Keith Garrett v. Laurie Garrett

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0009, Keith Garrett v. Laurie Garrett, the
court on May 20, 2015, issued the following order:

Having considered the defendant’s brief and the record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup.
Ct. R. 18(1). We affirm.

The defendant, Laurie Garrett, appeals a domestic violence final order of
protection granted by the Circuit Court (Sadler, J.) in favor of the plaintiff,
Keith Garrett. See RSA 173-B:5, I (Supp. 2014). She challenges the trial
court’s finding that she engaged in “abuse” for purposes of RSA 173-B:1, I
(Supp. 2014), arguing that the evidence was insufficient to prove that she
committed an enumerated crime, and that her conduct constituted a credible
present threat to the plaintiff’s safety. She further argues that the trial court
erred as a matter of law by failing to make a specific finding that she acted with
the requisite state of mind under RSA 631:2-a, I(a) (2007), and by considering
prior acts of domestic violence.

To be entitled to a domestic violence final order of protection, the plaintiff
must establish by a preponderance of evidence that the defendant engaged in
“abuse.” RSA 173-B:5, I. “Abuse” means the commission or attempted
commission of one or more enumerated crimes when the criminal conduct
“constitute[s] a credible present threat” to the plaintiff. RSA 173-B:1, I; see In
the Matter of McArdle & McArdle, 162 N.H. 482, 485 (2011). The trial court
“may consider evidence of such acts, regardless of their proximity in time to the
filing of the petition, which, in combination with recent conduct, reflects an
ongoing pattern of behavior which reasonably causes or has caused the
[plaintiff] to fear for his or her safety or well-being.” RSA 173-B:1, I. “A
credible present threat requires more than a generalized fear for personal
safety.” Hurley v. Hurley, 165 N.H. 748, 751 (2013) (quotation omitted).

We review sufficiency of the evidence claims as a matter of law,
upholding the trial court’s findings and rulings unless they lack evidentiary
support or are tainted by legal error. Walker v. Walker, 158 N.H. 602, 608
(2009). We view the evidence in the light most favorable to the plaintiff and
defer to the trial court’s judgments as to the credibility of the witnesses and the
weight of their testimony. Id.

Viewed most favorably to the plaintiff, the evidence here establishes that
at approximately 1:00 a.m. on October 18, 2014, the defendant returned home,
woke the plaintiff up, and attempted to continue an argument in which the
parties had been engaged earlier in the evening. When the defendant
approached the plaintiff in an aggressive manner, the plaintiff acted as though
he were recording her on his cell phone. According to the plaintiff, he had been
sleeping with his cell phone nearby ever since an incident that occurred on
September 15, 2014 (September 15 altercation), during which the defendant
assaulted him. The plaintiff’s purpose in sleeping with his cell phone was to
“record any possible acts of aggression,” or otherwise “mitigate any sort of
arguments or anything like that that may happen.” During the October 18
incident, however, the plaintiff did not actually record the defendant.

The defendant responded to the feigned recording of her by calling him
obscene names and coming at him in an angry manner with both hands raised.
The defendant “grab[bed the plaintiff’s] cell phone and kind of like a tug of war
happened. You know, there’s a lot of pawing. You know, she was hitting [his]
hands a little bit trying to get [his] cell phone free.” As a result, the cell phone
fell to the floor, and when the plaintiff sat up and attempted to retrieve it, the
defendant fell. The defendant got up and began “reaching and scratching and
striking [the plaintiff] . . . around the neck. She was reaching around [his]
neck in an attempt to possibly choke [him].” The defendant stopped the attack
after the plaintiff relaxed his arms, stopped reaching for the cell phone, told the
defendant that she was “not hurting [him], . . . not choking [him], and [that he
was] not going to hit [her] back,” and asked the defendant what she “want[ed]
to come of this.”

The defendant then called the police. She asserted that she had fallen
during the altercation because the plaintiff had pushed her into a coffee table.
When officers arrived to investigate what had occurred, they discovered
scratches and markings on the plaintiff’s neck. Ultimately, the defendant, but
not the plaintiff, was taken into custody and charged with assault.

The plaintiff testified that the September 15 altercation similarly arose
out of an argument. The plaintiff testified that, during the argument, the
defendant twice threw a hardcover book at him, chased him out of the house
while he was barefoot and in his underwear, locked him out of the house, and
punched him in the jaw when he returned. The plaintiff testified that he did
not report the September 15 altercation to the police because he was concerned
about the wellbeing of the parties’ children and that he might be arrested.

Following the September 15 altercation and prior to the October 18
altercation, the defendant sent the plaintiff a text message concerning a
dispute in which she told him that she “know[s] how to start trouble if [she]
wants,” and that she is “much more aggressive than this.” The plaintiff
testified that, after the October 18 altercation, he was concerned for his safety,

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and that, without a restraining order, he feared the defendant would attack
him again.

In granting the protective order, the trial court checked the box on the
preprinted form finding that the defendant had engaged in “[a]ssault or
reckless conduct as defined by RSA 631:1 through RSA 631:3.” Specifically,
the trial court found that the defendant had committed the abuse by “caus[ing]
unprivileged physical contact when she grabbed at [the plaintiff’s] cell phone
and hit his hand and then grabbed at his throat.” The trial court further found
that the defendant’s conduct constituted a present credible threat to the
plaintiff’s safety because her “violence [was] escalating such that [she] has now
been charged criminally.” This appeal followed.

At the outset, we reject the defendant’s argument that the trial court
erred by not specifically finding that she had acted with the requisite state of
mind. We note that the defendant did not bring this purported deficiency in
the trial court’s order to its attention in a motion for reconsideration. Fam. Div.
R. 1.26(F) (any issues which could not have been presented to the trial court
prior to its decision must be presented to it in a motion for reconsideration); N.H.
Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002). Even if she had
preserved this argument, however, the defendant cites no authority requiring
the trial court to make express findings as to each of the elements of the
underlying crimes constituting abuse for purposes of RSA 173-B:1, I. Nor are
we aware of any such authority.

We have construed RSA 173-B:5, I, to “require that a trial court . . .
make a specific finding of criminal conduct in order to issue a final restraining
order against a defendant.” Fillmore v. Fillmore, 147 N.H. 283, 285 (2001).
Here, that is precisely what the trial court did by finding that the defendant
engaged in “[a]ssault or reckless conduct as defined by RSA 631:1 through RSA
631:3” when she “caused unprivileged physical contact [by] grabb[ing] at [the
plaintiff’s] cell phone and hit[ting] his hand and then grabb[ing] at his throat.”
“Assault or reckless conduct as defined in RSA 631:1 through RSA 631:3” are
enumerated predicate acts that may give rise to a finding of “abuse.” RSA 173-
B:1, I(a). “Simple assault” includes “[p]urposely or knowingly caus[ing] bodily
injury or unprivileged physical contact to another.” RSA 631:2-a, I(a). Nothing
in Fillmore requires express findings as to each of the elements of the criminal
conduct. See Nordic Inn Condo. Owners’ Assoc. v. Ventullo, 151 N.H. 571, 586
(2004) (the trial court is presumed to have made all subsidiary findings
necessary to support its general finding).

Likewise, we reject the defendant’s argument that the trial court, in
finding that the defendant’s conduct constituted a credible present threat
because her violence “was escalating such that [she] has now been charged
criminally,” erred by considering prior incidents. As with the previous
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argument, the defendant failed to preserve this argument by failing to raise it
in a motion for reconsideration. Fam. Div. R. 1.26(F); Butland, 147 N.H. at
679. Even if she had preserved it, however, RSA 173-B:1, I, expressly
authorizes the trial court to consider “evidence of such acts, regardless of their
proximity in time to the filing of the petition, which, in combination with recent
conduct, reflects an ongoing pattern of behavior which reasonably causes or
has caused the [plaintiff] to fear for his or her safety or well-being.” Nothing in
this provision requires that each individual event constituting the pattern
cause the plaintiff to fear for his or her safety at the time that the event occurs.

Here, the evidence establishes that approximately one month prior to the
October 18 incident, the defendant twice threw a hardcover book at the
plaintiff and punched him in the jaw during the course of an argument.
During the same time period, she sent the plaintiff a text message warning that
she “know[s] how to start trouble” and is “much more aggressive.” The plaintiff
testified that in light of the similar September 15 altercation, the events that
occurred on October 18 caused him to fear a further assault. Under the
circumstances, the trial court reasonably could have found “an ongoing pattern
of behavior which reasonably causes or has caused the [plaintiff] to fear for his
. . . safety or well-being.”

We next address the defendant’s challenges to the sufficiency of the
evidence. The defendant argues that the evidence was insufficient to establish
that she purposely or knowingly caused unprivileged physical contact to him
because the cell phone was an object and not his person, because there was no
testimony that she grabbed his throat, and because there was no evidence that
she acted knowingly. She further argues that there was no evidence that she
demonstrated a “credible” threat to the plaintiff. We disagree.

“Unprivileged physical contact” for purposes of RSA 631:2-a includes all
physical contact not justified by law or consent; it is not limited to acts of
violence. State v. Blunt, 164 N.H. 679, 684 (2013). Although the cell phone
itself was not “another” within the meaning of RSA 631:2-a, the plaintiff was
holding it at the time that the defendant “grabbed” it and caused a “tug of war”
and “a lot of pawing” to ensue. Thus, the trial court reasonably could have
found that the defendant “caused unprivileged physical contact when she
grabbed at” the cell phone. Moreover, although the plaintiff may not have
stated specifically that the defendant “grabbed at his throat,” he testified that
she was “reaching and scratching and striking [him] . . . around the neck,” and
was “attempt[ing] to possibly choke” him. The evidence establishes that the
defendant had scratches and marks on his neck as a result of the attack.
Under these circumstances, the trial court reasonably could have found that
the defendant caused unprivileged physical contact by “grabb[ing] at [the
plaintiff’s] throat.”

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 With respect to the defendant’s state of mind, we have repeatedly
observed that “persons rarely explain to others the inner workings of their
minds or mental processes.” State v. Tayag, 159 N.H. 21, 24 (2009) (quotation
omitted). Here, the trial court reasonably could have inferred from the
defendant’s conduct, in light of all of the circumstances, including the
scratches and marks that she caused, that she acted knowingly. See id.

Finally, there was more than ample proof that the defendant posed a
credible present threat to the plaintiff’s safety. The evidence establishes two
separate altercations during a span of approximately one month in which the
defendant physically assaulted the plaintiff during the course of an argument,
and a third incident in which she sent him a threatening text message. The
most recent assault caused physical marks to appear on the plaintiff’s body,
and led to criminal charges. The plaintiff testified that he feared for his safety,
and was concerned that the defendant would assault him again. Although the
defendant disputed at trial that a photograph of the plaintiff taken after the
October 18 assault showed scratches, she conceded that it showed “something
on his neck.” We conclude that the trial court reasonably could have found
that the defendant’s conduct constituted a credible present threat to the
plaintiff’s safety.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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