Morton v. Young

298 A.3d 230

Ava MORTON

v.Mayah YOUNG

No. 22-AP-199

Supreme Court of Vermont.

March Term, 2023

May 19, 2023

Michelle Donnelly, Jaeden Spitale, Legal Intern, and Chester Harper, Fellow, South Royalton Legal Clinic, South Royalton, for Plaintiff-Appellant.

Mayah Young, Pro Se, White River Junction, Defendant-Appellee.

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

WAPLES, J.

¶ 1. Plaintiff Ava Morton appeals the denial of her complaint for an order against stalking. We conclude that defendant's conduct did not fall within the statutory definition of stalking and therefore affirm the decision below.

¶ 2. In May 2022, plaintiff's mother filed a complaint on behalf of plaintiff, who was then seventeen years old, seeking an anti-stalking order against defendant Mayah Young. The affidavit attached to the complaint alleged that in April 2022, defendant had posted a video on the social media platform TikTok that included a half-naked picture of plaintiff. Plaintiff's mother called the police, who went to defendant's home, directed her to delete plaintiff's picture from her phone, and warned her that she could end up in a lot of trouble because plaintiff was a minor. The complaint alleged that afterward, defendant posted another video in which she threatened to hurt plaintiff, followed by two more videos in which she suggested that she still had the picture and might send it to others.

¶ 3. The civil division declined to issue a temporary order, concluding that the alleged conduct did not fall within the definition of stalking. Plaintiff notified the court of her intent to pursue the complaint, and the court set the matter for a final hearing in May 2022. See V.R.C.P. 80.10 (setting forth procedure for actions for orders against stalking). Plaintiff was represented by counsel and defendant appeared pro se. Plaintiff, defendant, and defendant's foster parent testified at the hearing.

¶ 4. Plaintiff testified that she and defendant used to be best friends. Plaintiff testified that in mid-April 2022, defendant posted a picture of plaintiff on TikTok in which it was clear that plaintiff was not wearing a shirt or bra, although her breasts were not visible. Defendant included a caption that mentioned plaintiff's username and stated, "don't send my man pics TO MY PHONE." Plaintiff testified that defendant was referring to plaintiff's ex-boyfriend, C.M., who had been using defendant's phone.¹ She testified that she had sent the photo privately to C.M. using Snapchat and did not expect it to be shared with others.

¶ 5. Plaintiff testified that defendant subsequently posted a TikTok video with a caption stating, "when he cheats on me and I don't pull up to the bitch$ house and dr@g her by the sc@lp cuz ik where she rests her head every night." The post also included the words "you'll be hearing me rev my car outside your house every night tho booo." Defendant then posted a second video in which she stated, "If you send nudes to a man with a girlfriend, expect that shit to get leaked. Expect that shit to get leaked. No shame on my end for leaking your shit." In the comments to the third video, defendant implied that she would send the image to others, including plaintiff's father.

¶ 6. Later, defendant posted a third video with a caption stating, "took cardio's advice and the b!tch called the cops. maybe keep your t!ts away and away from ppl in relationships. everything on the internet is permanent if you think I don't still have it and everyone else you're wrong bae." The post also stated, "cops couldn't do anything boo #homewrecker."

¶ 7. Plaintiff testified that these videos made her feel degraded and violated, and that she cried a lot when she saw that defendant had posted her picture online. She testified that she hadn't been eating and that she had anxiety about going to school or out in public because she was worried that defendant would do something to her or show up at her house. She also feared that defendant would share the photo with future employers.

¶ 8. Defendant then testified. She stated that after the police officer came to her house, plaintiff and two other friends had driven up defendant's driveway. She argued that this demonstrated that plaintiff was not actually scared of defendant. She also testified that the video in which she discussed going to a woman's house was not directed at plaintiff. She stated that her then-boyfriend had cheated on her with five different girls, and the video was a blanket statement to warn everyone off. Defendant's foster parent testified that she saw a car full of girls pull up to their home but could not identify them.

¶ 9. The trial court issued a written order in which it found that defendant's posts were directed at plaintiff and had caused plaintiff emotional stress, anxiety, embarrassment, and loss of appetite. However, the court found that only one of the posts—the video in which defendant stated that she would "pull up to the bitch$ house and dr@g her by the sc@lp"—threatened physical harm. The other posts, in which defendant indicated that she still had the nude image and might republish it to others, threatened emotional but not physical harm. Relying on this Court's decision in Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212, the court concluded that plaintiff had failed to meet her burden of showing that defendant engaged in a course of conduct constituting stalking, because the evidence demonstrated only one threat of physical harm. It therefore denied plaintiff's request for an order against stalking. This appeal followed.²

¶ 10. Plaintiff argues that the decision below should be reversed because defendant made two or more threats that caused her substantial emotional distress and therefore engaged in a course of conduct sufficient to constitute stalking under 12 V.S.A. § 5131. Whether the trial court correctly interpreted the statute is a question of law that we review de novo. See Hinkson, 2020 VT 69, ¶ 26, 213 Vt. 32, 239 A.3d 212 ("In considering this appeal, we interpret the stalking statute and review the court's legal conclusions without deference.").

¶ 11. Under the civil stalking statute, stalking is defined as "engag[ing] 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: (A) fear for his or her safety or the safety of a family member; or (B) suffer substantial emotional distress." 12 V.S.A. § 5131(6). " ‘Course 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."³ Id. § 5131(1)(A). This definition includes direct or indirect acts "by any action, method, device, or means," but does not include constitutionally protected activity. Id.

¶ 12. In Hinkson v. Stevens, a majority of this Court concluded that the term "threatens, or makes threats about" in § 5131(1) encompasses "only threats of physical harm." 2020 VT 69, ¶ 42, 213 Vt. 32, 239 A.3d 212. The majority reasoned that the statute expressly excludes constitutionally protected activity from the definition of "course of conduct." Id. ¶ 44. This meant that it could only apply to "true threats," which are " ‘those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,’ " and which are not protected by the First Amendment. Id. (quoting State v. Noll, 2018 VT 106, ¶ 24, 208 Vt. 474, 199 A.3d 1054 ). The majority found this construction to be consistent with prior case law interpreting the term "threat" in other contexts to mean "an expression of an intent to inflict harm, particularly physical harm, on another person." Id. ¶ 45 (discussing State v. Schenk, 2018 VT 45, ¶ 11, 207 Vt. 423, 190 A.3d 820, and State v. Johnstone, 2013 VT 57, ¶ 17, 194 Vt. 230, 75 A.3d 642 ). Finally, the majority reasoned that "to the extent that ‘threat’ can and has been interpreted to encompass threats of nonphysical harms," it was appropriate to resolve any ambiguity in favor of the defendant, which meant applying "the more limited definition of threat as a communicated intent to inflict physical harm on another person." Id. ¶ 46.

¶ 13. Hinkson plainly controls this case. The trial court found that only one of the videos defendant posted can be construed to imply a threat of violence to plaintiff. The others threatened reputational or emotional harm, but not physical harm. Accordingly, these threats—though demeaning and disturbing—could not support a finding that defendant stalked plaintiff within the meaning of the statute. See 12 V.S.A. § 5131(1) (requiring two or more acts of threatening to constitute stalking). Plaintiff does not challenge these findings, which support the court's decision to deny her complaint.

¶ 14. Instead, plaintiff urges us to reconsider Hinkson. She argues that a threat to disseminate nude photos, while not a "true threat" of physical harm, is also not a constitutionally protected activity and therefore can be restrained by the civil stalking statute. She contends that Hinkson’s narrow construction of the term "threatens, or make threats about" is inconsistent with the remedial purpose of the statute. She further argues that the previous Vermont case law referred to in Hinkson did not support the interpretation favored by the Court and that the rule of lenity should not be applied to the civil stalking statute.

¶ 15. We considered and rejected most of plaintiff's arguments in Hinkson. See 2020 VT 69, ¶¶ 32-34, ¶¶ 44-46, 213 Vt. 32, 239 A.3d 212 ; id. ¶¶ 54-62, 71 (Reiber, C.J., dissenting) (opining that civil stalking statute should be construed more broadly due to its remedial nature and disagreeing that rule of lenity applies or that only true threats are proscribed). Plaintiff nevertheless...