to domestic violence, the deliberations surrounding its passage were focused upon domestic violence and problems of like gravity, such as threatening strangers and obsessive former lovers. There is no indication in the legislative history that the intended purpose of the law was to protect businesses and their staff from overly aggressive consumers. Representative Sytek specifically noted that *196 “the legitimate activities of picketers, demonstrators,... or even pesky reporters” do not amount to stalking. N.H.H.R. JOUR. 242 (1993). I agree with Representative Sytek’s remarks; there is a difference between a “pesky” individual and a stalker. Unfortunately, under the statute as written, a “pesky reporter” or a labor picketer, who goes too far, could be convicted just as the defendant was. As written, I believe that the statute blurs the line between an aggressive customer and a calculating stalker.