H.F. v. M.Z.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0527, H.F. v. M.Z., the court on March 15,
2022, issued the following order:

The defendant’s motions requesting that we “revoke” the stalking final
order of protection, and that we grant him leave to file a response to the
plaintiff’s objection, are 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). The defendant, M.Z., appeals a civil stalking final
order of protection, see RSA 633:3-a (Supp. 2021), entered against him by the
circuit court for the protection of the plaintiff, H.F. We construe the
defendant’s brief to argue: (1) that the evidence was insufficient to support a
finding that he stalked the plaintiff, and (2) that the trial court’s decision
should be overturned because the plaintiff’s attorney had a conflict of interest.
We affirm.

We first consider whether the evidence was sufficient to support the trial
court’s order. 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
evidentiary support or erroneous as a matter of law. Fisher v. Minichiello, 155
N.H. 188, 190 (2007). “We accord considerable weight to the trial court’s
judgments on the credibility of witnesses and the weight to be given testimony.”
Id. We view the evidence in the light most favorable to the prevailing party, in
this case, the plaintiff. Id.

A person commits the offense of stalking if that person “[p]urposely,
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 . . . and the person is actually placed in such fear.” RSA 633:3-a, I(a).
“Course of conduct” is defined as two or more acts over a period of time,
however short, which evidences a continuity of purpose. RSA 633:3-a, II(a). A
course of conduct may include, among other things, “[t]hreatening the safety of
the targeted person,” “[f]ollowing, approaching, or confronting that person,”
“[a]ppearing in close proximity to, or entering the person’s residence, place of
employment, school, or other place where the person can be found,” or
“[p]lacing an object on the person’s property, either directly or through a third
person.” RSA 633:3-a, II(a)(1)–(3), (5). However, a course of conduct does not
include constitutionally protected activity, nor conduct that was necessary to
accomplish a legitimate purpose independent of making contact with the
targeted person. RSA 633:3-a, II(a). The plaintiff bears the burden to prove
“stalking” by a preponderance of the evidence. RSA 633:3-a, III-a; Fisher, 155
N.H. at 190.

In this case, the record demonstrates that, over the course of a few days,
the defendant visited the plaintiff’s workplace twice for legitimate purposes. A
few days later, the defendant visited the plaintiff’s workplace again, showed her
a bottle of water, stated “things aren’t always what they appear to be,” and
shook the bottle — which began to fizz. The defendant explained that the
liquid was merely seltzer, and then told the plaintiff about a young woman
whom he watches from his home as she enters a nearby employer, explaining
that he has given her gifts.1 The plaintiff became concerned by the defendant’s
unusual behavior, as it appeared that his presence in the office was unrelated
to his prior legitimate purposes.

The following day, the defendant sent an unsolicited email to the plaintiff
thanking her for her assistance, and referencing the seltzer bottle
demonstration and his statement that things aren’t always what they appear to
be. He stated that, although it “may seem like an ‘empty promise’ kind of
statement,” he “clearly see[s] the integrity and truth” in the plaintiff. The
defendant then requested a date with the plaintiff, asking if the plaintiff would
take Friday off from work to accompany him to an antique show and flea
market.

The next day, the defendant forwarded his email to the plaintiff’s
supervisor, copying the plaintiff, stating that “I think everybody assumes
‘romance’ in EMails like these but I’m thinking that [the plaintiff] was very
professional & trustworthy,” and comparing the plaintiff to his mother. The
defendant renewed his invitation to the plaintiff to accompany him to an
antique show and flea market, noting that the trip would include dinner, and
providing instructions about what to wear and bring.

The following day, the defendant arrived uninvited at the plaintiff’s home.
He approached the front and back of the home, and walked about the property
taking photographs. The plaintiff was home at the time, and she contacted her
husband, her employer, and the police. In her petition, she stated that she
was “hysterical,” and that the police dispatcher “had to keep trying to calm me
down so he could get [the] information.”2 Her husband arrived home and
confronted the defendant, and, thereafter, the police arrived and interviewed
the parties. The defendant explained that he was at the home in order to drop

1 During his testimony, the defendant described the young woman’s daily routine and personal

details about her, and stated that he knew where she lives and had been to her home.

2 At the hearing, the defendant acknowledged that he had observed the plaintiff’s face to be

red, and that she had apparently been crying during the incident.

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off a note and a small pumpkin as a gift for the plaintiff. He acknowledged that
he had not been invited there, and that he, or his friend, had obtained the
plaintiff’s address on the internet. The officer issued a criminal trespass notice
to the defendant, and repeatedly requested that the defendant leave the
property before he complied.

Thereafter, the plaintiff filed a stalking petition in the circuit court.
Following a hearing, the trial court issued a final order of protection,
concluding that, under RSA 633:3-a, I(a), the defendant had stalked the
plaintiff. Among other things, the court found that the defendant “sent an
unsolicited e-mail to [the plaintiff] and then arrived unannounced and
uninvited at her residence clearly having obtained her home address himself or
with the assistance of someone else.”

Although the defendant contends that his intentions were “above board,
honorable and kindly,” the trial court reasonably could have found, based upon
the evidence, that the defendant’s actions caused the plaintiff to reasonably
fear for her personal safety. See Fisher, 155 N.H. at 190 (observing that we
must view the evidence in the light most favorable to the prevailing party, and
that we give deference to the trial court’s judgments on the credibility of
witnesses and the weight to be given testimony). Based upon our review of the
record, we conclude that the evidence is sufficient to support the trial court’s
finding, by a preponderance of the evidence, that the defendant stalked the
plaintiff. See RSA 633:3-a, III-a; Fisher, 155 N.H. at 190.

Next, the defendant argues that the trial court’s order should be
overturned because the plaintiff’s attorney had a conflict of interest — namely,
that the attorney represented the defendant in connection with the preparation
of his will and other estate planning documents several months before the
incidents giving rise to the stalking petition.

However, because the defendant never raised this issue below, and
neither objected nor moved to disqualify the attorney from representing the
plaintiff, this issue is not preserved for appellate review. “The general rule in
this jurisdiction is that a contemporaneous and specific objection is required to
preserve an issue for appellate review.” State v. Blackmer, 149 N.H. 47, 48
(2003) (quotation omitted). “This rule, which is based on common sense and
judicial economy, recognizes that trial forums should have an opportunity to
rule on issues and to correct errors before they are presented to the appellate
court.” Id. (quotation omitted); see also Fox v. Town of Greenland, 151 N.H.
600, 604 (2004) (observing that “[w]e require disqualification issues to be
raised at the earliest possible time because trial forums should have a full
opportunity to come to sound conclusions and to correct errors in the first
instance” (quotation omitted)). Indeed, we note that, on appeal, the defendant
has still not moved to disqualify the attorney from representing the plaintiff.
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 The defendant’s remaining arguments do not warrant further discussion.
See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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