Levering v. Downer, 21-AP-268

• Citation: 21-AP-268
• Case Date: June 17, 2022
• Court: United States State Supreme Court of Vermont

Lori Levering
v.
Mark Downer*

Thomas Doogan
v.
Mark Downer*

Nos. 21-AP-268, 21-AP 269

Supreme Court of Vermont

June 17, 2022

In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

Appealed From: Superior Court, Windham Unit, Civil Division CASE NOS. 21-ST-00722 & 21-ST-00745 Trial Judge: Katherine A. Hayes

ENTRY ORDER

In the above-entitled causes, the Clerk will enter:

Plaintiffs Lori Levering and Thomas Doogan, a married couple, each sought and obtained a final stalking order against their neighbor, defendant Mark Downer. In this consolidated appeal, defendant challenges both orders, arguing that the trial court misinterpreted the "reasonable person" standard in the stalking statute; that the court erred by excluding character evidence of plaintiff Levering; and that the course of conduct to which plaintiffs testified was insufficient to constitute stalking. We affirm.

At the merits hearing, plaintiffs testified, among other things, that defendant drove by them with a trailer and swerved near enough so that sticks and brush hanging out of the trailer struck plaintiffs; that defendant told plaintiffs he had inventoried their property and was around twenty-four hours a day, seven days a week; and that defendant set off loud fireworks to scare plaintiffs and their dogs when they were walking by defendant's home.

Defendant testified that he did not swerve toward plaintiffs with his trailer and instead plaintiff Levering ran across the road to cause a confrontation. He denied ever having suggested that he was keeping tabs on plaintiffs' property or surveilling them. Defendant also testified that he routinely sets off fireworks to ward away a nearby family of foxes from his chicken coop, and that he never intended to scare plaintiffs or their dogs.

Defendant's counsel sought to present as a witness the president of the neighborhood homeowner's association, who would have testified that plaintiff Levering "has been the source

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of difficulties with many of the owners" and had filed an anonymous grievance against defendant complaining about defendant's chickens even though the association bylaws permit keeping chickens. Defendant's counsel argued that this evidence was critical to show plaintiff's character-specifically that she had antagonized defendant and other neighbors and was mentally unstable. Defendant's counsel also argued that this evidence had bearing on the reasonable-person standard. The court disallowed this testimony as inadmissible hearsay and because the witness seemingly lacked personal knowledge of whether plaintiff Levering had authored the anonymous grievance and of any problems she may have caused for other homeowners. The court additionally ruled that the proffered testimony was irrelevant because the stalking statute focuses on the perspective of the defendant, and a nonparty's perspective of plaintiff's character did not bear on whether defendant should have known that his conduct would cause a reasonable person to fear for their safety.

The court made findings orally on the record. It found plaintiffs' recitation of events largely credible and concluded that plaintiffs satisfied the statutory elements of stalking. It issued stalking orders protecting both plaintiffs until the end of January 2022. This appeal followed.^[1]

Defendant first argues that the trial court misinterpreted the "reasonable person" standard in the stalking statute. In doing so, he contends that it was not credible that plaintiff Levering,...