Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2012-260

                                      FEBURARY TERM, 2013

 Kashka Orlow                                          }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Civil Division
                                                       }
                                                       }
 Erika Dinkel                                          }    DOCKET NO. S0025-12 Cnsa

                                                            Trial Judge: Geoffrey W. Crawford

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

       Defendant appeals a stalking-prevention order issued by the civil division of the superior
court. We affirm.

       Plaintiff sought a stalking-prevention order against defendant, who lived in the same
apartment building as her, based on a series of incidents that occurred between the parties.
Following a hearing, the superior court imposed the order for a period of six months, requiring
defendant to stay away from plaintiff and her children. Defendant appeals, raising four issues.

        First, defendant argues that the court erred in concluding that she stalked plaintiff insofar
as her actions did not demonstrate a course of conduct or continuity of purpose. She asserts that
neither the court’s written order nor its oral findings at the hearing establish a course of conduct
sufficient to satisfy the stalking statute. She further states that the one incident of actual contact
cannot satisfy the statutory definition of stalking because it was initiated by plaintiff.

       Under 12 V.S.A. § 5133(b), a person seeking an order against stalking “ha[s] the burden
of proving by a preponderance of the evidence that the defendant stalked . . . the plaintiff.”
Stalking is defined as a

                course of conduct which consists of following or lying in wait for a
                person, or threatening behavior directed at a specific person or a
                member of the person’s family, and: (A) serves no legitimate
                purpose; and (B) would cause a reasonable person to fear for his or
                her safety or would cause a reasonable person substantial
                emotional distress.

Id. § 5131(6). “Course of conduct” is defined as “a pattern of conduct of two or more acts over a
period of time, however short, evidencing a continuity of purpose.” Id. § 5131(1). “Threatening
behavior” is defined as “acts which would cause a reasonable person to fear unlawful sexual
conduct, unlawful restraint, bodily injury, or death, including verbal threats, written, telephonic,
or other electronically communicated threats, vandalism, or physical contact without consent.”
Id. § 5131(8).
         In this case, at the hearing, plaintiff describes a number of incidents in which defendant
dumped cigarette butts outside her apartment and on her car, verbally abused her and her
children, threatened her life, and struck her on one occasion. Plaintiff testified that defendant
engaged in this conduct in retaliation for plaintiff refusing to associate with defendant anymore
because of defendant’s drug use. The incidents described by plaintiff at the hearing, which the
court explicitly found to be credible, were sufficient to satisfy the statutory definition of stalking
set forth above. Moreover, the court’s oral findings on the record are sufficient to support its
order based on that statute. The court checked the box on the order form indicating that
defendant had engaged in threatening behavior—including verbal threats—that would cause a
reasonable person to fear bodily injury. As noted, at the conclusion of the hearing, the court
noted, and found credible, plaintiff’s testimony that plaintiff had engaged in threatening and
intimidating behavior against her and her children on several occasions—including threatening
to kill her and striking her. Defendant’s claim of insufficient findings is unavailing.

        Second, defendant argues that although the court found that she assaulted plaintiff, an
assault is not sufficient to satisfy the definition of stalking, particularly when, as here, plaintiff
initiated the contact with defendant shortly before the assault. We find this argument unavailing.
The assault was only one of several incidents described by plaintiff and found to be credible by
the court. Further, the fact that plaintiff initially approached defendant in the particular incident
resulting in defendant’s assault of plaintiff does not demonstrate that defendant did not stalk
plaintiff.

        Third, defendant reiterates that when the assault occurred, plaintiff was in violation of a
valid no-trespass order. Even if we assume that plaintiff was in violation of a no-trespass order
during the incident when defendant assaulted plaintiff, this would not demonstrate that defendant
did not stalk plaintiff, given the overall evidence of the incidents described by plaintiff and found
credible by the court.

        Finally, noting the court’s acknowledgement of some mutuality in the conflict between
the parties, defendant argues that a mutual dispute cannot amount to stalking. The fact that the
court recognized that this conflict—like most if not all conflicts—involves two sides does not
undermine its conclusion, which is supported by the evidence, that defendant engaged in a course
of threatening conduct that supported the stalking-prevention order.

       Affirmed.

                                                  BY THE COURT:


                                                  _______________________________________
                                                  Paul L. Reiber, Chief Justice

                                                  _______________________________________
                                                  John A. Dooley, Associate Justice

                                                  _______________________________________
                                                  Brian L. Burgess, Associate Justice




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