Submitted November 14, 2013.
9th Circuit Court - Manchester Family Division.
Nathalie Hurley, self-represented party, filed no brief.
Dame & Lucas, PLLC, of Gilford ( Allen J. Lucas on the brief), for the defendant.
CONBOY, J. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.
The defendant, Craig Hurley, appeals an order of the 9th Circuit -- Manchester Family Division ( Emery, J.) granting a domestic violence final order of protection to the plaintiff, Nathalie Hurley. See RSA 173-B:5 (2002 & Supp. 2013) (amended 2013). He argues that the evidence was insufficient to support the court's findings. We reverse.
The following facts are drawn from the record. The parties have been divorced since 2008. On December 9, 2012, the defendant sent a text message to the plaintiff telling her that his grandmother had just died, but asking her not to tell their child. During the course of approximately fifteen subsequent reciprocal messages, the exchanges became heated, and the plaintiff testified that, in his final text, the defendant wrote, " Whatever. [165 N.H. 750] Wish you would die in a fiery crash." She filed her petition for a domestic violence protective order the following day.
Although the defendant had never threatened or abused the plaintiff prior to this one text message, the court found that, by sending the message, the defendant committed criminal threatening, see RSA 631:4, I (2007), and that such conduct constituted a credible present threat to the plaintiff's safety, see RSA 173-B:5, I, because the defendant " has worked on [the] plaintiff's car [and] know[s] where she live[s]." The court issued a domestic violence final order of protection restricting certain of the defendant's activities for one year, subject to extension. This appeal followed.
The defendant argues that the evidence was insufficient to support the court's findings that he (1) committed criminal threatening and (2) posed a credible present threat to the plaintiff's safety. 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 evidentiary support or tainted by error of law. Walker v. Walker, 158 N.H. 602, 608, 972 A.2d 1083 (2009). We accord considerable weight to the trial court's judgments on the credibility of witnesses and the weight to be given testimony. Id. We view the evidence in the light most favorable to the plaintiff. Id.
RSA 173-B:5, I, predicates relief for domestic violence upon a showing of " abuse" by a preponderance of the evidence. " Abuse," as defined in RSA 173-B:1, I (Supp. 2013), means " the commission or attempted commission" by, among others, a " former sexual or intimate partner" of one or more certain enumerated criminal acts, including criminal threatening, when such conduct constitutes " a credible present threat to the [plaintiff's] safety." A credible present threat requires " more than a generalized fear for personal safety." Knight v. Maher, 161 N.H. 742, 745, 20 A.3d 901 (2011).
We conclude, based upon all the facts and circumstances of this case, that the defendant's single text message -- " Wish you would die in a fiery crash" -- did not constitute criminal threatening. RSA 631:4, I(d) sets forth the three elements of criminal threatening: (1) ...