Beatty v. Keough

Decision Date02 September 2022
Docket Number21-AP-263
Citation287 A.3d 54
Parties Sean BEATTY v. Kathryn KEOUGH
CourtVermont Supreme Court

Sean Beatty, Pro Se, Colchester, Plaintiff-Appellee.

Peter F. Langrock of Langrock Sperry & Wool, LLP, Middlebury, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.


¶ 1. Defendant appeals from the issuance of an anti-stalking order against her. She raises procedural and substantive challenges to the court's decision. We agree with defendant that the evidence does not support the trial court's conclusion that she engaged in "two or more acts over a period of time, however short" as required by 12 V.S.A. § 5131(1)(A). We therefore reverse.

¶ 2. Plaintiff and defendant work in the same location. Defendant is the wife of plaintiff's employer. In late July 2021, plaintiff sought relief under 12 V.S.A. § 5133 following a workplace confrontation with defendant. The court granted plaintiff temporary relief under § 5134. It held a final hearing in August 2021, erroneously believing that defendant had been served with the temporary order. Plaintiff testified at the hearing and the court issued a final order in plaintiff's favor. Defendant then moved to strike the order for lack of service and, following another hearing, the court vacated the final order, reopened the case, and extended the temporary order that had been in place previously.

¶ 3. A new merits hearing was held in October 2021. Plaintiff described defendant as aggressive and hostile. He testified that in late July 2021, defendant wrote the word "abuser" on a large piece of waxed paper and pressed it in his face. Defendant screamed and acted aggressively during this confrontation. When plaintiff pulled the paper down, defendant hit him in the chest. Plaintiff then left the scene and headed outside to his vehicle. Defendant followed him, hollering and finger-pointing. Plaintiff got into his work truck and defendant "spit[ ] in his direction." Plaintiff described past confrontations with defendant as well, including one where she used her car to block his truck and he had to threaten to call the police to get her to move. Defendant denied hitting or spitting at plaintiff. She said that she wrote the word "abuser" on a post-it note and held it up. She denied writing it on larger paper and pushing it in plaintiff's face.

¶ 4. The court made findings on the record at the close of the hearing. It credited plaintiff's version of events. It found that the parties engaged in an escalating verbal dispute at the conclusion of which defendant made a sign on waxed paper that said "abuser" and pressed it in plaintiff's face. When plaintiff went to remove the sign, defendant responded by striking plaintiff in the chest. Plaintiff then went to the parking lot and defendant followed him there. During all of this, defendant was using language that "did not necessarily convey threats of violence, but certainly [was] not friendly and [was] intended to intimidate emotionally, if not physically." Defendant then spit at plaintiff in the parking lot.

¶ 5. The court concluded that there were two separate incidents, albeit relatively close in time, where defendant behaved in a way that she knew or should have known would place a reasonable person in fear of harm, and this satisfied the statutory definition of stalking. The court thus issued a final anti-stalking order in plaintiff's favor. This appeal followed.

¶ 6. On review of the court's discretionary decision, we will uphold "its findings if supported by the evidence and its conclusions if supported by the findings." McCool v. Macura, 2019 VT 85, ¶ 6, 211 Vt. 263, 224 A.3d 847 (quotation omitted). We leave it to the factfinder to assess the credibility of witnesses and weigh the evidence. See Cabot v. Cabot, 166 Vt. 485, 497, 697 A.2d 644, 652 (1997) ("As the trier of fact, it [is] the province of the trial court to determine the credibility of the witnesses and weigh the persuasiveness of the evidence."). We conclude that the evidence here was insufficient as a matter of law to show a "course of conduct" as defined in 12 V.S.A. § 5131(1)(A).

¶ 7. The term "stalk" means, in relevant part, "to engage purposefully in a course of conduct directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to ... fear for his or her safety." Id. § 5131(6)(A). A " [c]ourse of conduct’ means two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person's property." Id. § 5131(1)(A) (emphasis added); see also 13 V.S.A. § 1061(1)(A) (providing same definition of "course of conduct" for purposes of criminal stalking law). The term "threaten" requires "a communicated intent to inflict physical harm on another person," Hinkson v. Stevens, 2020 VT 69, ¶ 46, 213 Vt. 32, 239 A.3d 212, although the threat need not be "express or overt." 12 V.S.A. § 5131(1)(B).

¶ 8. We held in Hinkson that "[b]ecause the Legislature has applied both civil and criminal sanctions to the same definition of stalking, we interpret this civil statute as if it were a criminal statute." 2020 VT 69, ¶ 30, 213 Vt. 32, 239 A.3d 212. We thus construe the statute "narrowly." Id. ¶ 25. This approach "ensures that statutes provide fair warning of the legal consequences for committing certain, defined acts." Id. ¶ 31 (quotation omitted).

¶ 9. Other courts employ language similar to that found in Vermont's civil stalking law and several have considered the meaning of the "two or more acts" requirement with respect to acts close in time. See generally P. Kussmann, Validity, Construction, and Application of State Civil Stalking Statutes, 14 A.L.R.7th Art. 4, 2016 WL 4945094 (2016) (collecting cases). As the ALR explains:

Stalking cannot consist of a single, isolated act because it involves a series of contacts aimed against a particular person causing that person fear or significant emotional distress. Consequently, civil stalking statutes define "stalking" as a course of conduct consisting of two or more acts directed at a specific person, and a single contact, no matter how offensive or threatening, will not support the entry of a civil stalking protection order. Multiple contacts can occur on a single day, however, as long as they are sufficiently distinct.

Id. § 2 (citations omitted).

¶ 10. In Hosley v. Seaman, No. 07CA2962, 2008-Ohio-1695, 2008 WL 946085 (Ct. App. Apr. 4, 2008), for example, a court found a "pattern of conduct" sufficient for a civil stalking protection order where a defendant touched a minor child several times in the course of one evening. Id. ¶ 13. The plaintiff alleged in that case that, on the evening in question, the defendant entered a room where the child was using a computer and touched her inappropriately. He then left the room. "After a period of time," he reentered the room and touched the child again. Id. ¶ 4. He left and reentered the room a third time and touched her again. The trial court granted the stalking order, finding that three separate incidents occurred on the evening in question.

¶ 11. On appeal, the defendant argued that there was no "pattern of conduct," defined by statute as "two or more actions closely related in time." Id. ¶ 11 (citation omitted). The court found that "[a] pattern of conduct requires only two or more actions closely related in time" and the law "[did] not require that the pattern of conduct be proven by events from at least two different days." Id. ¶ 12. Citing a criminal case, it held that "a pattern of conduct can arise out of two or more events occurring on the same day, provided that there was a sufficient interval between them." Id. The court reasoned that because the defendant touched the minor "on three occasions, separated by periods of time, on the same evening," this was "sufficient to establish a pattern of conduct" as required by law. Id. ¶ 13.

¶ 12. An Ohio appeals court revisited this issue in Echemann v. Echemann, No. 17-15-19, 2016-Ohio-3212, 2016 WL 3057979 (Ct. App. May 31, 2016). It explained that the phrase "closely related in time" was not defined by law and reasoned that "[i]n failing to delimit the temporal period within which the two or more related actions or incidents must occur, the statute leaves the matter to be determined by the trier of fact on a case-by-case basis." Id. ¶ 35 (quotations omitted). It emphasized that "the trier of fact should consider the evidence in the context of all the circumstances of the case" and that "depending upon the particular circumstances, a pattern of conduct can arise out of two or more actions or incidents occurring on the same day or over a period of years." Id. (quotation and citation omitted).

¶ 13. Florida courts have considered similar questions as well. Under Florida law, "[t]wo or more acts that are part of one continuous course of conduct are legally insufficient to qualify as separate instances of harassment" for purposes of a stalking injunction. Sutton v. Fowler, 332 So. 3d 1001, 1005 (Fla. Dist. Ct. App. 2021) (quotation omitted). Florida law defines a "course of conduct" as "a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose." Id. (quotation omitted). "A course of conduct requires multiple acts that are separated by time or distance." Id. (quotation omitted). The Sutton court emphasized that Florida law "does not allow the trial court to enter injunctions simply to keep the peace between parties who, for whatever reason, are unable to get along and behave civilly towards each other." Id. at 1006 (quotation omitted).

¶ 14. The court applied this standard in Levy v. Jacobs, 69 So. 3d 403 (Fla. Dist. Ct. App. 2011), to a case involving a fistfight. The parties lived in the same condominium building. As part of an argument outside the...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT