2006-684, JENNIFER COMER V. PATRICK SEAN TRACEY

The respondent, Patrick Sean Tracey, appeals a final

on the brief and orally), for the State, as amicus curiae. Kelly A. Ayotte, attorney general (Ann M. Rice, associate attorney general,

orally), for the respondent. Bernstein Shur, of Manchester (Dawnangela Minton on the brief and

to press. Errors may be reported by E-mail at the following address: Jennifer Comer, pro se, filed no brief.

editorial errors in order that corrections may be made before the opinion goes No. 2006-684 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Nashua District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as those answers. p. 2 car using the address of her residence, the registry of motor vehicles on June 5 and learned that he had registered the 2 Because she believed Tracey was still living in Massachusetts, she contacted

I used was that I was looking for some compassion as to getting

driving a new car, and that the car had New Hampshire license plates.

Tracey had no further contact with Comer. entirety: turn was telling him that she wished to have no further contact with him. stalker and Tracey testified as follows: which was served on June 9. The narrative portion of the petition stated, in its Tracey was attempting to elicit a satisfactory explanation from Comer, she in Tracey smoked. Also on June 5, Comer filed a stalking petition against Tracey, had never adequately explained her reasons for breaking up with him. While under the seat of her car. The cigarettes she found were the same brand until the break-up. On that same day, she discovered a pile of cigarette butts

for some answers as to why things ended the way they did and why something to that effect. And I believe I said – I was just looking During the parking-lot encounter on June 3, Comer saw that Tracey was

findings concerning the content of the June 3 telephone calls. After June 3, content of those messages, Comer testified that Tracey told her he was not a Notwithstanding that evidence in the record, the trial court made no factual not to have been part of the record before the trial court. Regarding the disposition of the engagement ring. In addition, Tracey believed that Comer

probably didn’t articulate things very well when I went up there, The context of both voicemails were basically Jennifer, I

police officer but which are not part of the record before us, and which appear money each believed he or she was owed by the other, and concerning the that day, Tracey left Comer two telephone messages, which Comer played for a up, Comer and Tracey had various unresolved financial issues concerning him she was not comfortable talking with him, and then drove away. Later removed the last of his belongings from Comer’s residence. After they broke the hair salon, she found Tracey waiting for her in the parking lot. She told telling him she had to go to a hair appointment. When Comer was finished at said she did not want to see him or talk to him and ended the conversation by On June 3, Tracey telephoned Comer and asked to meet with her. She

Comer delivered clothing and other belongings to Tracey. On April 15, Tracey week or so, Comer broke off the engagement. For several weeks after that, goes from friendly to angry very quickly.

ignored all of my requests to not contact me and his demeanor residence without her permission. removing his personal items from the residence, entered her

fear. hearing, further finds that the plaintiff was actually placed in such safety and, having observed the plaintiff during the course of the plaintiff which would cause a reasonable person to fear for her

residence. While the trial court noted that “[t]he defendant continued to multiple occasions. cigarette butts in the petitioner’s automobile; and (4) entering the petitioner’s contact. The defendant continued to telephone and e-mail her on parking-lot encounter; (2) the two subsequent telephone calls; ( p. 3 3) placing made it clear to the defendant that she wished to terminate all respondent engaged in a course of conduct consisting of: (1) the June 3 exhibited violent behavior in the past and I am afraid. He has April 15, 2006. After he removed his possessions the plaintiff Based upon the foregoing, the trial court appears to have found that the he has entered my house while I was not at home. He has removed his possessions from the Hollis residence on or about cigarette butts in her car on June 3rd and, subsequent to his my address which he has not lived at since 3/12/06. I believe that broke off the engagement in March of 2006 and the defendant The court further finds, more probably than not, that he placed her. He made further contact with her by telephone later that day. stylist, knowing she had an appointment, and made contact with

that the defendant engaged in a course of conduct targeted at the Considering the totality of the circumstances, the court finds

week of May p. 3 31, Patrick Tracey registered his new car in Hollis at together at the plaintiff’s residence in Hollis, NH. The plaintiff

defendant appeared in the parking lot outside of the plaintiff’s hair On June p. 3 3, 2006, contrary to her expressed wishes, the

salon [and] waited for me. He then called me 2 more times. The The parties were engaged to be married and had been residing not want to see him or talk to him. He then showed up at my hair stalking final order, based upon the following findings and rulings: unknown number to me [and] I answered. I again told him I did The trial court issued a stalking temporary order and, after a hearing, issued a

manner [and] he has not. On June p. 3 3, 2006, he called from an I have repeatedly asked Mr. Tracey to stop contacting me in any preceding the parking-lot encounter or the telephone calls that followed it.

activity. Regarding the cigarette butts, the trial court explained: of proof. further finding is unnecessary for the plaintiff to meet her burden constitutes a third act. Since the statute requires two (2) acts this reconsider, the trial court did not mention any telephone calls or e-mails conduct for purposes of RSA 633:3-a, I(a). In its order denying the motion to protected activities, the trial court erred in including them in a course of parking-lot encounter and his subsequent telephone calls were constitutionally

. . . on multiple occasions,” and the two June 3 telephone calls in the findings Thus, notwithstanding the trial court’s mention of “telephone [calls] and e-mail

argument that those telephone calls were also constitutionally protected the petitioner after the parking-lot encounter nor addressed the respondent’s protected, it neither mentioned the two telephone calls the respondent made to lot incident that was alleged. Second, if this is a separate event it the respondent’s argument that the parking-lot encounter was constitutionally First, while it was not specifically pled it is related to the parking irrelevant and cannot be used in determining a course of conduct. petition and therefore this event, as found by the court, is because it was not mentioned in Comer’s petition; and (3) because the June 3 argues that the plaintiff failed to plead this allegation in her belongings; (2) the trial court erred by considering the cigarette-butt deposit in the plaintiff’s car while she was in the hair salon. The defendant a finding that he had ever entered the residence after he removed the last of his The court also found that the defendant left cigarette butts permission to enter her residence, and the evidence was insufficient to support

constitutionally protected activity. However, while the trial court did address reject the respondent’s argument that the parking-lot encounter was a and had no legitimate reason to be there.” The trial court then went on to appeared in the parking lot of her hair stylist knowing she had an appointment defendant entered the plaintiff’s residence without her permission and that he stalking final] order the court determined, more probably than not, the the trial court’s finding, Comer’s petition never alleged that he lacked The trial court did say that “in the [findings and rulings supporting the

the statutory pleading standard, allegations concerning any such activities in the stalking petition fall short of

The respondent moved for reconsideration, arguing that: (1) contrary to

case. and, as a result, that conduct was never properly a part of the petition or this

construed as referring to contact between April 1 p. 5 5 and June 3, the factual telephone and e-mail [the petitioner] on multiple occasions,” which could be supplemental or amended petition,”

the defendant is provided an opportunity prior to the hearing to respond to the “[t]he plaintiff shall be permitted to supplement or amend the petition only if against the defendant shall be given to the defendant,” RSA 173-B:3, and that things, RSA chapter 173-B provides that “[n]otice . . . of the facts alleged

court erred as a matter of law by considering the cigarette-butt deposit.

evidential support or tainted by error of law. Fisher v. Minichiello, 1 p. 5 55 N.H. uphold the findings and rulings of the trial court unless they are lacking in evidence. We review sufficiency of the evidence claims as a matter of law and that he had entered the petitioner’s residence was based upon insufficient Next we turn to the respondent’s argument that the trial court’s finding

the same as those set forth in RSA 173-B.” RSA 633:3-a, III-a. Among other the Matter of Aldrich & Gauthier, 1 p. 5 55 N.H. ___, ___ (decided Aug. 22, 2007). and enforcement of such orders, and the penalties for violation thereof shall be See In by filing a civil petition in the district court . . . the methods of notice, service, was not amended prior to the hearing to include any such allegations, the trial provides that when a person who claims to be a stalking victim “seek[s] relief included no allegations concerning the cigarette-butt deposit, and the petition amend the petition to include that factual allegation. Because the petition not mentioned in the stalking petition, and the petitioner did not move to

appeal followed.

stalking petition; order; (2) erroneously relied upon facts and allegations not included in the cigarette-butt deposit. The statute governing the issuance of stalking orders We begin by determining whether the trial court erred by considering the

only the respondent’s constitutional argument. residence, the parking-lot encounter and the cigarette-butt deposit. This The petitioner has filed no brief, and the State, as amicus curiae, addresses conduct that included only the respondent’s entry into the petitioner’s respondent’s conduct would cause a reasonable person to fear for her safety. the stalking final order by specifying that it was based upon a course of respondent entered the petitioner’s residence after April 1 p. 5 5 and that the deposit; and (3) had insufficient evidence to support its findings that the

i.e., the petitioner’s allegations regarding the cigarette-butt

and the subsequent two telephone calls as a basis for issuing its stalking final relied upon constitutionally protected activity; i.e., the parking-lot encounter On appeal, the respondent argues that the trial court: (1) erroneously

respondent’s motion for reconsideration could reasonably be read as clarifying and rulings supporting its stalking final order, the order denying the with – p. 6 of his cigarettes there. And the other thing that after speaking

wondering why it was smelling so bad and there was a whole pile

the house. fact, in town several times, I was concerned that he was going in Bonan saying he’s been in town and finding out that he was, in thinking possibly he’d been coming into the house and after Officer

there. And when I went in the car there was a whole – I kept

up to that, but in fact, you know, after that point, I started not in place the way that they should be and I kind of chalked it things in the house that had been moved and – and certain things chalked up from me being forgetful or something. But there were

vacuum it out and they wash it for you, so it definitely wasn’t that June 3 – whatever that makes that. And they had – they because I had my car serviced by Volvo on the Thursday prior to underneath my seat. And I knew they hadn’t been there before

enter the petitioner’s residence. Moreover, while we defer to the trial court’s court was not sufficient to support a finding that the respondent actually did harbored concerns that he may have done so, the evidence before the trial suspected that the respondent might have entered her residence, or that she been a few things which up until that point and time, I just While the petitioner’s testimony may be sufficient to support a finding that she

was his brand of cigarette butts and there was a whole pile of them I did not lock my car when I was at the hair appointment. But it the car to my [home], I also found a pile of cigarettes in my car and found out that he had – the same day that I found he registered

MS. COMER: Just the cigarette butts. And also, there have

THE COURT: And the ashes as well?

MS. COMER: The butts. Yes.

already? THE COURT: The cigarettes. Had they been smoked

safe. Oh, actually there was, after June 3, on June 5, when I

into the petitioner’s residence consisted of the following:

MS. COMER: I just, you know, I live alone and I want to feel

At the hearing, the evidence concerning the respondent’s alleged entry

view the evidence in the light most favorable to the petitioner. Id. on the credibility of witnesses and the weight to be given testimony. Id. We 188, 190 (2007). We accord considerable weight to the trial court’s judgments must apply, p. 7 his last visit in mid-April. Accordingly, even under the deferential standard we

to support a finding that the respondent entered the petitioner’s residence after

unidentified times over a six-week span – was insufficient, as a matter of law, town and unidentified objects out of place in the petitioner’s residence at before the trial court – second-hand reports of the respondent’s presence in had been invited into the residence or had access to it. In short, the evidence

justified final order. Thus, if the trial court had ruled that the stalking final order was neither of those acts may be used to support the lawfulness of the stalking 7 the petitioner’s residence was not sufficiently supported by the evidence,

that objects could have been moved by people other than the respondent who

butt deposit, and because its finding concerning the respondent’s entry into encounter. Because the trial court could not lawfully consider the cigarette- (2) the respondent’s entry into the petitioner’s residence; and (3) the parking-lot issuance of the stalking final order against him: (1) the cigarette-butt deposit; conduct” as “2 or more acts over a period of time”). final order and dismiss the petition. See RSA 633:3-a, II(a) (defining “course of done – then we would reverse and instruct the trial court to vacate the stalking petitioner’s residence and the parking-lot encounter – which it may in fact have last of his belongings, and no evidence even tending to eliminate the possibility only by the cigarette-butt deposit, the respondent’s entry into the the respondent retained a key to the petitioner’s residence after he removed the in her residence were not in their proper places. There was no evidence that

court specifically identified three acts by the respondent that justified its In its order denying the respondent’s motion for reconsideration, the trial

entered the petitioner’s residence between mid-April and early June. weeks, the respondent was in town or when the petitioner noticed that objects id., we cannot uphold the trial court’s finding that the respondent evidence concerning precisely when, over the course of approximately six locations from which and to which they had been moved. There was no weak. There was no evidence regarding what objects were out of place or the

petitioner’s belief that objects in her residence had been moved – is notably reports of the respondent’s presence in town “several times” and the removed the last of his belongings. The circumstantial evidence – second-hand evidence that the respondent entered the petitioner’s residence after he Here, the record contains no eyewitness accounts or other direct

adopt a particular party’s beliefs or inferences from the factual record. factual matter; we are not obligated to defer to the trial court’s decision to determinations regarding whether or not to credit a witness’s testimony upon a credibility judgments, id., that deference extends only to the trial court’s telephone messages for a police officer who did not testify, and that in one or

633:3-a, I(a). In turn: accept her testimony, which was limited to stating that she played the the most favorable finding the trial court could have made would have been to concerning the content of those calls. From the standpoint of the petitioner, of a stalking order. As we have noted, the trial court made no factual findings

transmission.” transmission, including but not limited to telephoning . . . or electronic her personal safety . . . and the person is actually placed in such fear.” RSA

not be limited to, any of the following acts or combination thereof: as a matter of law, rise to the level of conduct sufficient to support the issuance more acts” under RSA 633:3-a, I(a), the two subsequent telephone calls do not, assume that the parking-lot encounter constituted one of the required “2 or were not sufficient to support the issuance of a stalking order. Even if we Here, the parking-lot encounter and the two subsequent telephone calls

mean, among other things, “to impart a message by any method of at a specific person which would cause a reasonable person to fear for his or RSA 633:3-a, II. RSA 644:4, II (2007), in turns, defines “communicates” to “[p]urposely, knowingly, or recklessly engages in a course of conduct targeted a. The offense of stalking is committed by a person who, among other things, with the targeted person. A course of conduct may include, but 644:4, II.

(7) Any act of communication, as defined in RSA

. . . .

. . . . (2) Following, approaching, or confronting that person

. . . .

has been the victim of stalking as defined in [RSA 633:3-a].” RSA 633:3-a, III- accomplish a legitimate purpose independent of making contact activity, nor shall it include conduct that was necessary to course of conduct shall not include constitutionally protected of time, however short, which evidences a continuity of purpose. A

(a) “Course of conduct” means 2 or more acts over a period

such as that sought by the petitioner in this case is available to “[a] person who would support the issuance of a stalking order against the respondent. Relief two subsequent telephone calls, we must decide whether those three incidents identifying a course of conduct that included the parking-lot encounter and the However, because the stalking final order may reasonably be read as p. 9 9

encounter and the subsequent telephone calls.

would have been placed in fear for his or her personal safety by the parking-lot

final order. Accordingly, we reverse. the evidence before the trial court did not warrant the issuance of a stalking

I(a),

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

not testify that his actions placed her in fear. Based upon the evidence before stalker, nor did she indicate what else the respondent said. In addition she did RSA 644:4, II in RSA 633:3-a, II(a)(7). Rather, we simply hold that in this case, State v. Pierce, 152 N.H. 7 p. 9 90, 793 (2005), has any effect upon the reference to see State v. Brobst, 151 N.H. 420, 425 (2004), and RSA 644:4, I(f), see reject the respondent’s argument that the unconstitutionality of RSA 644:4, We do not doubt the seriousness of the threat posed by stalkers, and we

not testify that the respondent’s message was limited to denying that he was a both of the calls, the respondent told her that he was not a stalker. She did