Karen Hinse v. Ryan Dunn

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2017-0043, Karen Hinse v. Ryan Dunn, the
court on August 1, 2017, issued the following order:

The plaintiff’s motion to strike the defendant’s brief and dismiss the
appeal is denied. Having considered the briefs 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, Ryan Dunn, appeals an order of the Circuit Court
(Tenney, J.) granting a domestic violence final order of protection to the
plaintiff, Karen Hinse. See RSA 173-B:5 (Supp. 2016). The defendant argues
that: (1) the evidence was insufficient to show a credible present threat to the
plaintiff’s safety; (2) the plaintiff’s testimony lacked credibility; (3) evidence of
domestic violence in 2006 was too remote in time and too non-specific to
support a domestic violence protective order; and (4) the trial court made no
specific findings to support its general finding of sexual assault.

The defendant first argues that the evidence was insufficient to show that
his conduct constituted a credible present threat to the plaintiff’s safety. 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. 2016); Achille, 167 N.H. at 716.

The plaintiff testified that whenever the defendant came to her house to
pick up their children for parenting time:

he would ask me several times if I want to have sex with him and I
would say no, over and over again. And he’d keep asking. He’d
raise his voice and I would get scared because of the past domestic
 violence of him abusing me physically. And I was also afraid that
he might hurt me or my kids if I didn’t. He also carries a
concealed weapon inside of his pants. And so he goes in the room
and I just lay there and I look away.

At the December 9, 2016 final hearing, the plaintiff testified that this conduct
occurred most recently “the Thursday before Thanksgiving.” The trial court
found that the defendant committed the criminal act of sexual assault, as
defined in RSA 632-A:2 through RSA 632-A:5, see RSA 173-B:1, I(c), and that
his conduct constituted a credible present threat to the plaintiff’s safety. The
record supports the court’s findings. See Achille, 167 N.H. at 715.

The defendant argues that the plaintiff’s testimony lacked credibility
because she did not file her domestic violence petition until years after the
alleged conduct began. He contends that the plaintiff filed her petition in
retaliation for his intention to seek additional parenting time, and that she
sought to avoid the loss of child support that would result from modified
parenting time. Conflicts in testimony, questions about the credibility of
witnesses, and the weight to be given to testimony are matters for the trial
court to resolve. In the Matter of Aube & Aube, 158 N.H. 459, 465 (2009). We
will uphold the trial court’s credibility determinations unless no rational trier of
fact could have reached the same conclusion. State v. Carr, 167 N.H. 264, 275
(2015). Based upon this record, we cannot conclude that the court erred in its
credibility determinations. See id.

The defendant asserts that the plaintiff’s testimony regarding an incident
of domestic violence in 2006 was too remote in time and too non-specific to
support a finding that he presents an ongoing threat to her safety. Although
incidents that are “too distant in time and non-specific” cannot support a
finding of abuse, see Walker v. Walker, 158 N.H. 602, 608 (2009) (quotation
omitted), the court’s finding of abuse was based upon the sexual assaults, the
latest of which occurred as recently as two weeks before the hearing, not the
earlier domestic violence incident.

Finally, the defendant argues that the trial court made no specific
findings to support its general finding of sexual assault. However, the court
credited the plaintiff’s testimony that she and the defendant engaged in sexual
contact without her consent. This was sufficient to support its 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) (2016) (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). Although the defendant argues that there was no

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corroborating evidence of sexual assault, the plaintiff was not required to
provide corroborating evidence. See RSA 632-A:6, I (2016).

Affirmed.

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

Eileen Fox,
Clerk

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