N.E. v. J.Y.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0702, N.E. v. J.Y., the court on September
10, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiff, N.E., appeals a decision from the Circuit Court (Carroll, R., approved
by Guptill, J.) dismissing his stalking petition against the defendant, J.Y. The
plaintiff argues that the court erred in concluding there was insufficient
evidence of a “course of conduct” under RSA 633:3-a, II(a) (2016) based upon
the court’s erroneous interpretation of RSA 633:3-a, II(a) and prior caselaw.
We conclude that the court did not err in determining that the plaintiff failed to
prove a “course of conduct” as defined in RSA 633:3-a, II(a). Accordingly, we
affirm.

I. Facts

The following facts are supported by the record or are otherwise
undisputed by the parties. The plaintiff is married to the former wife of the
defendant. The defendant and his former wife have eight-year-old twins. On
the morning of September 20, 2023, the plaintiff was responsible for driving
the twins to school. That morning, according to the plaintiff, the twins “weren’t
being very cooperative,” and they were running late. At one point, the plaintiff
lifted one of the twins under the arms and, using several expletives, yelled at
the child to hurry up. Later that day, the defendant picked up the twins from
school, and the defendant learned about what happened that morning.

That evening, over the course of thirteen minutes, between 5:59 p.m. and
6:12 p.m., the defendant and the plaintiff exchanged a series of ten text
messages. Their conversation went as follows:

Defendant (5:59 p.m.): “If you ever put your hands on MY daughter
again I will break your arms off!!!”

Defendant (6:01 p.m.): “That’s not a threat it’s a promise!!”

Plaintiff (6:02 p.m.): “I lifted her up. I didn’t hit her.”

Defendant (6:02 p.m.): “If you f***ing touch her again, I’m gonna
f***ing pound you”
 Plaintiff (6:04 p.m.): “Call Dcyf if you have a problem.. I’ll wait.”

Defendant (6:04 p.m.): “There’s no do you need for DC why F I’m
telling you if you f***ing touch her again, I’m gonna break your
face”

Plaintiff (6:05 p.m.): “So I didn’t do anything wrong enough to call
the authorities, but you are threatening to assault me?”

Defendant (6:06 p.m.): “Yes, I’m promising you if you put my [sic]
hands on my daughter again, I’m going to f***ing break your face”

Plaintiff (6:11 p.m.): “First I lifted her up because she wouldn’t stop
what she was doing. Then I yelled at her to move her ass. There,
you have my full confession. I didn’t lift her up any harder than I
did to help her into the hay wagon.”

Defendant (6:12 p.m.): “Great!”

On September 22, two days after the parties exchanged these text
messages, the plaintiff filed a stalking petition in circuit court and was granted
a temporary order of protection. A final hearing on the petition took place on
October 16, and the court denied the petition the following day, explaining that
it did “not find evidence of a course of conduct.” The plaintiff filed a motion for
reconsideration. In its order denying the plaintiff’s motion, the court explained
that it “continues to find that this is a text ‘thread,’ a singular event and not a
course of conduct.” This appeal followed.

II. Analysis

RSA 633:3-a (Supp. 2023) creates a civil cause of action for victims of the
offense of stalking. See RSA 633:3-a, III-a (2016). As relevant to this appeal,
stalking occurs when a person:

(a) Purposely, 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 or the
safety of a member of that person’s immediate family, and the
person is actually placed in such fear;
(b) Purposely or knowingly engages in a course of conduct targeted
at a specific individual, which the actor knows will place that
individual in fear for his or her personal safety or the safety of a
member of that individual’s immediate family; . . . .

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RSA 633:3-a, I(a), (b) (2016) (emphases added). Whether the defendant
engaged in a course of conduct is a question of fact. See State v. Gubitosi, 152
N.H. 673, 681 (2005).

The statute defines “‘[c]ourse of conduct’” to mean “2 or more acts over a
period of time, however short, which evidences a continuity of purpose.” RSA
633:3-a, II(a). As relevant to the current appeal, “a course of conduct may
include, but not be limited to . . . [a]ny act of communication, as defined in
RSA 644:4, II.” Id. In turn, RSA 644:4, II (2016) provides that:

“[C]ommunicates” means to impart 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, including electronic transmissions generated or
communicated via a computer.

(Emphases added.)

On appeal, the plaintiff argues that the trial court erred in denying his
petition because the “five distinctly worded and separately sent threatening text
messages are sufficient evidence of a ‘course of conduct’ under RSA 633:3-a,
II(a).” The plaintiff maintains that the trial court’s finding that the defendant
did not engage in a “course of conduct” “conflicts with the plain and ordinary
meaning of the words used to define ‘course of conduct’ under the Stalking
statute” and is inconsistent with New Hampshire caselaw. We disagree.

“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
evidentia[ry] support or tainted by error of law.” Comer v. Tracey, 156 N.H.
241, 246 (2007). Resolution of this case requires that we consider the meaning
of “course of conduct” under RSA 633:3-a, II(a). This is a question of statutory
interpretation, which we review de novo. In re D.J., 176 N.H. 78, 81 (2023).
We interpret the statute as written and will not consider what the legislature
might have said or add language that the legislature did not see fit to include.
Id. at 81-82.

RSA 633:3-a, II(a) defines a “‘[c]ourse of conduct’” to mean “2 or more acts
over a period of time, however short, which evidences a continuity of purpose.”
A course of conduct may include “[a]ny act of communication, as defined in
RSA 644:4, II.” RSA 633:3-a, II(a)(7). As relevant to this appeal, a
“communication” for purposes of RSA 633:3-a, II(a)(7) means “to impart a

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message by . . . sending . . . any information or material by . . . electronic
transmission.” RSA 644:4, II. The Oxford English Dictionary defines “impart”
as “[t]o communicate as knowledge or information; to make known, tell, relate.”
Oxford English Dictionary,
https://www.oed.com/dictionary/impart_v?tab=meaning_and_use#829566
(last visited Aug. 14, 2024). It defines the word “message” as, inter alia, “an
oral, written, recorded, or electronic communication sent from one person,
group, etc., to another” or “an expressed or implied central theme or significant
point.” Id. at
https://www.oed.com/dictionary/message_n?tab=meaning_and_use#3739781
5 (last visited Aug. 14, 2024). Thus, “to impart a message” refers to the act of
communicating or relating knowledge or information from one person or group
to another, by way of an oral, written, recorded, or electronic communication,
which may include a central theme or significant point.

We disagree with the plaintiff that each individual text message
necessarily constitutes an “act of communication.” RSA 633:3-a, II(a)(7).
Although a single text message may, in and of itself, “impart a message” and
therefore constitute an “act of communication,” a series of text messages may
also, depending upon the circumstances, “impart a message” and therefore
constitute a single “act of communication” as well. RSA 633:3-a, II(a)(7); RSA
644:4, II. To conclude that sending an individual text message necessarily
“impart[s] a message” separate and distinct enough to render each individual
text message a single “act of communication” would ignore or overly simplify
the reality of text conversations.

Applying this definition to the facts of the case, we conclude that there is
sufficient evidence to support the trial court’s finding that the conversation
between the defendant and the plaintiff constituted “a singular event and not a
course of conduct.” See RSA 633:3-a, II(a). Here, the defendant sent six text
messages to the plaintiff, four of which stated that the defendant would injure
the plaintiff if the plaintiff touched the defendant’s child again. Although all six
of the defendant’s messages were sent over a period of thirteen minutes, the
four messages in which the defendant threatened the plaintiff were sent over a
period of seven minutes. The fact that the conversation took place over a short
period of time does not necessarily mean that only one act of communication
occurred, see In re D.J., 176 N.H. at 82 (explaining that in In re Alex C., 161
N.H. 231 (2010), we rejected the notion that “a single conversation cannot
contain repeated communications,” and concluding that an eight-minute
interaction involved more than one communication), but it nevertheless
suggests that the four threatening text messages, taken together, constitute
only one act of communication. Additionally, the conversation took place
entirely by text messages, involved a rapid back-and-forth exchange between

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the parties and involved the defendant expressing the same threat: that he
would injure the plaintiff if the plaintiff touched the defendant’s daughter
again.

The plaintiff argues that such an outcome is at odds with our caselaw,
particularly In re Alex C. and In re D.J. We disagree. In both cases, we
considered whether a juvenile engaged in “repeated communications” pursuant
to the definition of “communicates” set forth in RSA 644:4, II such that the
juvenile committed harassment under RSA 644:4, I(b) (2016). In re Alex C.,
161 N.H. at 234-38; In re D.J., 176 N.H. at 81-83. In Alex C., we concluded
that the juvenile made “repeated communications,” RSA 644:4, I(b), when he
sent twenty separate instant messages over the course of fifty-six minutes to
his friend’s mother, during which the friend’s mother sent only one message,
and the conversation was interrupted by a forty-six minute break. In re Alex
C., 161 N.H. at 233-34, 237. We explained that a conversation does not
“necessarily equate[] to a single communication” and considered the process of
instant messaging not necessarily as “a single conversation, but as a series of
discrete electronic messages between two or more individuals.” Id. at 238.

Alex C. does not, however, foreclose a finding that a single conversation
may also constitute a single communication. First, in large part our
conclusion in Alex C. relied upon the fact that there was a forty-six minute
break when the juvenile did not send any messages. See id. at 234, 238
(“While a fifty-six minute telephone call between two people might not be
uncommon, we think that a forty-six minute break during that call strains the
meaning of ‘conversation.’”). In contrast, here there was no substantial break
in time and the conversation constituted a consistent, continuous back-and-
forth exchange between the parties. Second, to the extent that Alex C.
suggests that sending a single text message necessarily constitutes an “act of
communication,” we take this opportunity to clarify that a single text message
may, but does not necessarily, constitute an “act of communication.” RSA
633:3-a, II(a)(7); see In re Alex C., 161 N.H. at 237-38; RSA 644:4, II. In Alex
C., we analogized sending an instant message to sending an email or leaving a
voicemail. In re Alex C., 161 N.H. at 238. Although this analogy may hold true
regarding text messages in certain circumstances, for example when a sender
sends one or more text messages without receiving a response, it is not
indicative of all text conversations. In many instances, such as the case at
hand, a text message conversation in which parties exchange a series of text
messages in quick succession and discuss one common subject is more
analogous to a telephone or in-person conversation. Thus, whether more than
one text message constitutes multiple acts of or a single act of communication
depends upon the circumstances of the case, and is a question of fact best left
to the fact finder. See Gubitosi, 152 N.H. at 681.

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 We are similarly unpersuaded that our conclusion is inconsistent with
D.J. In D.J., we concluded that a juvenile committed harassment under RSA
644:4, I(b) when he engaged in an eight-minute verbal altercation with the
victim. In re D.J., 176 N.H. at 80-83. While on his bicycle, the juvenile yelled
a string of expletives at the victim after the victim informed the juvenile and his
friends that they were not supposed to ride their bicycles on the sidewalk. Id.
at 80. It was only after the victim responded to the juvenile’s initial remarks
that the juvenile then got off his bicycle, provoked the victim to fight, and took
off his shirt. Id. We concluded that this series of verbal and non-verbal
messages constituted “repeated communications” pursuant to RSA 644:4, I(b).
Id. at 82-83. We explained that “if messages exchanged in a verbal
conversation are sufficiently discrete, they, too, may be ‘repeated
communications,’” and thus “when an individual makes a verbal remark,
rejects an opportunity to stop communicating with the recipient, and imparts
another message, a break has occurred sufficient to make the communications
‘repeated.’” Id. at 83. In contrast, here there was no shift in the timing or
rhythm of the text conversation between the parties that suggests that one
communication ended and a second one started.

For the foregoing reasons, we conclude that the trial court did not err in
finding that the defendant did not engage in a “course of conduct” as defined
by RSA 633:3-a, II(a). Here, the text conversation occurred over a very short
period of time, the conversation involved a consistent back-and-forth exchange
between the parties, each of the four threatening text messages sent by the
defendant conveyed the same message, and there was no significant break in
the conversation.

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred; HANTZ MARCONI, J., sat for oral argument but did not participate
in the final vote.

Timothy A. Gudas,
Clerk

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