Sean Beatty v. Kathryn Keough

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.

2022 VT 41

No. 21-AP-263

Sean Beatty Supreme Court

On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division

Kathryn Keough May Term, 2022

Samuel Hoar, Jr., J.

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. REIBER, C.J. 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.

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¶ 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).

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¶ 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. 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) (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 (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.

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¶ 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 (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 “[d]epending 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, “two

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

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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 building, the defendant punched the plaintiff. The plaintiff then

entered the building and conversed with the desk clerk about calling the police. Between five to

seven minutes later, the defendant entered the building, screaming and cursing. He grabbed the

plaintiff’s neck and threw him on the floor. The plaintiff sought “an injunction against repeat

violence,” which requires “at least two qualifying incidents of violence” or stalking.” Id. at 404-

05.

¶ 15. The court explained that “[m]ultiple acts stemming from a single violent incident

do not constitute ‘repeat violence’ under [Florida law] where those acts [are] not separated by time

or distance.” Id. The plaintiff alleged “that the attack outside the building and the attack inside

the lobby were two separate incidents of violence.” Id. at 404. The defendant argued that “there

was only one continuous incident of violence, which was not separated by time or distance.” Id.

The trial court found two separate acts as “there was a break of five minutes between the incidents

and one occurred outside the lobby and the second one inside the lobby.” Id.

¶ 16. The appeals court upheld this conclusion. It distinguished another case, Darrow v.

Moschella, 805 So. 2d 1068 (Fla. Dist. Ct. App. 2002), where the parties were involved in an

escalating confrontation on a golf course. Id. at 405. The defendant in that case bumped another

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golfer in the chest, approached him again and touched the plaintiff with his hat, and then hit the

plaintiff multiple times after the plaintiff knocked the defendant’s hat off. The court there

explained that there was only one “incident” of violence in that case as “[t]he stages of [the

defendant’s] confrontation with [the plaintiff] were not separated by time or distance” and the two

men had never encountered one another before. Darrow, 805 So. 2d at 1069. In the case before

it, by contrast, even though “the two attacks occurred on the same premises, the first occurred

outside the building and the second occurred inside the building.” Levy, 69 So. 3d at 405. There

was also “a temporal break of approximately five minutes between the incidents,” which was

sufficient to allow the defendant “time to pause, reflect, and form a new intent before the second

attack.” Id. (citing Clinton v. State, 970 So. 2d 412, 414 (Fla. Dist. Ct. App. 2007) (holding that

no double jeopardy violation occurred where defendant stabbed victim, victim walked towards

convenience store and collapsed, and defendant then stabbed victim again)). The court thus found

sufficient evidence to support the trial court’s finding that “there were two separate incidents of

violence . . . rather than a single continuous incident of violence.” Id.

¶ 17. As indicated above, the Levy court referenced a criminal case, which addressed

whether there had been a sufficient temporal break to allow a defendant to reflect and form a new

criminal intent where a victim was stabbed multiple times. See Clinton, 970 So. 2d at 414 (Fla.

Dist. Ct. App. 2007). This Court has similarly recognized that “the Double Jeopardy Clause

prohibits the State from dividing a single criminal act into multiple counts of the same offense,”

and consistent with that principle, “multiple blows during one fight or attack usually constitute

only a single offense of battery.” State v. Fonseca-Cintron, 2019 VT 80, ¶ 19, 213 Vt. 11, 238

A.3d 594 (quotation and brackets omitted). We explained that “[i]n determining whether the

underlying conduct constituted one continuous action or multiple actions, we rely on the factors

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set forth in State v. Fuller, such as ‘the elapsed time between successive parts of the defendant’s

conduct’ and ‘whether the defendant’s conduct occurred in more than one geographical location.’ ”

Id. (quoting State v. Fuller, 168 Vt. 396, 400, 721 A.2d 475, 479 (1998)). “The critical inquiry is

whether the temporal and spatial separation between the acts supports a factual finding that the

defendant formed a separate intent to commit each criminal act.” Id. (quotation omitted); see also

Fuller, 168 Vt. at 400, 721 A.2d at 479 (explaining that “[i]n deciding whether an incident of sexual

assault consists of one continuous assault or separate acts, we consider several factors, including:

the elapsed time between successive parts of the defendant’s conduct; whether the defendant’s

conduct occurred in more than one geographic location; whether an intervening event occurred

between successive parts of the defendant’s conduct; whether there was sufficient time for

reflection between assaultive acts for the defendant to again commit himself”).

¶ 18. The Fuller court considered whether a defendant’s sexual assaults on a child

constituted two separate acts. It concluded that while the defendant’s conduct in two different

rooms of the home were “close in time,” “[t]here was . . . an intervening event between the two

acts—[the child’s] escape from defendant and his flight from the bedroom into the living room”—

and “[m]ost importantly, [the] defendant had sufficient time between the commission of the two

acts to reflect upon what he was doing and to recommit himself to sexually assaulting the child

that had escaped.” Id. (citing Harrell v. State, 277 N.W.2d 462, 470 (Wis. Ct. App. 1979)

(concluding that, even more germane than time interval is fact defendant formed intent to again

assault victim and again applied force necessary to accomplish his purpose)).

¶ 19. Analogizing to the cases above and construing the statute narrowly as we must, we

conclude that the phrase “two or more acts over a period of time, however short,” 12 V.S.A.

§ 5131(1)(A), requires consideration of factors similar to those described in Fuller. We reach this

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conclusion mindful that given the common definition of “course of conduct” in civil and criminal

law, “any conduct that we hold warrants the imposition of a stalking order could also theoretically

subject a defendant to criminal sanctions, based not only on a violation of the stalking order but

on the underlying conduct itself.” Hinkson, 2020 VT 69, ¶¶ 29-30.

¶ 20. As a general matter, the question of whether there are “two or more acts” presents

a question of fact for the trial court to resolve, considering all of the circumstances. In this case,

however, we conclude, as a matter of law, that the evidence shows only a single continuing

incident. While the parties’ confrontation began in one area and continued into a different area,

there was no break in the conduct. Plaintiff testified, and the court found, that after striking

plaintiff, defendant followed him out of the work building to the parking lot. She continued to yell

at him while she followed him, and she then spit at him. We find it clear, as a matter of law, given

the sequence of events testified to by plaintiff, that the spitting and the striking were part of a single

escalating episode, not two sufficiently distinct events. Thus, because the evidence here is

insufficient to show “two or more acts over a period of time, however short,” we must reverse the

trial court’s decision. Given our conclusion, we do not reach any of defendant’s remaining

arguments.

Reversed.

FOR THE COURT:

Chief Justice

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