2005-884, RENEE FISHER v. MADALINE MINICHIELLO

Partridge House Assisted Living in Hampton. stalking petition. The plaintiff, Renee Fisher, is the administrator of The

staff of The Partridge House communicated with her concerning the care her had a power of attorney for healthcare for each of them. Consequently, the When her parents were admitted to The Partridge House, the defendant

residents there for approximately two years.

The following facts were adduced at the district court hearing on the

District Court (Frasier, J.). We affirm. final order, see RSA 633:3-a (Supp. 2006), issued against her by the Hampton DUGGAN, J. The defendant, Madaline Minichiello, appeals a stalking

Patrick M. Carron, of Concord, on the brief and orally, for the defendant

and orally), for the plaintiff to press. Errors may be reported by E-mail at the following address: Forsley & Eggleston, P.A., of Hampton (Lawrence S. Forsley on the brief

editorial errors in order that corrections may be made before the opinion goes No. 2005-884 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hampton District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 p. 2 The court’s written order stated:

defendant from being within “500 feet of [the] plaintiff or any of her property.”

and telling Fisher she would retaliate against her.

2 people accountable for things for years to come . . . .” happened so many years ago that she still holds grudges and she still holds in various phone conversations the defendant “brings up things that have Fisher testified that she nonetheless still fears for her personal safety because defendant’s mother was moved from The Partridge House to another facility. In October 2005, a week before the hearing on the stalking petition, the After the hearing, the district court issued a protective order barring the occasions when the defendant threatened staff, the police were called. investigated these complaints, the defendant accused her of lying. On several She denied, sometimes at length, both ever yelling at or threatening the staff During the hearing on the stalking petition, the defendant also testified.

He sent the defendant a letter telling her she could no longer visit her mother. At some point, a new guardian was appointed for the defendant’s mother. defendant complained to Fisher about the care of her parents. After Fisher protective order. planned to retaliate.” On July 8, Fisher petitioned the district court for a defendant and the victim was her mother. There was “a finding of abuse.” the defendant left Fisher a forty-five minute voice mail message stating “she dining room of The Partridge House.” The alleged perpetrator was the Hampshire Division of Elderly Services “an allegation of physical abuse in the Fisher also testified that sometime in 2005, she reported to the New

the defendant fled. in her mother’s room packing her mother’s clothes. The police were called and with her attorney, his wife and his daughter, at which time she was discovered The defendant, however, returned to The Partridge House on July 10

keep the nurses on the phone for hours and hours at a time.” In addition, the Fisher said the defendant made “threatening phone calls” and that “she would to the staff, . . . and it started to interfere with the caregiving of her mother.” directly in the kitchen staff’s face, and threatening.” In response to the letter, towards the kitchen staff, waving her fists in the air, punching her finger which the defendant “walked into the kitchen and was very loud and abusive accessing The Partridge House. The letter was precipitated by an incident in On July 5, 2005, Fisher sent the defendant a letter prohibiting her from

with [the defendant] for healthcare issues. She started to be very threatening parents were receiving. Fisher testified that it was “difficult to communicate p. 3 3

limited to, any of the following acts or a combination thereof: Course of conduct is defined in RSA 6 p. 3 33:3-a, II(a) to include, but not be defined in RSA 633:3-a, II(a). person. (b) require proof of a “course of conduct targeted at a specific” individual or staff. purposes of this appeal, two variants arguably apply. Both subsections (a) and definition of stalking has three variants. See RSA 633:3-a, I(a), (b), (c). For person must prove “stalking” by a preponderance of the evidence. Id. The relief available under RSA chapter 173-B, including a protective order. The stalking may file a civil petition in either district or superior court seeking the scheme. Under RSA 633:3-a, III-a, a person who has been the victim of We begin our analysis by outlining the pertinent portions of the statutory

the credibility of witnesses and the weight to be given testimony. insufficient evidence that the defendant engaged in a course of conduct as person seeking the stalking petition. The defendant also argues that there was evidential support or tainted by error of law. consider, as evidence of stalking, events or conduct not directly involving the result a pattern of intimidation to plaintiff and her stalked the plaintiff because the text of the statute does not permit the court to defendant contends that there was insufficient evidence that the defendant intertwined with questions of statutory interpretation. For example, the The defendant’s arguments on the sufficiency of the evidence are closely

152 N.H. 67 p. 3 3, 681 (2005). the evidence in the light most favorable to the plaintiff. Cf. State v. Gubitosi,

515 (2001). We accord considerable weight to the trial court’s judgments on

and uphold the findings and rulings of the trial court unless they are lacking in On appeal, we review sufficiency of the evidence claims as a matter of law threatened the well being of the plaintiff and was in its

mother and entered an area of activity which

a matter of law and public policy. We address each issue in turn. defendant well exceeded a concern for the care of her contravenes RSA 6 p. 3 33:3-a and RSA chapter 173-B and therefore is erroneous as sufficiency of the evidence. Second, she argues that the trial court’s decision Here, the defendant raises two issues. First, she challenges the

This appeal followed.

preponderance of the evidence that the conduct of the In a close case the court finds plaintiff proved by a intimidation,” we agree with the defendant that it appears the court considered

p. 4 the district court found that the defendant engaged in a “pattern of

statutes. will lead to reasonable results and effectuate the legislative purpose of the we construe them so that they do not contradict each other, and so that they 4

family.

the conduct at issue to directly involve the targeted person or individual. Since We first consider whether the language of RSA 633:3(a) and (b) requires meaning to the words used.

Id immediate family member..

When interpreting two or more statutes that deal with a similar subject matter, scheme. Soraghan v. Mt. Cranmore Ski Resort II., 152 N.H. 399, 405 (2005). isolation; instead, we attempt to do so in harmony with the overall statutory the legislature did not see fit to include. Id. We do not construe statutes in and will not consider what the legislature might have said or add language that 911 A.2d 1, 5 (2006). We interpret legislative intent from the statute as written belonging to a member of that person’s immediate

When examining the language of the statute, we ascribe the plain and ordinary whole. Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 72 (2005). legislature’s intent as expressed in the words of the statute considered as a directly or through a third person, or that of an In matters of statutory interpretation, we are the final arbiters of the

family. (7) Any act of communication, as defined in RSA 644:4,

(6) Causing injury to that person’s pet, or to a pet

(5) Placing an object on the person’s property, either or a member of that person’s immediate family.

property or that of a member of the person’s immediate (4) Causing damage to the person’s residence or

of that person’s immediate family. residence, place of employment or school of a member other place where the person can be found, or the person’s residence, place of employment, school, or (3) Appearing in close proximity to, or entering the

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

immediate family member. (1) Threatening the safety of the targeted person or an in this regard. We disagree. In the first part of this opinion we held that the

p. 5 insufficient evidence, especially since the court did not make a specific finding threat falls within (a)(1). As to a second act, the defendant argues that there is

retaliate constitutes one act for purposes of subsection (a). We agree that the the “pattern.” However, the defendant appears to concede that her threat to finding a “pattern of intimidation,” did not specify the two acts that constituted involving “2 or more acts,” and we acknowledge that the district court, in

5

acts, we have held that other acts which are similar may be considered. prove “2 or more acts.” RSA 633:3-a, II(a) defines a course of conduct as The defendant’s other sufficiency argument is that the plaintiff did not

staff members in deciding whether the plaintiff met her burden. victim after being told by the police not to contact her. conclude that the district court correctly considered the acts against the other acts required to prove a course of conduct. Id. at 682-83. Similarly, here we the act of telephoning the victim’s friend could be considered one of the two between the defendant and the intended victim.” Id. We thus concluded that that that statute “does not require that the act of communication take place include any act of communication as defined in RSA 644:4, II (Supp. 2004) and 682. We held that under RSA 633:3-a, II(a)(7), a course of conduct may the victim and could not be considered part of the course of conduct. constitute an exhaustive list. When a statute sets forth a nonexhaustive list of Id. at victim’s friend – not to the victim herself – was merely an attempt to telephone include, but not be limited to,” provides that the enumerated acts do not 681. The defendant argued that a telephone call during which he spoke to the employment. Moreover, the statute, through its use of the phrase “may merely “appearing” at or in “close proximity to” the targeted person’s place of Gubitosi, 152 N.H. at alleged in the indictment was that the defendant attempted to telephone the This conclusion finds support in State v. Gubitosi. There, one of the acts

may be considered as acts constituting a course of conduct under section II. Thus, we conclude that threats directed at the targeted person’s co-workers Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 5-6 (2003).

statutory requirements were satisfied. for the district court to have looked to these acts in determining whether the acts the court considered, we do not agree with the defendant that it was error immediate family. Indeed, subsection (a)(3) expressly includes the act of includes injury to the targeted person’s pet or a pet belonging to that person’s threats against the targeted person’s “immediate family.” Subsection (a)(6) against the targeted person directly. Subsection (a)(1), for example, includes constitute a course of conduct, as defined in section II, are not limited to acts course of conduct targeted at a specific person or individual, the acts that While the defendant correctly points out that there must be proof of a

other staff members. Although it is unclear from the record exactly what other conduct that did not involve Fisher directly, such as that directed towards of purpose.” p. 6 specific acts “over a period of time, however short, which evidences a continuity

6

See RSA 633-3-a, II(a).

must make findings on the record that a defendant engaged in two or more RSA 173-B:5 in response to a civil petition filed pursuant to RSA 633:3-a, III-a, the trial court stalking orders. However, in order to be consistent with our interpretation of CONST. pt. II, art. 73-a. We hold that when issuing a stalking order in their issuance of civil stalking orders under RSA 633:3-a, III-a. See N.H. exercise our supervisory authority and provide instructions to trial courts in established to constitute the course of conduct, we take this opportunity to prospectively avoiding similar confusion concerning which acts were Thus, in light of the reasoning articulated above, and in the interest of

RSA 633:3-a, II(a). findings of the course of conduct, which is defined as two or more acts. See contains an enumerated list of prohibited conduct, likewise requires specific

Fillmore, we must conclude that RSA 633:3-a, II(a), which also

requirements of RSA 173-B:3, I, would also be applicable to petitions for civil protective order. We acknowledge that by operation of RSA 633:3-a, III-a, the facts alleged against the defendant be included within the petition for the requirement exists in addition to the requirement of RSA 173-B:3, I, that the protective orders issued under RSA chapter 173-B. This procedural language of RSA 173-B:5 and thus became a procedural requirement for all (emphasis added). Our holding in Fillmore was based upon the statutory order to issue a final restraining order against a defendant.” Id. at 285 require that a trial court must make a specific finding of criminal conduct in contains an enumerated list of prohibited conduct, we read RSA 173-B:5 to order issued under RSA chapter 173-B. We stated: “Because RSA 173-B:1 In Fillmore v. Fillmore, 147 N.H. 283, 284 (2001), we vacated a protective

our interpretation of RSA chapter 173-B to orders on civil stalking petitions. RSA 173-B.” Thus, RSA 633:3-a, III-a arguably mandates the applicability of requirements. and the penalties for violation thereof shall be the same as those set forth in which are within the definition of course of conduct – satisfies the statutory proceedings, the methods of notice, service, and enforcement of such orders, granted, the procedures and burdens of proof to be applied in such RSA 633:3-a, III-a specifically provides, “The types of relief that may be

633:3-a. yet had occasion to decide whether such a requirement exists under RSA two acts constitute the course of conduct required by the statute. We have not whether trial courts are required to make specific findings as to precisely which However, the defendant’s argument raises an important question:

definition of course of conduct. Thus, any one of these several acts – all of acts the defendant perpetrated against the plaintiff’s coworkers fall within the is commonly understood.

p. 7 7 the plaintiff was afraid for her own safety and that her fear was reasonable. and statements directed towards the plaintiff. It also includes evidence that a course of conduct, including telephone messages and threatening phone calls

because I believe that the defendant’s conduct did not amount to stalking as it State v. Gubitosi, 152 N.H. 6 p. 7 73, 681-82 (2005). I write separately, however, stalked through persons other than family members, such as employees, see I(a). I also concur with the majority that the “targeted individual” may be finding that the plaintiff was the “targeted individual” here. See RSA 633:3-a, Thus, I concur with the majority that the record supports the trial court’s

or other relief to a family or household member. plain language of the statute does not limit the availability of a protective order order under RSA 633:3-a, I. It includes evidence that the defendant engaged in The record in this case supports the trial court’s entry of a protective

Id. judgments on the credibility of witnesses and the weight to be given testimony. 146 N.H. 512, 515 (2001). We accord considerable weight to the trial court’s lacking in evidential support or tainted by error of law. Fichtner v. Pittsley, of law and uphold the findings and rulings of the trial court unless they are 633:3-a (Supp. 2006). We review sufficiency of the evidence claims as a matter standard of review, the evidence was sufficient to support a finding under RSA DALIANIS, J., concurring specially. I agree that given our deferential

person who has been the victim of stalking” to seek a protective order. The BRODERICK, C.J., dissented. 633:3-a is inconsistent with its plain language. RSA 633:3-a, III(a) allows “[a] GALWAY and HICKS, JJ., concurred; DALIANIS, J., concurred specially; matter for a stalking petition.” The defendant’s narrow interpretation of RSA that vein, the defendant claims that “disruption of a place of business is not a Affirmed.

court. Accordingly, for the foregoing reasons, we affirm the order of the district

405; Bethlehem, 154 N.H. at ___, 911 A.2d at 5.

petition to those who meet the definition of “family or household member.” In the defendant argues that RSA 1 p. 7 73-B:1, X limits who may file a stalking 173-B, RSA 633:3-a is limited in scope by RSA chapter 173-B. In particular, because RSA 633:3-a specifically references and incorporates RSA chapter Aside from her sufficiency arguments, the defendant also contends that do not amount to stalking. p. 8 legitimate activities of picketers, demonstrators, . . . or even pesky reporters”

aggressive consumers. Representative Sytek specifically noted that “the

purpose of the law was to protect businesses and their staff from overly former lovers. There is no indication in the legislative history that the intended and problems of like gravity, such as threatening strangers and obsessive

deliberations surrounding its passage were focused upon domestic violence

8 concern of the bill’s sponsors and supporters.

vehicle for doing so, especially as other remedies were available. While the statute as written is not limited to domestic violence, the

Judiciary, Hearing on HB 476 (April 12, 1993). legislative hearings on the bill demonstrate, domestic violence was a chief violence and similarly threatening behavior. Id.; see Senate Comm. on enforcement officers, prosecutors and stalking victims testified about domestic Stalking is a part of this.” Id. In addition, Governor Stephen Merrill, law Burling remarked, “Domestic violence is becoming a national sport. . . . murdered them, stalked them before doing so. Id. As Representative Peter domestic violence situation escalates into violence.” Susan McLane noted that many women whose husbands or boyfriends need in New Hampshire for legislation to allow the police to interfere before a of domestic violence and sexual abuse.” Id. At the same hearing, Senator behaviors toward innocent people is a serious problem particularly for victims have been curtailed, but I question whether a stalking petition was the proper committee, Representative Carl Johnson stated: “Harassing and threatening Similarly, at the hearing in the house corrections and criminal justice

Criminal Justice, Hearing on HB 476 (Jan. 28, 1993). Laws 1993, ch. 173. As this title suggests, and as their remarks during survivors of domestic violence murders.” House Comm. on Corrections and State to Enforce Domestic Violence Protective Orders Issued in Other States.” Office, urged passage “on behalf of the Attorney General’s Office and the many was entitled “An Act Establishing the Crime of Stalking and Authorizing the the State Office of Victim and Witness Assistance of the Attorney General’s Judiciary, Hearing on HB 476 (April 12, 1993). Sandra Matheson, Director of

senate judiciary committee: “I had no idea . . . that there is such a wide spread The bill’s sponsor, Representative Donna Sytek, testified before the from a business. The trial court could have found that her conduct should defendant and the staff. She was an irate customer, demanding better services claimed staff abuses of her mother. There were angry exchanges between the

establishing the crime of stalking by enacting House Bill (HB) 476. HB 476 In 1993, New Hampshire followed more than thirty other states in

given to her parents, especially her mother. She aggressively complained about The record reveals that the defendant was disgruntled about the care prevent. Accordingly, I respectfully dissent. p. 9 purpose of threatening the targeted person, engaged in the kind of conduct the legislature enacted the stalking statute to Renee Fisher individually – to legal protection, I do not believe that Minichiello the defendant’s conduct entitled Partridge House and its staff – and perhaps

9 purpose” surrogates to include co-workers, I disagree.

person’s co-worker or enters a targeted person’s place of employment for the a stalker communicates a threat against a targeted person through a targeted person’s co-workers could count as part of a course of conduct, such as when individuals, not groups of individuals or institutions. While I do not doubt that does contemplate a situation in which interactions involving a targeted As defined by the legislature, stalking is an offense directed against

the extent the majority opinion seems to expand the legislature’s list of “allplace as a result of the stalker’s attempt to threaten the targeted person. To involving a co-worker would only count as part of a course of conduct if it took immediate family member.” RSA 633:3-a, II(a)(1); with interactions involving an immediate family member, an interaction part of a course of conduct when directed toward “the targeted person or an see RSA 633:3-a, II(a)(3). But as statute requires. To be sure, the statute enumerates six acts which may be

family member is to threaten the targeted person. Furthermore, the statute the stalking statute when the intent behind interacting with an immediate immediate family member is only part of a course of conduct for purposes of at a specific person, threatening, following, approaching or confronting an II(a)(2)-(6). But given the statutory requirement of a course of conduct targeted

thing as a course of conduct targeted at the plaintiff, which is what the stalking A pattern of intimidation to the plaintiff and her staff is not the same

staff.” (Emphasis added.) the plaintiff and was in its result a pattern of intimidation to plaintiff and her of her mother and entered an area of activity which threatened the well being of Madaline Minichiello because her conduct “well exceeded a concern for the care a, I(b). Here, however, the trial court issued a stalking final order against at a specific person.” RSA 633:3-a, I(a) (emphasis added); see also RSA 633:3stalking at issue in this appeal requires proof of “a course of conduct targeted BRODERICK, C.J., dissenting. Either of the two statutory variants of

between an aggressive customer and a calculating stalker. as the defendant was. As written, I believe that the statute blurs the line a “pesky reporter” or a labor picketer, who goes too far, could be convicted just a “pesky” individual and a stalker. Unfortunately, under the statute as written, I agree with Representative Sytek’s remarks; there is a difference between