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Nelson v. Schoch

Supreme Court of New Hampshire

March 10, 2009

Stuart Nelson
v.
Richard Schoch,

UNPUBLISHED OPINION

The defendant, Richard Schoch, appeals an order of the district court finding that he stalked the plaintiff, Stuart Nelson. He argues that there was insufficient evidence to establish: (1) a course of conduct as required by RSA 633:3-a; (2) that the acts complained of would cause a reasonable person to fear for his safety; and (3) that the plaintiff experienced actual fear from more than one event. He also contends that the district court's findings were inadequate to support the restraining order and that the order violated his right to due process because it was vague and overbroad. We affirm.

On appeal, 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 evidential support or tainted by error of law. Fisher v. Minichiello, 155 N.H. 188, 190 (2007). We accord considerable weight to the trial court's judgment on the credibility of witnesses and the weight to be given testimony. Id. We view the evidence in the light most favorable to the prevailing party. Id.

A person may be found to have committed stalking if that person "[p]urposely, 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 fear." RSA 633:3-a, I(a). The defendant first argues that the plaintiff failed to establish that the defendant engaged in a "course of conduct." RSA 633:3-a, II(a) defines a course of conduct as "2 or more acts over a period of time, however short, which evidences a continuity of purpose." The definition goes on to set forth a list of acts that might be considered to satisfy the course of conduct requirement; the list is specifically not all-inclusive.

The trial court found that the defendant: (1) repeatedly followed the plaintiff; (2) made an obscene gesture at the plaintiff in a public place; (3) came onto the plaintiff's property despite clearly posted "No Trespassing" signs; and (4) backed his car up on a public way toward the plaintiff, requiring the plaintiff to take evasive action with his car. There is evidence in the record to support each of these findings. That the defendant may have offered an alternative explanation for each of his actions did not require that the trial court accept them. See Hoffman v. Hoffman, 143 N.H. 514, 519 (1999) (trial judge in best position to evaluate evidence, measure its persuasiveness and appraise credibility of witnesses).

Nor does the statute require that each act place the plaintiff in fear; rather, it is the course of conduct that places the victim in fear. See RSA 633:3-a, I(a). In this case, the evidence supported a finding that the acts were targeted at the plaintiff, were intended to harass him and were escalating in both anger and dangerousness. Moreover, the evidence of the course of conduct was sufficient to establish that it would place a reasonable person in fear and that the plaintiff was placed in such fear.

We turn then to the defendant's final argument that the resulting order was vague and overboard. We note that the trial court modified the form protective order to specifically provide: "Nothing in this order shall prohibit the defendant from being on his own property." To the extent that the defendant argues that the order would prevent his active participation in ongoing litigation that involved the plaintiff and a third party, we note also that the order provides that contact may be authorized by the trial court. See also State v. Kidder, 150 N.H. 600, 605 (2004). Given the modifications and the defendant's ability to seek further modifications from the trial court, we conclude that the order was neither vague nor overbroad.

Affirmed.

DALIANIS, DUGGAN and HICKS, JJ., ...


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