Hannah Jones v. Kevin Moul

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0285, Hannah Jones v. Kevin Moul, the
court on October 17, 2016, issued the following order:

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

The defendant, Kevin Moul, appeals the order of the Circuit Court
(Chabot, J.) granting a final domestic violence protective order to the plaintiff,
Hannah Jones. See RSA 173-B:5, I(a) (Supp. 2015). He argues that the
evidence was insufficient to support the court’s findings.

We review sufficiency of the evidence claims as a matter of law and
uphold the trial court’s findings and rulings unless they are lacking in
evidentiary support or tainted by error of law. Achille v. Achille, 167 N.H. 706,
715 (2015). We accord considerable weight to the trial court’s judgments on
the credibility of the witnesses and the weight to be given testimony. Id. at
715-16. We view the evidence in the light most favorable to the prevailing
party, in this case, the plaintiff. See id. at 716.

To obtain relief under RSA chapter 173-B, the plaintiff must show
“abuse” by a preponderance of the evidence. Id. “Abuse” is defined in RSA
173-B:1 to include the commission or attempted commission of one or more of
several criminal acts constituting a credible present threat to the plaintiff’s
safety. See 173-B:1, I (Supp. 2015); Achille, 167 N.H. at 716. The trial court
found that the defendant committed the criminal acts of sexual assault, as
defined in RSA 632-A:2 through RSA 632-A:5, see RSA 173-B:1, I(c), and
harassment, as defined in RSA 644:4, see RSA 173-B:1, I(g).

We cannot conclude that the evidence was insufficient to support the
court’s finding of abuse by sexual assault as defined in RSA 632-A:2 (2016)
through RSA 632-A:5 (2016). See RSA 173-B:1, I (defining abuse to include
the commission or attempted commission of one or more of the enumerated
criminal acts). The plaintiff testified that, although she had consented to
engaging in certain sexual contact with the defendant and a third party, she
specifically told him multiple times that she did not consent to engaging in
intercourse with him. Nevertheless, she testified that, at some point during the
evening in question when the defendant was alone with her, he grabbed her
arm, pushed her onto his bed, got on top of her, and engaged in intercourse
despite her repeated requests that he stop. The defendant stopped, according
to the plaintiff, only when he heard the third party approaching. The plaintiff
testified that she then “freaked out and left.” The defendant admitted that the
plaintiff told him to stop, but claimed that she only told him to stop when she
heard the third party approaching. We defer to a trial court’s judgment on
such issues as resolving conflicts in testimony, measuring the credibility of
witnesses, and determining the weight to be given evidence. In the Matter of
Aube & Aube, 158 N.H. 459, 465 (2009). Under these circumstances, there
was more than sufficient evidence to support the trial court’s finding that the
defendant engaged in sexual assault as defined by RSA 632-A:2 through RSA
632-A:5. See, e.g., RSA 632-A:2, I(m) (defining aggravated felonious sexual
assault to include sexual penetration with someone who, at the time of the act,
indicates by speech or conduct that there is no freely given consent to the
sexual act). Accordingly, we need not address whether the evidence supported
the finding that the defendant engaged in harassment.

The defendant also argues that the evidence was insufficient to support a
finding that he represented an ongoing, credible threat to the plaintiff’s safety.
Domestic violence protective orders are to be utilized when a victim has shown
a need for protection from an ongoing, credible threat to his or her physical
safety. Knight v. Maher, 161 N.H. 742, 745-46 (2011). The nature and extent
of the defendant’s misconduct are important considerations. Achille, 167 N.H.
at 718. In this case, the defendant sexually assaulted the plaintiff. The
plaintiff testified that, the day after the assault, she blocked his telephone
number so she would not receive messages from him. However, the defendant
sent her a Facebook message in which he apologized for his behavior the
previous night. In her response, the plaintiff told him, “I need you to leave me
alone.” Despite this response, the defendant continued to send the plaintiff
Facebook messages, telling her in one message, “you know you led me on.”
The plaintiff again asked the defendant to “please just stop” and to “leave [her]
alone,” telling him “you[’re] giving me a panic attack.” Even after this request,
the defendant sent the plaintiff another Facebook message, informing her that
he was suspended from his employment because of her, and that she had
“taken money from [his] children.” The plaintiff testified that the last time the
defendant contacted her was “a couple weeks” prior to the April 29, 2016
hearing. The record shows that the sexual assault occurred on April 1, 2016,
and that the plaintiff filed her petition on April 19, 2016.

The plaintiff testified that she filed the petition “[b]ecause the YWCA, the
women’s advocate place, they told me that . . . to show that I was serious about
proceeding forward, that it would be best that I got a restraining order.” She
also testified that her best friend worked with the defendant at the same
employer, and that she “just [does not] ever want to see him or be anywhere
where he is.”

Thus, the record shows that, in the days and weeks immediately
following the defendant’s sexual assault of the plaintiff, he: (1) contacted her
multiple times despite her efforts to block his phone and requests that he leave
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her alone; (2) caused her to have a “panic attack”; (3) accused her of causing
him to lose his job and taking money from his children; and (4) stopped
contacting her only “a couple weeks” before the April 29 hearing, which was
around the time she filed her petition. The plaintiff sought assistance from a
woman’s advocacy service shortly after the assault, and based upon the
information she provided, was advised to seek a restraining order. The plaintiff
filed her petition less than three weeks after the assault. Based upon this
record, we find the evidence sufficient to show the defendant represented an
ongoing, credible threat to the plaintiff’s safety. See Achille, 167 N.H. at 718.

Affirmed.

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

Eileen Fox,
Clerk

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