2010-476 Jessie Despres v. Kevin Hampsey

Sheldon, Davis, Wells & Hockensmith, P.C.

No. 2010-476 Jaffrey-Peterborough District Court

protective order, see HICKS, J. The defendant, Kevin Hampsey, appeals a final stalking

Fernald, Taft, Falby & Little, P.A.

Peterborough District Court (Runyon, J.). We affirm. RSA 633:3-a (2007), issued against him by the Jaffrey-

the brief and orally), for the defendant.

Davis on the memorandum of law and orally), for the plaintiff.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as a whole.” Fisher v. Minichiello p. 2 of the legislature’s intent as expressed in the words of the statute considered as the evidence. “In matters of statutory interpretation, we are the final arbiters This appeal raises issues of statutory interpretation and sufficiency of

plaintiff’s] allegations were too vague and non-specific for [him] to respond to.” credibility of the witnesses; and (4) issuing a stalking order where “most of [the making findings that are unsupported by the record; (3) failing to weigh the to make findings of two or more specific acts that constitute stalking; (2) On appeal, the defendant argues that the trial court erred in: (1) failing

any time.

intrusions by an unwelcome stranger could occur unexpectedly at Walker v. Walker entries would cause the plaintiff’s minor children to fear that such person to fear for her safety; and further, that such unannounced

include. dressed, with sexual remarks that would cause a reasonable legislature might have said nor add words that it did not see fit to without prior consent and confronted her there, when she was not not subject to modification. We will neither consider what the doing so, he entered the plaintiff’s apartment unannounced and occasions when the defendant had no legitimate official purpose for under RSA 633:3-a, II, (a), (2) & (3) & (b), in that on two or more

When the language of a statute is clear on its face, its meaning is we ascribe the plain and ordinary meanings to the words used. We first examine the language of the statute, and, where possible, [The defendant’s] behavior constituted a “course of conduct”

to sufficiency of the evidence claims, we review them “as a matter of law and , 158 N.H. 602, 605 (2009) (quotation omitted). With respect

The trial court found:, 155 N.H. 188, 191 (2007).

in.” constant drive-by’s, . . . which are . . . followed by either calls or him stopping intimidated by the defendant, and that her “kids are intimidated by the intercourse with her. She told the court that she felt threatened and right ear,” slam his body into hers, and tell her he wanted to have sexual would have caught [her] in less clothes and then proceeded to kiss [her] in [her] uncomfortable, and that the defendant “made comments on how he wished he outside. The plaintiff testified that she was in her pajamas and felt because her basement had flooded. After checking the basement, the two went a specific incident that occurred in March 2010, when she called the defendant and that he made sexual comments and advances toward her. She recounted without prior consent.’” He argues that this finding is insufficient because the p. 3 purpose for doing so, he entered the plaintiff’s apartment unannounced and that ‘on two or more occasions when the defendant had no legitimate official The defendant first contends that “the trial court made a general finding

RSA 633:3-a.

school of a member of that person’s immediate family.

person can be found, or the residence, place of employment or

residence, place of employment, school, or other place where the

(3) Appearing in close proximity to, or entering the person’s

or a member of that person’s immediate family. (2) Following, approaching, or confronting [the targeted] person,

. . . .

thereof: not be limited to, any of the following acts or a combination with the targeted person. A course of conduct may include, but 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

time, however short, which evidences a continuity of purpose. A

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

II. As used in this section:

. . . .

person is actually placed in such fear; safety of a member of that person’s immediate family, and the

reasonable person to fear for his or her personal safety or the

conduct targeted at a specific person which would cause a

(a) Purposely, knowingly, or recklessly engages in a course of

I. A person commits the offense of stalking if such person:

The statute at issue provides, in pertinent part:

witnesses and the weight to be given testimony.” Id. considerable weight to the trial court’s judgments on the credibility of view the evidence in the light most favorable to the plaintiff” and “accord evidential support or tainted by error of law.” Fisher, 155 N.H. at 190. “We uphold the findings and rulings of the trial court unless they are lacking in p. 4 4

The defendant likens this case to Kiesman v. Middleton

her there.” This finding is sufficient under Fisher. plaintiff’s apartment unannounced and without prior consent and confronted prohibited conduct set forth in RSA 633:3-a, II (2) and (3) by entering “the concluding that on two or more occasions the defendant engaged in the findings and rulings summarizing the plaintiff’s and defendant’s testimony and Here, the trial court attached to its order two single-spaced pages of narrative relied in issuing the order, nor the reasoning.” Kiesman, 156 N.H. at p. 4 481. standardized form, [gave] no indication of the facts upon which the trial court however short.” RSA 633:3-a, II(a); cf distinguishable. There, “[t]he final stalking order, which was issued on a occurred; rather, the statute requires “2 or more acts over a period of time, 156 N.H. 797 (2008) (vacating stalking order in light of Kiesman the plaintiff to provide the specific dates upon which the prohibited acts). Kiesman is make specific findings. Kiesman incidents might have occurred.” Neither the statute nor our case law requires, 156 N.H. at 481-82; see South v. McCabe, (2007), in which we vacated a stalking order because the trial court failed to “unannounced and without prior consent,” that he “is left wondering when the respect to the finding that he had entered the plaintiff’s apartment, 156 N.H. 479 Accordingly, we are unpersuaded by the defendant’s argument, with the specific dates upon which he or she allegedly suffered abuse”). Fisher it does not “oblige[] a plaintiff seeking a temporary protective order to set forth period of time, however short, which evidences a continuity of purpose.” misconduct prompting a domestic violence petition not be too distant in time,” on the record that a defendant engaged in two or more specific acts over a N.H. 11, 16 (2010) (noting that while our case law “mandate[s] that the petition filed pursuant to RSA 633:3-a, III-a, the trial court must make findings We have held that “when issuing a stalking order in response to a civil. In the Matter of Sawyer & Sawyer, 161

what the statute itself requires. as enumerated in the statute; we did not mandate any more specificity than trial court identify two or more specific acts that constitute prohibited conduct conduct, which is defined as two or more acts.” Id. Thus, we required that the of prohibited conduct, likewise requires specific findings of the course of must conclude that RSA 633:3-a, II(a), which also contains an enumerated list interpretation of RSA 173-B:5 in [Fillmore v. Fillmore, 1 p. 4 47 N.H. 283 (2001)], we II-a. See id. We reasoned that “in order to be consistent with our a and protective orders under RSA chapter 173-B, as directed by RSA 633:3-a, conformity between the requirements for civil stalking orders under RSA 633:3- , 155 N.H. at 193 (quotation omitted). That holding established

findings of specific acts.” “court found only that a category of actions had happened, without making any made sexual comments to her. While these circumstances, as noted above, p. 5 defendant encountered the plaintiff when she was less than fully dressed and The record also supports a finding that, on other occasions, the

matter of law, to establish a course of conduct. remarks, the other elements of the trial court’s finding are sufficient, as a and confronted her, she also was undressed and the defendant made sexual that each time the defendant entered the plaintiff’s apartment unannounced and confronted her there.” Even assuming the evidence would not establish 5 he entered the plaintiff’s apartment unannounced and without prior consent occasions when the defendant had no legitimate official purpose for doing so, at [her].” This testimony supports the trial court’s finding that “on two or more house, where he once again just walked in, came there for no -- but to scream taken care of” and “[e]verything was all set,” the defendant “showed up at [her] from a code enforcement officer. She testified that although “the issue was always does, and walked in.” She recounted another incident following a visit noticed that her water bill had gone up. So he showed up unexpectedly, like he weeks ago . . . [the defendant] also chose to walk in because the landlord “entering the [targeted] person’s residence.” The plaintiff testified that “a few Pursuant to RSA 633:3-a, II(a)(3), a “course of conduct” may include

“behavior constituted a ‘course of conduct’ under RSA 633:3-a, II, (a), (2) & (3).” we conclude that the evidence supports the court’s finding that the defendant’s summarized and condensed the evidence into a single finding. Nevertheless, defendant making sexual remarks. The trial court appears to have unannounced and unwelcome entry, the plaintiff being undressed, and the incident presenting all of the circumstances stated in the finding; namely, We agree with the defendant that no direct evidence was adduced of any

at her request. check on flooding in her basement, that visit was not unannounced, but rather the plaintiff testified that he made sexual comments to her when he came to apartment unannounced, or that she was undressed.” He also notes that while shower,” “there was no testimony that on those occasions [he] had entered the the defendant had stopped by her apartment “right when [she] got out of the remarks.” He contends that while the plaintiff testified that more than once incident where [he] entered her apartment unannounced and made sexual entered her apartment when she was not dressed, nor did [she] testify to any by the evidence where [the plaintiff] presented no evidence that [he] had ever fear for her safety.” The defendant contends that this finding is “unsupported was not dressed, with sexual remarks that would cause a reasonable person to unannounced and without prior consent and confronted her there, when she legitimate official purpose for doing so, he entered the plaintiff’s apartment the court’s finding that “on two or more occasions when the defendant had no The defendant next challenges the sufficiency of the evidence to support asked [the plaintiff] to be more specific as to dates and times when [the p. 6 nonspecific for him to defend against. He asserts that “[w]hen the trial court stalking order against him where the plaintiff’s allegations were too vague and Finally, the defendant argues that the trial court erred in issuing a civil

of witnesses, and determine the weight to be given evidence.” N.H. Dep’t of the purpose of having the contact with her that the plaintiff described.” court’s discretion to resolve conflicts in the testimony, measure the credibility provided several witnesses to deny, he did so at the plaintiff’s apartment, for regarding her and her children’s fear of the defendant. “It was within the trial entering other tenants’ premises without permission, which the defendant As noted previously, the court had before it the plaintiff’s testimony instance, the court “conclud[ed] that whether the defendant makes a habit of evidence and found Ms. Despres more credible than Mr. Hampsey.” For however, that the trial court’s order shows that “of necessity, [it] weighed the no findings as to the credibility of the witnesses.” We agree with the plaintiff, The defendant nevertheless argues that the trial court erroneously “made

[him], not call him repeatedly” and would have timely paid her rent. plaintiff “were truly afraid of [him], she would have sought to avoid contact with time, prompting the defendant to come to collect it. He argues that if the she had issues with the apartment and habitually failed to pay her rent on where the plaintiff called the defendant instead of his business partner when children.” He further contends that the finding is unsupported by the evidence forth now [is] because she was scared of getting kicked out when she has three plaintiff’s friend, Jenny Motuzas, that the reason “why this is finally all coming her fear of being evicted. Specifically, the defendant cites the testimony of the light of testimony that the real reason for the plaintiff’s stalking petition was plaintiff and her children were afraid of him. He first challenges that finding in The defendant next argues that the trial court erred in finding that the

record, that the court erred. Envtl. Servs. v. Marino, 155 N.H. 709, 717-18 (2007). We cannot say, on this

anytime he wants to, I take that as a threat.” the sexual comments or advances. Kevin Hampsey walking in my apartment because he walks in whenever he wants.” She later stated that “it’s just not key and can enter my house whenever he wants. So I’m afraid to be there access to her apartment. She testified: “I don’t sleep at night. The man has a she felt threatened not only by the defendant’s sexual advances, but by his member of that person’s immediate family”). Indeed, the plaintiff stated that reasonable person to fear for his or her personal safety or the safety of a 633:3-a, I (requiring that the course of conduct be such as “would cause a provide context and support for the plaintiff’s fear of the defendant. See RSA need not be part of the specific acts proven under RSA 633:3-a, II(a)(3), they do p. 7 7

DUGGAN and CONBOY, JJ., concurred. dates upon which the acts constituting a “course of conduct” occurred. See As noted above, the plaintiff is not required to allege or prove the specific

nonspecific for him to defend against. the defendant’s claim that the plaintiff’s allegations were too vague and claiming that each time he knocked on the door. The record does not support Moreover, the defendant himself testified regarding both specific incidents, landlord’s water bill and the other to a visit by a code enforcement officer. two specific incidents of unwanted entry by the defendant, one related to the RSA 633:3-a, II(a); cf. Sawyer, 161 N.H. at 16. The plaintiff testified to at least

denial.” specific times,” so that all he could do in response “was provide a general unable to provide any testimony as to specific incidents, specific dates, or defendant] had entered her house unannounced and without consent, she was