Continuance Discretion and Evidentiary Sufficiency in Civil Stalking Protective Orders Under RSA 633:3-a

1. Introduction

These consolidated appeals arose from two civil stalking final orders of protection entered by the Circuit Court (Lombardi, J.) under RSA 633:3-a (Supp. 2025). The plaintiffs, C.A. and D.W., are a couple who live together; the defendant, D.N., is their neighbor.

The petitions alleged a short but escalating series of confrontations and property-related acts—placing trash under a windshield wiper, throwing blueberries, blocking the plaintiffs’ egress, taunting and challenging to fight, disabling a doorbell camera with tape, leaving cigarette butts on the porch, prolonged verbal abuse, spitting in D.W.’s direction, and a threat to “slap” C.A. C.A. additionally alleged prior threats while walking her dog.

On appeal, D.N. (self-represented at the final hearing) raised two principal issues: (1) whether the trial court erred by denying his second request to continue the final hearing so he could retain counsel; and (2) whether the evidence was insufficient to prove stalking as to either plaintiff.

2. Summary of the Opinion

The Supreme Court affirmed both final stalking orders of protection. It held that the trial court did not unsustainably exercise its discretion in denying a second continuance request made on the eve of the hearing, particularly where one continuance had already been granted, the defendant had more than a month from the petition filing to seek counsel, and one plaintiff (D.W.) lacked a temporary order.

The Court further held that the evidence—testimony, video exhibits, and the defendant’s own admissions about confronting the plaintiffs—supported findings that D.N. purposely engaged in a targeted “course of conduct” that would cause a reasonable person to fear for personal safety, and that the plaintiffs were actually placed in such fear, satisfying RSA 633:3-a, I(a).

The Court also rejected or declined to reach several arguments on preservation/waiver grounds, including constitutional claims about the need for counsel, and objections to the procedure by which D.W. adopted his petition as testimony.

3. Analysis

3.1 Precedents Cited

• In the Matter of Kempton & Kempton, 167 N.H. 785, 793 (2015)
  

  This case supplied the controlling standard for continuances: the decision to grant or deny is “within the sound discretion of the trial court,” and appellate review asks whether denial was an “unsustainable exercise of discretion.” The Court used Kempton both as the standard of review and as the framework for evaluating the timing of the request (made the day before the hearing), prior continuance history, and party prejudice.

• Sheedy v. Merrimack Cty. Super. Ct., 128 N.H. 51, 56 (1986)
  

  The defendant argued that because the plaintiffs had counsel and the issues were complex, he effectively needed counsel. The Court invoked Sheedy by analogy (“Cf.”) to rebut the notion that the mere presence of counsel on one side or generalized complexity compels counsel assistance in a civil setting. Sheedy stands for the proposition that appointment (or necessity) of counsel is not automatic absent demonstrated complexity and incapacity.

• State v. Winstead, 150 N.H. 244, 246 (2003)
  

  Winstead anchored the Court’s preservation doctrine: issues not raised in the trial court are not preserved for appellate review. The Court used it repeatedly to dispose of constitutional and procedural complaints (e.g., claims about a constitutional right to counsel in this civil protective-order hearing, and objections to D.W.’s adoption of his petition statements and cross-examination opportunity).

• In the Matter of Birmingham & Birmingham, 154 N.H. 51, 56 (2006)
  

  Cited to reinforce that self-represented litigants are bound by the same procedural rules as represented parties—particularly preservation requirements. This served to foreclose any implicit argument that pro se status excused the failure to make timely objections or raise constitutional theories below.

• S.C. v. G.C., 175 N.H. 158, 162 (2022)
  

  This precedent governed sufficiency review in civil protective-order contexts: appellate courts uphold findings unless they lack evidentiary support or are tainted by legal error, defer to credibility determinations, and view evidence in the light most favorable to the prevailing party. The Court’s application of S.C. is central: it framed the lens through which the Court evaluated the parties’ sharply different narratives and the defendant’s “rational explanations.”

• State v. Blackmer, 149 N.H. 47, 49 (2003)
  

  This case supplied the waiver rule for appellate briefing: issues mentioned in a notice of appeal but not briefed are deemed waived. The Court used Blackmer to dispose of any unbriefed issues lingering from the notice of appeal.

3.2 Legal Reasoning

A. Denial of a Second Continuance (Discretion; Timing; Competing Interests)

The Court treated the continuance issue as a classic discretionary call. Several facts drove the outcome:

• The hearing had already been continued once at the defendant’s request (over C.A.’s objection).
• The second request arrived one day before the rescheduled hearing and sought “a minimum” of two additional months.
• The petitions had been filed July 15, and the final hearing occurred August 27—giving the defendant weeks to pursue counsel.
• Critically, the Court credited the trial court’s attention to the plaintiffs’ protection interests: C.A. wanted finality due to distress, and D.W. had no temporary order in place, making further delay more consequential.

Against this backdrop, the Court held it was not “clearly unreasonable” to deny the second continuance. Notably, the Court rejected the defendant’s claim that no plaintiff prejudice would result because C.A.’s temporary order would remain; the Court emphasized that D.W. had no temporary order, and, in any event, the decision remained discretionary.

B. Sufficiency of Evidence Under RSA 633:3-a (Course of Conduct; Reasonable Fear; Actual Fear)

The Court’s sufficiency analysis tracked the statutory elements:

Viewing the evidence in the plaintiffs’ favor (per S.C. v. G.C.), the Court found ample proof of a targeted pattern: placing trash on a vehicle; throwing blueberries; blocking the roadway and taunting; disabling the security camera; leaving cigarette butts; and an extended verbal assault including threats and aggressive approach/spitting. Video evidence was played “without objection,” strengthening the evidentiary foundation and insulating the findings from claims that testimony was “disjointed.”

On “actual fear,” the Court pointed to C.A.’s testimony that she “was shaking” during the assault and that the temporary order made her feel “more at ease,” lowering her stress. For D.W., the Court relied on his sworn adoption of his petition allegations (including that the conduct caused him to “fear for [his] safety”). Challenges to that adoption procedure and to cross-examination opportunity were not preserved and therefore did not undermine the sufficiency holding.

C. Preservation and the Limits of Appellate Review

A substantial portion of the opinion is procedural: the Court repeatedly refused to address arguments not raised below (State v. Winstead), reminding that pro se status does not relax procedural rules (In the Matter of Birmingham & Birmingham), and that unbriefed issues are waived (State v. Blackmer). This functions as a practical directive in civil protective-order litigation: objections to hearing procedures, constitutional theories, and evidentiary scope must be timely made and adequately developed in the trial court to be reviewable.

3.3 Impact

• Continuances in expedited protective-order settings: The decision underscores that last-minute continuance requests—especially second requests after an earlier continuance—face steep odds where the respondent had time to seek counsel and the protected parties seek immediate relief. The Court’s express attention to the absence of a temporary order for one petitioner (D.W.) highlights that “prejudice” is evaluated petitioner-by-petitioner, not globally.
• Proof of stalking can be built from short-duration escalation: By emphasizing “over a period of time, however short” and crediting a compact sequence of acts (property interference + confronting/taunting + disabling a camera + threats), the opinion signals that a stalking “course of conduct” may be established rapidly when the acts show continuity of purpose and escalate toward intimidation.
• Actual fear evidence may be modest but concrete: The Court accepted physiological/emotional reaction testimony (“shaking,” reduced stress after protection) and adoption of sworn petition allegations as supporting “actual fear.” Future litigants should expect trial courts to look for at least some direct indicator of fear (testimony, demeanor, contemporaneous statements, or sworn pleadings).
• Procedural rigor for self-represented respondents: The repeated preservation holdings reinforce that appellate courts will not retrofit constitutional or procedural claims that were not raised at the hearing, even where a respondent proceeds pro se.
• Video evidence as a stabilizing feature: The presence of unobjected-to video reduced the force of arguments about disjointed testimony and bolstered deference to the trial court’s factfinding.

4. Complex Concepts Simplified

• “Unsustainable exercise of discretion”: A highly deferential appellate standard. The question is not whether the appellate court would have granted the continuance, but whether the trial court’s denial was clearly unreasonable given the circumstances.
• “Course of conduct” (RSA 633:3-a): At least two acts, over any amount of time (even a few days), that show a continuing purpose directed at the same person—often shown by repeated confrontations, threats, or property interference.
• “Reasonable person” fear vs. “actually placed” fear: Stalking requires both (1) conduct that would make an objective reasonable person fear for safety, and (2) proof the specific victim did fear. Courts often infer fear from testimony, behavior, and context, but some direct evidence is typically needed.
• “Preservation”: To argue an issue on appeal, a party generally must have raised it in the trial court at a time the judge could address it (e.g., objecting to procedure, requesting a ruling, making a record).
• “Waiver” for lack of briefing: Even if an issue is mentioned in the notice of appeal, it can be lost if not argued in the appellate brief.
• Temporary vs. final protective orders: A temporary order offers interim protection until the final hearing. If one petitioner lacks a temporary order, delays can carry greater safety and peace-of-mind consequences for that petitioner.

5. Conclusion

The Supreme Court’s order affirms two civil stalking final orders and, in doing so, reinforces several practical rules: trial courts have broad discretion to deny eleventh-hour (and repeat) continuance requests; stalking under RSA 633:3-a can be proven through a short sequence of escalating, targeted acts that demonstrate continuity of purpose; and appellate review of sufficiency is deferential to trial-level credibility determinations and supported by corroborative evidence such as video.

Equally significant is the opinion’s procedural message: constitutional and procedural complaints must be preserved in the trial court, and self-represented litigants remain bound by the same preservation and briefing requirements as represented parties. In the broader civil-protection landscape, the decision supports timely adjudication of neighbor-conflict stalking petitions while clarifying the evidentiary and procedural pathways most likely to control the outcome on appeal.