Summary
In Jackson, the defendant hacked into the plaintiff's Facebook account and posted videos and messages that the plaintiff characterized as " ‘trash’ and ‘slander.’ "
Summary of this case from Martin v. MartinOpinion
No. COA14–440.
2014-12-16
Elizabeth Ann JACKSON, Plaintiff, v. Reginald Laughton JACKSON, Defendant.
No brief for Plaintiff.Stam & Danchi, PLLC, by Lisa M. Schreiner, for Defendant.
Appeal by Defendant from order entered 12 December 2013 by Judge David Q. LaBarre in Durham County District Court. Heard in the Court of Appeals 6 October 2014. No brief for Plaintiff. Stam & Danchi, PLLC, by Lisa M. Schreiner, for Defendant.
STEPHENS, Judge.
Defendant Reginald Laughton Jackson appeals from a domestic violence order of protection (“DVPO”) entered against him. Because there is no competent evidence to support the trial court's findings of fact that Defendant placed his estranged wife Plaintiff Elizabeth Ann Jackson in fear of imminent serious bodily injury and continued harassment that rises to such a level as to inflict substantial emotional distress, we hold that the trial court erred in its conclusion of law that an act of domestic violence occurred. Accordingly, we vacate the DVPO.
Facts and Procedural History
On 6 November 2013, Plaintiff filed a complaint and motion for DVPO against Defendant, alleging:
Before separating from [Defendant], there was ongoing verbal, emotional, and physical abuse ultimately leading to a threat on my life. At that time I filed a police report in Morrisville.... I moved out and we filed for legal separation. [Defendant] has continued to harrass [sic] me via text, phone calls, email. He has monitored my computer and knows every move I make. On 11/3/2013 he hacked into my computer, changed passwords, and posted trash [and] slander on my [Facebook] page. He also showed up at my apartment twice uninvited.
An ex parte DVPO was entered that same day and, after the matter was twice continued and Defendant filed an answer and motion to vacate the order, a return hearing was held on 12 December 2013. Following the hearing, the trial court entered an order continuing Plaintiff's DVPO against Defendant for one year based on its findings of fact that on 3 November 2013, Defendant
placed [Plaintiff] in fear of imminent serious bodily injury [and]
placed [Plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress
...
by ...
[a]s per complaint which [the court] finds credible and adopts as its findings—including his threat to kill her.
Given those findings, the trial court concluded that “[t]he defendant has committed acts of domestic violence against the plaintiff” and “[t]here is a danger of serious and immediate injury to the plaintiff.”
The evidence introduced at the 12 December 2013 hearing tended to show that Plaintiff and Defendant were married on 12 May 2012, but had been legally separated since April 2013. Plaintiff characterized their marriage as “a very volatile relationship” for which both parties bore the blame; by December 2012 they were sleeping in separate bedrooms.
Regarding the threat on her life referenced in the complaint, Plaintiff testified that it came during an argument in February 2013, when Defendant “was trying to break into my bedroom door and he said, ‘opening [sic] the door, you f-ing b. I'm going to f-ing kill you.’ “ Plaintiff testified she had been concerned Defendant might carry out his threat, but explained that although she filed a police report she opted not to press charges at that time, as she was already making plans to leave. Apart from that incident, Plaintiff did not provide any other specific examples of threats or abuse during the marriage, although she did testify that Defendant “has put his hands on me before. He's grabbed me and thrown me on the bed.”
Defendant also testified at the hearing, and although he admitted the February 2013 incident did occur, he contended that Plaintiff had provoked him, first by saying “I have many men in my life and I could ‘f’ them tomorrow, if I wanted. In fact, I'm going to ‘f’ them all,” and then by scratching his face hard enough to draw blood and send his glasses flying across the room. Defendant testified that he regretted uttering the words “Woman, I ought to kill you” after Plaintiff ran into a guest room and locked the door, that he did not mean those words as a threat, and that he would never harm Plaintiff. In his testimony and throughout his answer and motion to vacate the ex parte order, Defendant acknowledged the marriage had been a volatile one, but claimed that it was Plaintiff who was most often the aggressor and described multiple occasions when she had abused him physically, verbally, and emotionally. In one noteworthy incident that Defendant filmed using his cell phone on 25 December 2012, Plaintiff became enraged, grabbed a pair of scissors, and began to cut up her wedding dress. Defendant admitted there were “one or two occasions” when he struck back in defense against attacks by Plaintiff and explained that he and his neighbors had made multiple 911 calls as a result of Plaintiff's physical abuse during the marriage.
The parties legally separated in April 2013, but made attempts at reconciliation throughout July and August of 2013. After Defendant completed a six-week anger management class through his employer, they attended couples' counseling and church together, communicated frequently by exchanging hundreds of friendly emails and text messages, and went on multiple dates. Plaintiff testified that she did not feel any concern for her safety during that time and also did not express any fear of danger from Defendant to their marriage counselor. By late September, however, the parties had a falling out and ended their attempts to reconcile. Plaintiff changed her telephone number to avoid further contact with Defendant, who admitted to calling her and sending a series of text messages to her new number in a last attempt to reconcile on 30 October 2013. Plaintiff testified that she asked Defendant not to contact her again and blocked him from her phone.
As for the event that instigated these proceedings, Plaintiff testified that, on 3 November 2013, she discovered Defendant had hacked into her Facebook account and posted the video from his phone of her cutting up her wedding dress, along with several messages about Plaintiff that she characterized as “trash” and “slander.” Plaintiff testified that she first learned of these postings from her daughter, and that when she logged on to delete them, her password had been changed and she was unable to access her account until contacting Facebook and then answering a series of security questions. Defendant is employed as a computer programmer, but he repeatedly denied Plaintiff's allegations and testified that he had never received any professional or educational training that would enable him to hack into a social network. Instead, he testified that the video might have come from another source, because he had sent it to one of Plaintiff's friends during their marriage, and that the wording of messages could have been “drawn from the many emails that went back and forth between us because I have expressed those—those feelings before in emails to her.” However, Plaintiff testified that Defendant had previously spied on her online activity, citing past instances when he placed a keylogger on her computer and admitted to paying someone else to retrieve chats, emails, and other communications from her computer.
The record does not include the actual Facebook posting, and the transcript of the December 2013 hearing does not fully describe the messages that were posted due to a courtroom recording malfunction.
During the hearing, the trial court inquired how the Facebook-hacking incident had affected Plaintiff:
[THE COURT]: Do you feel or believe that you've suffered, quote, substantial emotional distress, ma‘am? And when I say substantial, I don't mean mere annoyance. I mean substantial emotional distress. Have you sought any counseling or anything because of all of this?
[Plaintiff]: No sir.
Plaintiff also alleged that Defendant had violated the ex parte order by sending her two emails on December second and third; however, the police report Plaintiff produced for the trial court did not indicate whether any violation had occurred. Defendant admitted the emails in question were from him but claimed he had sent them months earlier, long before the ex parte order was entered.
At the close of the hearing, the trial court entered an order continuing Plaintiff's DVPO against Defendant for one year. After expressing skepticism regarding Defendant's denial of having hacked into Plaintiff's Facebook account, the trial court explained that Plaintiff had “met her burden for two reasons. One is the threat that [Defendant] made while he was trying to knock down a door, called her an f-ing bitch and that he wanted to kill her.... And [Defendant's] continued contacts after being requested not to do so I think satisfies her burden.” Defendant gave timely written notice of appeal.
As a side matter to this appeal, we note that the DVPO in this case expired on 12 December 2014. While as a general rule, “an appeal should be dismissed as moot when events occur during the pendency of the appeal which cause the underlying controversy to cease to exist,” this Court has repeatedly recognized that a defendant's appeal of an expired DVPO “has continued legal significance and is not moot” due to the collateral legal consequences that result from such an order. Smith ex rel. Smith v. Smith, 145 N.C.App. 434, 436–37, 549 S.E.2d 912, 914 (2001).
Standard of Review
Under North Carolina law, it is well established that
[w]hen the trial court sits without a jury regarding a DVPO, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts. Where there is competent evidence to support the trial court's findings of fact, those findings are binding on appeal.
Kennedy v. Morgan, ––– N.C.App. ––––, ––––, 726 S.E.2d 193, 195 (2012) (citation omitted). Furthermore, as this Court has previously recognized,
[w]here the trial court sits as the finder of fact, and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial court. This Court can only read the record and, of course, the written word must stand on its own. But the trial judge is present for the full sensual effect of the spoken word, with the nuances of meaning revealed in pitch, mimicry and gestures, appearances and postures, shrillness and stridency, calmness and composure, all of which add to or detract from the force of spoken words. The trial court's findings turn in large part on the credibility of the witnesses, and must be given great deference by this Court.
Brandon v. Brandon, 132 N.C.App. 646, 651–52, 513 S.E.2d 589, 593 (1999) (internal citations, quotation marks, and brackets omitted).
Fear of Imminent Serious Bodily Injury
Defendant first argues that the trial court erred in finding that he placed Plaintiff in fear of imminent serious bodily injury on 3 November 2013. We agree.
To support entry of a DVPO, the trial court must make a conclusion of law “that an act of domestic violence has occurred.” Kennedy, ––– N.C.App. at ––––, 726 S.E.2d at 196 (quoting N.C. Gen.Stat. § 50B–3). Our General Statutes define domestic violence as
the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:
(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or
(2) Placing the aggrieved party or a member of the aggrieved party's family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14277.3A, that rises to such a level as to inflict substantial emotional distress; or
(3) Committing any act defined in G.S. 1427.2 through G.S. 14–27 .7.
N.C. Gen.Stat. § 50B–1(a) (2013). “The test for whether the aggrieved party has been placed in fear of imminent serious bodily injury is subjective; thus, the trial court must find as fact the aggrieved party actually feared imminent serious bodily injury.” Smith ex rel. Smith v. Smith, 145 N.C.App. 434, 437, 549 S.E.2d 912, 914 (2001) (citation and internal quotation marks omitted).
In the present case, Defendant contends that the trial court's finding of fact that he placed Plaintiff in fear of imminent serious bodily injury on 3 November 2013 was not supported by competent evidence. Specifically, he contends that the posting on Plaintiff's Facebook page—for which he denies responsibility—contained nothing that can be construed as a threat, and that the paragraph from Plaintiff's complaint that the trial court expressly adopted as the basis for its findings provides merely a nonspecific narrative of the parties' relationship. In support of his argument, Defendant cites this Court's prior decision in Kennedy that a “vague finding of a general ‘history of abuse’ is not a finding of an ‘act of domestic violence.’ “ ––– N.C.App. at ––––, 726 S.E.2d at 196. Defendant's argument has merit.
In Kennedy, the plaintiff obtained a DVPO against her ex-husband after he hired a private investigative service to monitor whether she was co-habiting with another man, which would have allowed him to terminate his alimony payments. Id. at ––––, 726 S.E.2d at 194. However, the only basis the trial court provided for finding that an act of domestic violence had occurred was the long history of abuse that Plaintiff had previously suffered during the parties' marriage. Id. at ––––, 726 S.E.2d at 195. In vacating the DVPO, this Court recognized that it is the specific event that gives rise to the Plaintiff's complaint, rather than the history between the parties, that serves as the proper measuring point by which a trial court should determine whether an act of domestic violence has occurred. Id. at ––––, 726 S.E.2d at 196. As we explained,
it is clear that [the] defendant's recent act of hiring a PI service, and not the ‘history of abuse’ was the basis for the trial court's decision to enter the DVPO, as this was the only ‘act of domestic violence’ found. Although we appreciate that a ‘history of abuse’ may at times be quite relevant to the trial court's determination as to whether a recent act constitutes ‘domestic violence,’ a vague finding of a general ‘history of abuse’ is not a finding of an ‘act of domestic violence’ as defined by N.C. Gen.Stat. § 50B–3(a).
Id. Similarly here, although Defendant's February 2013 threat against Plaintiff's life provides more specific detail than the general history of abuse in Kennedy, the proper reference point for determining whether an act of domestic violence had occurred to support entry of a DVPO was the Defendant's alleged hacking into Plaintiff's Facebook account on 3 November 2013. While the record does not contain a complete account of what Defendant allegedly posted on Plaintiff's Facebook page, nothing in the transcript from the 12 December 2013 hearing indicates that any sort of threat was made, nor did Plaintiff testify at any point that having her account hacked placed her in fear of imminent serious bodily injury. Moreover, Plaintiff admitted that during the parties' attempted reconciliation in the months of July and August 2013, she did not feel any concern for her safety and also did not express any fear of danger from Defendant to their marriage counselor. Further, while Defendant's February 2013 threat may well have provided an adequate basis to support a DVPO had Plaintiff sought one at that time, our Supreme Court has previously held that “imminent” means “that there will be no significant delay.” Dickens v. Puryear, 302 N .C. 437, 445–46, 276 S.E.2d 325, 331 (1981). In light of the parties' intervening attempts at reconciliation and the absence of testimony that Plaintiff actually felt threatened by Defendant's alleged acts nine months later, it is difficult to discern how Defendant's February 2013 threat remained “imminent.”
See supra note 1.
The trial court was not wholly misguided to accord some relevance to Defendant's February 2013 threat against Plaintiff in determining whether Defendant committed a more recent act of domestic violence. See Kennedy, –––N.C.App. at ––––, 726 S.E.2d at 196. However, the trial court's order and its statement at the end of the hearing make clear that Defendant's February 2013 threat was the primary basis for entry of the DVPO. But, as our decision in Kennedy indicates, the relevance of Defendant's February 2013 threat diminished as its remoteness grew, and it was no longer “imminent” in November. Therefore, given the lack of any competent evidence that Plaintiff felt physically threatened by Defendant's more recent act of hacking into her Facebook account, we conclude that the trial court erred in its finding of fact that Defendant placed Plaintiff in fear of imminent serious bodily injury on 3 November 2013.
Fear of Continuing Harassment Inflicting Substantial Emotional Distress
Defendant next argues that the trial court erred in finding that he placed Plaintiff in fear of continued harassment that rises to such a level as to inflict substantial emotional distress. Specifically, Defendant contends that this finding of fact is completely unsupported by the evidence and is directly controverted by Plaintiff's own testimony. We agree.
To support the trial court's finding of fact that Defendant “placed [Plaintiff] in fear of continued harassment that rises to such a level as to inflict substantial emotional distress,” there must be competent evidence not only that Defendant harassed Plaintiff, but also that in doing so, he caused her to suffer substantial emotional distress. See id. at ––––, 726 S.E.2d at 197. Chapter 50B does not define “harassment” but section 50B–1(a)(2) refers to N.C. Gen.Stat. § 14–277.3A for the definition, which in turn defines the term as “[k]nowing conduct ... directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.” N.C. Gen.Stat. § 14–277.3A(b)(2) (2013). The same statute defines “substantial emotional distress” as “[s]ignificant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.” N.C. Gen.Stat. § 14–277.3A(b)(4). This Court has previously recognized that, like the fear of imminent serious bodily harm, “[t]he plain language of the statute requires the trial court to apply only a subjective test to determine if the aggrieved party was in actual fear; no inquiry is made as to whether such fear was objectively reasonable under the circumstances.” Wornstaff v. Wornstaff, 179 N.C.App. 516, 518–19, 634 S.E.2d 567, 569 (2006), affirmed per curiam, 361 N.C. 230, 641 S.E.2d 301 (2007).
We note that our decision in Wornstaff drew a dissent and reached our Supreme Court pursuant to N.C. Gen.Stat. § 7A30(2). On appeal there, three members of the Court voted to affirm, three voted to reverse, and one was recused, thus leaving this Court's holding “undisturbed and stand[ing] without precedential value.” 361 N.C. 230, 641 S.E.2d 301. Nevertheless, we find the reasoning behind the language quoted above from our Wornstaff majority opinion persuasive and further note that the dissenting opinion in that case likewise agreed that the statute's plain language imposes a subjective test. See 179 N.C.App. at 522, 634 S.E.2d at 571 (Tyson, J., dissenting).
Turning first to the issue of harassment, as we explained in Kennedy, “to support a conclusion of law that an act of domestic violence has occurred due to harassment ... there must also be evidence and findings of fact that [D]efendant's acts (1) were knowing, (2) were directed at [Plaintiff], (3) tormented, terrorized, or terrified [Plaintiff], and (4) served no legitimate purpose.” ––– N.C.App. at ––––, 726 S.E.2d at 195–96 (citation and internal quotation marks omitted). Here, there does appear to be competent evidence to support a finding that Defendant harassed Plaintiff. Although Defendant denied hacking into Plaintiff's Facebook account, credibility determinations are the province of the trial court. See Brandon, 132 N.C.App. at 651–52, 513 S.E.2d at 593. Given Defendant's background in computer programming, Plaintiff's testimony about her suspicions that he had previously monitored her computer activity, and Defendant's acknowledgement that the messages posted with the video paralleled his prior emails and complaints about his relationship with Plaintiff, we conclude there was competent evidence to satisfy the first prong of the four-prong analysis articulated in Kennedy. The second prong is easily satisfied because the video and messages were posted to Plaintiff's Facebook account and directly referred to Plaintiff. As for the third prong, while the statute does not define the terms “torment,” “terrorize,” or “terrify,” this Court has previously construed them according to their plain meanings, recognizing that “torment is defined as to annoy, pester, or harass” while “terrorize is defined as to fill or overpower with terror; terrify.” State v. Watson, 169 N.C.App. 331, 337, 610 S.E.2d 472, 477 (2005) (citation, internal quotation marks, and brackets omitted). Here, we can infer from the actions Plaintiff took to delete from her Facebook account the video and accompanying messages that she considered to be “trash” and “slander” that she was at the very least pestered or annoyed, thus satisfying the third prong. Finally, the fourth prong is satisfied because, unlike the reason for hiring a private investigator to conduct surveillance in Kennedy, no legitimate purpose for hacking into an ex-romantic partner's social media profile is apparent in this case.
However, Defendant insists that the DVPO should still be vacated because, even assuming arguendo his alleged Facebook-hacking constituted harassment, there is no competent evidence that it caused Plaintiff to suffer substantial emotional distress as required by section 50B–1(a)(2). In support of this argument, Defendant highlights the fact that Plaintiff answered in the negative when the trial court inquired
[THE COURT]: Do you feel or believe that you've suffered, quote, substantial emotional distress, ma‘am? And when I say substantial, I don't mean mere annoyance. I mean substantial emotional distress. Have you sought any counseling or anything because of all of this?
[Plaintiff]: No sir.
We note first that Plaintiff's answer is not necessarily definitive proof that she did not suffer substantial emotional distress, as she may have been answering only the second half of the compound question posed by the trial court. Although section 14–277 .3A(b)(4) lists the need for “medical or other professional treatment or counseling” as one way to show substantial emotional distress, the statute's plain language makes clear that these are not prerequisites. See N.C. Gen.Stat. § 14–277.3A(b)(4). Nevertheless, Defendant is correct that this testimony does not support a finding that his conduct inflicted substantial emotional distress on Plaintiff. Furthermore, we conclude after a careful review of the record that there is no other competent evidence to support such a finding.
While it is conceivable that a reasonable person might experience “substantial mental suffering” upon discovering his or her Facebook account was hacked into, the plain language of the statute calls for a subjective inquiry, and at no point during the 12 December 2013 hearing did Plaintiff testify that she suffered any, much less, substantial emotional distress from the Facebook incident. See Wornstaff, 179 N.C.App. at 518–19, 634 S.E.2d at 569. Plaintiff did testify that she suspected Defendant had previously monitored her online activities during their marriage and that she believed he might continue to do so. However, this Court's prior cases have recognized that a plaintiff's fear or apprehension concerning a defendant's conduct is not sufficient, standing alone, to warrant a finding that she has suffered substantial emotional distress. See Kennedy, ––– N.C.App. at ––––, 726 S.E.2d at 197 (explaining that “the fact that [the] plaintiff may have been afraid or apprehensive because of [the] defendant's actions does not necessarily support a determination of domestic violence”) (citation and internal quotation marks omitted); see also, e.g., Fairbrother v. Mann, ––– N.C.App. ––––, 738 S.E.2d 454 (2013) available at 2013 WL 601104 (vacating DVPO despite the plaintiff's testimony that she feared for her daughters' safety because she did not present any competent evidence of her own substantial emotional distress as defined in the statute). Similarly here, because there was no evidence introduced showing that Defendant's alleged online spying subjectively caused Plaintiff to suffer substantial emotional distress, standing alone it is not sufficient to sustain a conclusion that an act of domestic violence has occurred as defined in section 50B–1(a). Likewise, Plaintiff's testimony that the messages accompanying the video posted to her Facebook profile were “trash” and “slander” is not sufficient to support a finding that she subjectively suffered substantial emotional distress, especially given her testimony that she was able to delete those postings with relatively little difficulty after contacting Facebook and answering a series of security questions to change her password.
Although Rule 30(e)(3) of our Rules of Appellate Procedure holds that this Court's unpublished decisions do not constitute controlling legal authority, we find this case persuasive and consistent with the precedent established by our decision in Kennedy.
Finally, we note that the trial court's additional findings of fact provide no further evidence of substantial emotional distress. Indeed, as noted above, those findings revolved almost entirely around Defendant's February 2013 threat against Plaintiff's life, which for reasons already explained was not sufficient by itself to sustain the DVPO entered. While the trial court did opine at the close of the 12 December 2013 hearing that in addition to the February 2013 threat, Defendant's “continued contacts after being requested not to do so I think satisfies her burden,” it is not immediately clear from the transcript exactly which contacts the court was referencing. Although Plaintiff did allege at the hearing that Defendant had violated the ex parte order by sending her two emails in December, the trial court stated that the police report Plaintiff provided did not indicate whether any violation had occurred, and there is nothing else in the record to support a finding that Defendant's unwanted contacts with Plaintiff were sufficient, standing alone, to show she suffered substantial emotional distress.
In sum, because there was no competent evidence that Plaintiff suffered substantial emotional distress as a result of Defendant's alleged Facebook hacking, we conclude that the trial court erred in finding as a fact that Defendant placed Plaintiff in fear of continuing harassment that rises to such a level as to inflict substantial emotional distress. Moreover, given our prior conclusion that the trial court also erred in finding as a fact that Defendant placed Plaintiff in fear of imminent serious bodily injury, we further conclude that the trial court erred in occurred. Accordingly, the 12 December 2013 DVPO entered by the trial court against Defendant is
VACATED. Chief Judge MCGEE and Judge DIETZ concur.
Report per Rule 30(e).