State v. Small

• Decision Date: 16 January 2004
• Docket Number: No. 2002–592.,2002–592.
• Citation: 843 A.2d 932,150 N.H. 457
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Daniel SMALL.

150 N.H. 457

843 A.2d 932

The STATE of New Hampshire

v.Daniel SMALL.

No. 2002–592.

Supreme Court of New Hampshire.

Argued: Nov. 5, 2003.

Opinion Issued: Jan. 16, 2004.

Rehearing Denied March 25, 2004.

Peter W. Heed, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Landya McCafferty, assistant appellate defender, of Dover, on the brief and orally, for the defendant.

NADEAU, J.

The defendant, Daniel Small, appeals his convictions, following a jury trial in Superior Court (Barry , J.), on six felony counts of stalking. See RSA 633:3–a (Supp.2002) (amended 2002); RSA 173–B:9 (2002) (amended 2002). We affirm.

The six indictments against the defendant related to incidents allegedly occurring on or about October 17, 2001, and October 24, 2001. Three indictments, relating to October 17, 2001, alleged that the defendant, having been provided with a protective order issued pursuant to RSA 173–B:3, and having previously been convicted of violating a protective order, purposely committed the following acts: 1) he abused Donna Small by following her in his vehicle as she drove from the area near the Hillsborough County Courthouse to Bedford; 2) he approached within one hundred yards of Donna Small with his vehicle as she drove from the area near the Hillsborough County Courthouse to Bedford; and 3) he engaged in contact with Donna Small by gesturing at her with his middle finger. The three indictments relating to October 24, 2001, alleged that the defendant, having been provided with a protective order issued pursuant to RSA 173–B:3, and having previously been convicted of violating a protective order, purposely committed the following acts: 1) he abused Donna Small by following her in his vehicle as she rode in a car from the area near the Peterborough Police Department to Sandhill Road; 2) he abused Donna's daughter, Jennifer Small, by following her in his vehicle as she drove from the area near the Peterborough Police Department to Sandhill Road; and 3) he approached within one hundred yards of Donna Small with his vehicle as she rode in a car from the area near the Peterborough Police Department to Sandhill Road.

The jury could have found the following facts. At the time of the alleged offenses, the defendant was married to Donna Small. In June 2000, the defendant filed for divorce and Donna obtained a restraining order against him. On October 17, 2001, Donna and the defendant were at the Hillsborough County courthouse in Manchester for a trial against the defendant for criminal threatening and restraining order violations. After the trial, the two left the courthouse, entered their vehicles, and proceeded in opposite directions around the block to the intersection of Granite and Elm Streets. As Donna pulled up to the intersection to take a right onto Granite Street, the defendant, heading perpendicular to Donna onto Granite from Lake Avenue, pulled up in front of Donna, stopped, and "gave [her] the finger." After the defendant moved on, Donna proceeded straight on Elm Street instead of turning right.

Donna then decided to stop at a store to buy bread. While in the store, Donna saw the defendant's vehicle pass by the store twice. Donna waited a few minutes, left the store, and drove toward the intersection of Routes 101 and 114. At that intersection, Donna saw the defendant's vehicle in front of her. The defendant, seeing Donna in his rear view mirror, turned around and gave her "more hand signals." The two then proceeded in different directions at that intersection.

On October 24, 2001, the defendant had visitation with his and Donna's son. The pre-arranged drop-off site after visitation was the Peterborough police department parking lot. Donna, her daughter Jennifer, and Rebecca, the daughter of Donna and the defendant, arrived at the police station first that evening in Jennifer's car. The defendant arrived, dropped off his son, and left without incident. Jennifer waited a few minutes and then left in the same direction the defendant had gone. Donna saw the defendant in his vehicle in a parking lot with the vehicle's headlights off. As Jennifer's car passed, the defendant turned on his headlights and pulled out behind her. The defendant followed Jennifer's car less than a car's length behind her with his high beams on.

Jennifer proceeded onto Route 202 with the defendant still following. Although she would normally have stayed on Route 202 until it intersected with Route 136, she took an earlier turn onto Sandhill Road to try to get away from the defendant. The defendant also turned onto Sandhill Road, which would not have been the fastest way to return to his home. When Donna held up her cell phone to call 911, the defendant turned around and headed back onto Route 202.

The defendant argues that the trial court erred by denying his motion to dismiss the indictments on the grounds that the temporary restraining order had expired by the time the charged incidents occurred. The defendant acknowledges that RSA chapter 173–B contains no express time limit for temporary restraining orders, but contends that RSA 173–B:5, VI (2002) restricts the duration of final orders to no more than a year unless extended by court order. The defendant then argues that "it follows from the statute as a whole, that a ‘temporary’ order must have a shorter duration than a ‘final’ order." Thus, according to the defendant, the temporary restraining order issued against him on June 26, 2000, must have expired by June 26, 2001, prior to the charged incidents. As there was no valid restraining order in effect at the time of the charged incidents, the defendant argues, his convictions must be overturned.

The State argues, and the trial court found, that the restraining order was extended by the superior court pursuant to an agreement by the parties. The temporary order issued by the Goffstown District Court on June 26, 2000, contained a notice of hearing set for July 11, 2000. See RSA 173–B:3, VII (2002). On that date, the district court issued an order providing in part:

Temporary Orders continued. The Court understands that Petition for Divorce is going to be filed in the Superior Court. Counsel for the respondent is to file, with this Court, a copy of said pleadings within thirty days. Once the Petition for Divorce is filed with the Superior Court this case is to be transferred to Hillsborough County Superior Court.

In November 2000, Donna and the defendant filed in superior court an amended domestic violence order that they both had agreed to and signed. It provided in part that "[t]he domestic violence order entered by the Goffstown District Court on July 11, 2000 shall remain in full force and effect" except with respect to its visitation conditions. The marital master recommended approval of the proposed order on November 27, 2000, and the court approved the master's recommendation on November 28, 2000. Following a hearing, a final domestic violence order was issued by the superior court on January 28, 2002.

Nothing in the record indicates that the defendant ever appealed the temporary order or moved to have it terminated. Indeed, he agreed that it would remain in force. He now, however, seeks to collaterally attack the order in this proceeding. We have recognized that such collateral attacks are generally not permitted:

The general underlying premise is that a person subject to an injunctive order issued by a tribunal with the requisite personal and subject matter jurisdiction should be bound to pursue any objection to the order through the constituted judicial process available for that purpose. Such an individual has the means to press any meritorious claim of right without first acting in violation of a presumptively valid ruling that ostensibly binds him. As a consequence, a court trying a charge of such a violation is justified in refusing to entertain a defense in the form of a collateral attack on the order, the subject of which could have been raised and litigated through the judicial process prior to the violation charged.

State v. Grondin, 132 N.H. 194, 200, 563 A.2d 435 (1989). Accordingly, we hold that the defendant may not collaterally attack the protective order in this criminal proceeding; therefore, we need not address the merits of the defendant's challenge of the protective order.

The defendant next argues that the trial court erred in failing to instruct the jury on his "legitimate purpose" defense. "We review the trial court's failure to give an instruction for an unsustainable exercise of discretion." State v. Demeritt, 148 N.H. 435, 445, 813 A.2d 393 (2002). The trial court must grant a defendant's request for a "jury instruction on a specific defense if there is some evidence to support a rational finding in favor of that defense." Id. (quotation omitted). We will not reverse a jury verdict, however, "when [the] jury charge fairly covers the issues and law of a case." Id. (quotation omitted).

RSA 633:3–a, II(a) provides that the term "course of conduct shall not include ... conduct that was necessary to accomplish a legitimate purpose independent of making contact with the targeted person." The defendant, however, was charged under RSA 633:3–a, I(c), which requires only a specified single act of conduct for its violation. Thus, his argument that he was entitled to a legitimate purpose instruction implicitly assumes that the legitimate purpose provision of RSA 633:3–a, II(a) also applies to single acts of conduct charged under RSA 633:3–a, I(c). Because the State does not challenge that assumption, we assume without deciding, for purposes of this opinion only, that conduct necessary for a legitimate purpose is also not included as a "single act of conduct" under RSA 633:3–a, I(c). The defendant's argument also implicitly assumes that a legitimate purpose is a defense to the crime of stalking, and therefore that the lack of a legitimate purpose is not an element of the...