Swett v. Gates

Decision Date19 May 2023
Docket Number22-AP-143
PartiesElizabeth Swett, Doug Earle, Gordon Stake v. Brian Gates
CourtVermont Supreme Court

On Appeal from Superior Court, Rutland Unit, Civil Division Helen M. Toor, J.

Antonietta Girardi Dutil of Facey Goss &McPhee P.C. Rutland, for Plaintiffs-Appellees.

Nancy Corsones and Wendy Fitzsimons of Corsones and Fitzsimons LLP, Rutland, for Defendant-Appellant.

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


¶ 1. Defendant appeals from the trial court's extension and modification of three stalking orders against him. He raises numerous arguments, many of which relate to the requirements for the issuance of initial stalking orders rather than extensions of those orders. We conclude that the court acted within its discretion in extending and modifying the orders and we therefore affirm.

I. Factual Background

¶ 2. The parties are longtime neighbors who live on the same street in Mendon, Vermont. Defendant owns a home on the street; he also owns a vacant lot next to the home of plaintiffs Swett and Earle. In January 2021, plaintiffs sought stalking orders against defendant. They alleged that defendant was engaging in aggressive and intimidating behavior, including yelling and swearing at them, firing his gun to intimidate them, and otherwise acting in ways that made them fear for their physical safety. The court granted temporary relief to plaintiffs.

¶ 3. In February 2021, the parties waived findings and stipulated to three one-year stalking orders-one order protecting each plaintiff. The orders prohibited defendant from contacting plaintiffs and ordered him to stay 100 feet away from them and their residences with exceptions for driving, plowing, and dog walking. The orders also prohibited defendant from discharging a firearm on his vacant lot until June 1, 2021.

¶ 4. In February 2022, plaintiffs moved to extend and modify the orders, alleging that defendant continued to engage in intimidating, hostile, and aggressive behavior. Following a hearing, the court granted plaintiffs' request. It made the following findings. Before plaintiffs obtained stalking orders in February 2021, defendant repeatedly screamed profanities at plaintiffs Swett and Earle from his vacant lot. He told them he had "nothing better to do than to torture the fuck out of my neighbors!" On one occasion after an interaction with plaintiff Stake, defendant shot off over 100 rounds of ammunition on the vacant lot. He shot into a log pile between the open area of his lot and the Swett/Earle residence. Despite his denials, the court found that defendant was shooting in the direction of the Swett/Earle home to scare them.

¶ 5. Turning to events after February 2021, the court found that defendant had been clearing the vacant lot for over a year. He said he was preparing to build something. Plaintiffs believed that defendant was purposefully using loud machinery on the lot for months on end to harass them. The court found that defendant intentionally parked his truck on dark mornings to shine his headlights into the Sweet/Earle home to disturb them. It rejected defendant's assertion that he was simply sitting in his truck reading and checking email at 6 a.m. in that location. Defendant also sat in his car in the road and stared at the Swett/Earle home.

¶ 6. In September 2021, defendant played an electronic game call of a rabbit in distress on the vacant lot for two hours in the late evening until the police arrived. Defendant testified that he did not consider the sound annoying and wanted to see what animals were around for hunting purposes. The court rejected these propositions as not credible and absurd. It found defendant clearly intended to annoy plaintiffs Swett and Earle.

¶ 7. A security camera captured another incident with plaintiff Stake. Defendant was operating an excavator on the vacant lot and as soon as plaintiff Stake walked by with his dog, defendant began screaming at the top of his lungs. Defendant got progressively louder and unmistakably angrier. He used words like "you have a fat ugly wife" as well as cruder comments about both Mr. Stake and Mr. Stake's wife. According to defendant, he was not directing his words at Mr. Stake but just singing along to music and making up songs. The court rejected defendant's testimony as entirely lacking in credibility. It found the anger in defendant's voice unmistakable and found that defendant's words sounded nothing like singing. When asked if he was singing in the recording submitted to the court, defendant acknowledged that he "was just yelling."

¶ 8. The court also rejected defendant's assertion that he was singing when he repeatedly told Mr. Stake that he "better get a gun, motherfucker" and told Mr. Stake and Ms. Swett to "go back to New Jersey," where both were from. Defendant also shouted at plaintiffs with a megaphone, including in June 2021. He told Ms. Swett to "go back to New Jersey if you don't like Vermont, you fucking bitch." He stood on his adjoining lot and called Ms. Swett a "dirty bitch" and a "cunt." Plaintiffs installed security cameras outside their homes because of their concerns about defendant. They were clearly afraid that his excessively angry behavior would escalate to violence. Mr. Stake, who resided primarily in New Jersey, came to Vermont less often because of defendant's harassment.

¶ 9. Based on these and other findings, the court granted plaintiffs' request to extend and modify the existing orders. It explained that under the statute, it had discretion to extend the orders "for such additional time as it deems necessary to protect the plaintiff[s]" and it could modify the order on "a showing of a substantial change in circumstance." 12 V.S.A. § 5133(e). The court emphasized that, under § 5133(e), it did not need "to find that the defendant stalked . . . plaintiff[s] during the pendency of the order[s] to extend" them. The court concluded that a five-year extension of the order was "necessary to protect" plaintiffs and that plaintiffs had shown "a substantial change in circumstance" that warranted modification.

¶ 10. Because the parties stipulated to the initial stalking orders, the court began by describing defendant's pre-February 2021 behavior. See Forrett v. Stone, 2021 VT 17, ¶ 37, 214 Vt. 283, 256 A.3d 585 (per curiam) (recognizing that where parties stipulated to relief-from-abuse order, court could consider "evidence of the abuse that supported the initial temporary order" in deciding whether to extend order). As reflected above, the court found that defendant swore at plaintiffs, shouted about torturing them, and intentionally tried to scare Ms. Swett and Mr. Earle by shooting numerous rounds of ammunition in the direction of their home. The court considered defendant's use of a firearm as part of his threatening conduct to be a red flag of dangerousness.

¶ 11. After the stalking orders were issued, the court found it clear that, despite his denials, defendant knowingly violated the no-contact provisions of the existing orders by yelling at plaintiffs. That alone sufficed to extend the orders. Defendant also swore and used derogatory language toward Ms. Swett; he sat and intentionally stared at the Swett/Earle residence from the street and his neighboring lot. He purposely set off a game-call device with the intent of annoying plaintiffs. He made statements to Mr. Stake that could be considered "true threats." See Hinkson v. Stevens, 2020 VT 69, ¶ 45, 213 Vt. 32, 239 A.3d 212 (holding that term "threat" in stalking statute means "a communicated intent to inflict harm on a person or property" (quotation omitted)). To the extent that defendant claimed not to understand what conduct the order prohibited, the court emphasized that the existing order plainly prohibited any contact, which encompassed yelling at plaintiffs, screaming crude words knowingly directed at them, and telling one plaintiff to get a gun. The court rejected as laughably false defendant's claims that he was merely singing and not directing his words at anyone. To avoid future issues, however, the court added a restriction on singing and playing music, discussed below. See infra, ¶¶ 40-46.

¶ 12. The court explained that, had this been a new stalking petition, it would need to determine if defendant's behaviors toward Ms. Swett and Mr. Earle independently met the definition of "threats," and constituted "stalking" as defined by statute. But the law did not require such proof to extend the orders. See 12 V.S.A. § 5133(e) ("It is not necessary for the court to find that the defendant stalked . . . the plaintiff during the pendency of the order to extend the terms of the order."). The question for the court was whether an extension of the orders was "necessary" to protect plaintiffs, id., and the court found the behavior at issue more than sufficient to meet this standard. It found that defendant showed a disturbing obsession with harassing and annoying plaintiffs and noted that this type of "fixation could be shown to imply more serious threats of harm." Hinkson, 2020 VT 69, ¶ 52. The court had no doubt that reasonable people in plaintiffs' shoes would feel that defendant presented a risk to their physical safety. The court concluded that a five-year extension was warranted given defendant's level of hostility.

¶ 13. Turning to plaintiffs' request for modification, the court found that defendant's repeated violations of the existing orders constituted a "substantial change in circumstance." 12 V.S.A. § 5133(e). It expanded the distance restriction to 300 feet but retained the exceptions for driving on the road, plowing snow, and walking dogs, as long as defendant did not stop or slow down to stare at or...

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