K.H. v. D.P.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0345, K.H. v. D.P., the court on November
16, 2022, issued the following order:

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, D.P., appeals a decision of the Circuit Court (Pendleton, J.)
granting a domestic violence final order of protection in favor of the plaintiff,
K.H. See RSA 173-B:5 (2022). The defendant challenges the sufficiency of the
evidence to support the trial court’s decision. We affirm.

To be granted 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 by a family or household
member or a current or former sexual or intimate partner when such conduct
“constitute[s] a credible present threat” to the plaintiff’s safety. RSA 173-B:1, I
(2022); see S.C. v. G.C., 175 N.H. 158, 163 (2022). 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. Upon proof of abuse,
the trial court must “grant such relief as is necessary to bring about a
cessation of abuse.” RSA 173-B:5, I.

The trial court’s “findings of facts shall be final, but questions of law may
be transferred from the circuit court to the supreme court.” RSA 173-B:3, VI
(2022). 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. S.C., 175 N.H. at 162. We defer to the
trial court’s judgments as to the credibility of the witnesses and the weight of
their testimony. Id. at 162-63. The trial court is free to accept or reject, in
whole or in part, the testimony of any witness, and is not required to believe
even uncontested testimony. In the Matter of Geraghty & Geraghty, 169 N.H.
404, 416 (2016). We view the evidence in the light most favorable to the
prevailing party, here, the plaintiff. S.C., 175 N.H. at 163.

It is the defendant’s burden, as the appealing party, to provide so much
of the record as is necessary to decide the issues raised on appeal. Bean v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). We assume that relevant portions
of the record not provided on appeal support the trial court’s decision. See id.
We note that in this case, the defendant takes issue with several factual
representations of the plaintiff in her petition, but has not provided the petition
as part of the record on appeal. We likewise assume that the trial court made
all findings necessary to support its decision. See Nordic Inn Condo. Owners’
Assoc. v. Ventullo, 151 N.H. 571, 586 (2004).

In this case, the trial court found that the defendant engaged in “abuse”
of the plaintiff for purposes of RSA 173-B:1, I, by stalking her. Stalking a
plaintiff in violation of RSA 633:3-a (Supp. 2021) is one of the enumerated
crimes that may constitute “abuse” for purposes of RSA 173-B:5, I. See RSA
173-B:1, I(d) (defining “abuse” to include the commission or attempted
commission of “[i]nterference with freedom as defined in RSA 633:1 through
RSA 633:3-a”). The crime of stalking includes “[p]urposely, knowingly, or
recklessly engag[ing] 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). A “course of
conduct” “means 2 or more acts over a period of time, however short, which
evidences a continuity of purpose.” RSA 633:3-a, II(a). Acts that may
constitute a “course of conduct” include, but are not limited to, “[f]ollowing,
approaching, or confronting that person,” “[a]ppearing in close proximity to, or
entering the person’s . . . place of employment . . . or other place where the
person can be found,” and “[a]ny act of communication, as defined in RSA
644:4, II.” RSA 633:3-a, II(a)(2), (3), (7). RSA 644:4, II (Supp. 2021) defines
“communicates” for purposes of the crime of harassment to mean “impart[ing]
a message by any method of transmission, including but not limited to
telephoning or personally delivering or sending or having delivered any
information or material by written or printed note or letter, package, mail,
courier service or electronic transmission.”

The trial court found that the plaintiff terminated the parties’
relationship following their second date, which had ended in an “eruptive”
argument. The plaintiff described the defendant’s temper, within the context of
the argument, as “explosive.” Following this incident, the defendant sent the
plaintiff numerous text messages and voicemails.

Shortly after the parties’ second date, while the plaintiff was on a date at
a restaurant with another man, the defendant, who was present at the
restaurant’s bar, paid for the dinners of both the plaintiff and her date in order
to embarrass or make the plaintiff’s date jealous. After the defendant had left
the restaurant, another bar patron revealed to the plaintiff that the defendant
had been talking about her the entire time that the defendant was there, that
the defendant knew “everything about [the plaintiff’s] life,” and that the
conversation had caused the patron to be nervous for the plaintiff. The
defendant additionally sent the plaintiff’s date a lengthy message through a
social media account about the plaintiff.

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 Following the incident at the restaurant, the defendant continued to send
the plaintiff text messages, begged her forgiveness, requested that she
accompany him on another date and on a trip to Cancun, and twice sent her
flowers. After the plaintiff told the defendant to stop contacting her and
threatened to seek a restraining order if he continued to contact her, the
defendant left lengthy voicemails for the plaintiff, which the trial court
characterized as “including angry messages [in which] the Defendant called the
Plaintiff different names and degraded her” and “exhibited significant anger.”
He also appeared at a gym, which was not in the area where the defendant
both lives and works, at a time when he was aware the plaintiff would be
present, approached the plaintiff, stood and “hovered” directly over her while
she was exercising in a seated position, and attempted to communicate with
her. This incident led to the plaintiff jumping up and yelling, gym personnel
intervening, and the plaintiff reporting the matter to the police. That same day,
the defendant had sent the plaintiff a voicemail asking her out, and after the
incident, he sent an additional voicemail telling her that she was “ridiculous for
yelling at him and involving others.”

Approximately a week after the incident at the gym, the defendant went
to another gym where the plaintiff, who is a personal trainer, trains clients,
took photographs of himself exercising there, and posted the photographs to
social media. Although the plaintiff was not present when this latter incident
occurred, it apparently led to the defendant’s arrest. The plaintiff testified that,
as a result of the defendant’s conduct, she is “scared for [her] life,” she is
“scared for [her] children’s li[ves],” she is “scared to show up to work,” she is
“always looking over [her] shoulders,” and she has “PTSD from this.”

Viewing the evidence in the light most favorable to the plaintiff, S.C., 175
N.H. at 163, we conclude that the trial court reasonably found that the
defendant engaged in stalking of the plaintiff within the meaning of RSA 633:3-
a, and that his conduct presents a credible present threat to the plaintiff’s
safety. To the extent the defendant is raising additional arguments in his brief,
the arguments are not sufficiently developed to warrant judicial review. See
State v. Blackmer, 149 N.H. 47, 49 (2003).

Affirmed.

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

Timothy A. Gudas,
Clerk

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