Paul Maravelias's Pro Se NH Supreme Court Appeal Brief in 2018-0376, Paul Maravelias v. David DePamphilis
Paul Maravelias's Pro Se NH Supreme Court Appeal Brief in 2018-0376, Paul Maravelias v. David DePamphilis
SUPREME COURT
2018 TERM
PAUL MARAVELIAS
Plaintiff-Appellant
vs.
DAVID DEPAMPHILIS
Defendant-Appellee
BRIEF OF PLAINTIFF
Submitted by Plaintiff,
Paul J. Maravelias
34 Mockingbird Hill Rd
Windham, NH 03087
[email protected]
603-475-3305
ORAL ARGUMENT
REQUESTED
TABLE OF CONTENTS
ARGUMENT .......................................................................................... 23
A. Standard of Review.................................................... 23
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
A. Maravelias Exhaustively Evidenced the Allegations
Contained Within His Truthful Stalking Petition ........... 35
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
CONCLUSION ....................................................................................... 48
APPENDIX ............................................................................................. 51
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
TABLE OF AUTHORITIES
Cases
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
Harkeem v. Department of Employment Security, 115 N.H. 658,
348 A.2d 711 (1975) ................................................................. 41
J&M Lumber and Construction Co. Inc. v Smyjunas, 161 N.H.
714, 723 (2011) ......................................................................... 23
Keenan v. Fearon, 130 N.H. 494, 502, 543 A.2d 1379, 1383
(1988) ........................................................................................ 37
King v. Mosher, 137 N.H. 453, 457, 629 A.2d 788, 791 (1993) . 40
Kukene v. Genualdo, 145 N.H. 1 (2000) ............................... 43, 47
LaMontagne Builders v. Bowman Brook Purchase Group, 150
N.H. 270, 276 (2003) ................................................................ 37
Laramie, et al. v. Stone, et al., 160 N.H. 419, 425 (2010) ........... 23
McKenzie v. City of Berlin, 145 N.H. 467, 470 (2000) .............. 44
Nash Family Inv. Prop. v. Town of Hudson, 139 N.H. 595 (1995)
................................................................................................... 44
Silva v. Botsch, 121 N.H. 1041, 1043, 437 A.2d 313, 314 (1981)
................................................................................................... 40
St. Germain v. Adams, 117 N.H. 659, 662, 377 A.2d 620, 623
(1977) ........................................................................................ 40
State v. Gubitosi, 152 N.H. 681-683, 886 A.2d 1029 (2005) ...... 30
State v. Lambert, 147 N.H. 295, 296 (2001) ................................ 23
State v. Simone, 152 N.H. 755, 759 (2005) ........................... 31, 32
Stolberg v. Members of Bd. of Trustees for State Col. of Conn.,
474 F.2d 485, 490 (2d Cir. 1973).............................................. 42
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
Vlack v. Town of Rye & Record, No. CIV. 98-271-M, 1999 WL
813973 (D.N.H. May 28, 1999) ................................................ 32
Walker v. Walker, 158 N.H. 602, 608 (2009) .............................. 38
Statutes
Literary Works
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QUESTIONS PRESENTED
1
References to the record are abbreviated herein as follows:
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
TEXT OF RELEVANT AUTHORITIES
Statutes
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
STATEMENT OF THE CASE
In its 2/22/18 finding dismissing the petition, the trial court verbally
postured against Maravelias, who believed himself a victim of stalking, and
included an utterly bizarre comment that Plaintiff had provided “no credible
evidence” for his allegations. But, Maravelias’s overdue stalking petition
allegations against DePamphilis were truthful and thoroughly corroborated
by testimony and physical evidence at hearing. Defendant contested these
allegations’ legal sufficiency to show a stalking course of conduct, but
rarely if ever disputed their factual “credibility”. Enabled by the trial
court’s shocking and groundless comment, DePamphilis filed the said
3/9/2018 motion for award of fees alleging the Maravelias had filed the
petition in “bad faith”.
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bad-faith stalking petition, as DePamphilis procured his daughter to file a
mendacious stalking petition against Maravelias in late 2016 for retaliatory,
disingenuous purposes (see related case Christina DePamphilis vs. Paul
Maravelias, 473-2016-CV-00124, currently under separate appeal in 2018-
0483) The DePamphilis actors attacked Maravelias in that 2016 stalking
petition with dramatic, malicious falsehoods – many recently exposed as
lies at 5/3/18 and 5/4/18 trial court hearings on an extension motion in that
case. In DePamphilis v. Maravelias, Defendant possessed a censored cell-
phone audio recording which would have completely disproved the central
accusation of the stalking petition, which David DePamphilis conspired in
bad faith to bring against Maravelias, as he has argued to the trial court. In
that case, a Final Order was actually granted.
Yet in the instant case, the trial court granted DePamphilis’s motion for
attorney’s fees and thus ordered an impecunious 22-year-old to pay
$9,029.51 to his wealthy victimizer. The same trial court judge then
rejected Maravelias’s subsequent ten-page Motion for Reconsideration in a
nondescript, hastily scribbled 6/14/18 Order – an exiguous 18-word
sentence (A5). At this point, Maravelias found himself simultaneously
penalized for making a truthful stalking petition, while himself unlawfully
under the yoke of a demonstrably falsified one.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
STATEMENT OF FACTS
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
proposal on her driving-age birthday. Maravelias pulled off this fairytale
“sweet-sixteen” charming-gentleman trope brilliantly, even customizing the
license plate with her initials. But, despite the gregarious stunt, she turned
him down. The mother, Laurie, clarified her daughter only viewed
Maravelias as “a nice friend”. A confident and levelheaded gentleman,
Maravelias accepted her polite rejection and said the words, “I respect your
feelings”. Wishing the daughter-mommy pair a “beautiful Christmas”, he
left. He “never spoke another word to her again after that day [outside
court]” (T43) – an undisputed fact.
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Maravelias at the end of the 12/12/16 call he would “tell his daughter there
[was] nothing to worry about [regarding Maravelias]”. (T83,469)
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on 12/14/16 to make “a plan” about Maravelias’s “issues”, feeling
Maravelias was “crazy” and needed “psychological help”. (T281)
Maravelias was a mentally sound college-student with no history of
violence, attested by at least one character-reference later entered into the
record (A30). Maravelias recalled that his parents in this time were “scared
of [DePamphilis]”, “coddling him like a little spoiled brat who was having
a temper tantrum”, and “collaboratively” “entertaining this absurd
psychotic notion that [Maravelias has] these mental disorders” (T136). Ted
remembered there was a “resolution” achieved on the matter that night
(T219), which DePamphilis disputed (T414).
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
asking him to “stop harassing [his] parents” (A8;T47,218). DePamphilis
did not reply to Maravelias; instead, he texted Maravelias’s parents saying
“this was the last straw” and that he’s finally “taking legal action” –
angered by Maravelias’s corrective “please stop harassing my parents” text
(T217, 470). The “legal action” threatened turned out to be a stalking
petition his daughter, nominally, filed on 12/28/16 against Maravelias,
having nothing to do with Maravelias’s text to David DePamphilis.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
falsified, bad-faith stalking order against Maravelias, a legally-untrained
pro se 21-year-old defendant at that original stalking hearing.2
2
Maravelias prefaces that, for this preliminary reason of the “last straw” quote and severe
falsifications of fact recently exposed this May before the same trial court, he will make passing
reference throughout this brief to the separate stalking case against him as being frivolous and
malicious, and will assume propriety in doing so. See related appeal, No. 2018-0483.
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psychotic reversal” (T143). Maravelias was both a college student in
Hanover, NH at the time (T64,187), employed as a Dartmouth Resident
Advisor (T45;A30), and on that particular date (3/21/17) was spending
spring break in Mexico (T59,68), over 2400 miles away.
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his daughter’s public social media account in anticipation of defamatory
content. DePamphilis, his daughter, and her new boyfriend made a post on
6/21/17 picturing themselves extending their middle-fingers to the camera,
with a caption that identified Maravelias as the recipient. (A6; T60-
66,179,245-246,251,344,477). Such was DePamphilis’s compulsion to
“taunt and insult [Maravelias] with a face of schadenfreude” (T83), even
though visible to whole “Town of Windham” (T477). DePamphilis
confirmed in his testimony that he appeared in this 6/21/17 public social
media post taunting the recipient with his middle finger (T347). The
caption of the post identified Maravelias (T63-64). The petition was correct
in claiming the 21-year-old man alongside DePamphilis and his daughter
was indeed the boyfriend of DePamphilis’s 16-year-old daughter (T66),
whose relationship to her had been sexual (TMotion10), despite the same
16-21 age difference between Maravelias and DePamphilis’s daughter
where Maravelias merely invited her on a platonic dinner date. Maravelias
submitted digital photographic copies of the post and even provided a web
archive permalink for additional verification (A6,7). DePamphilis offered
that he was “embarrassed” by the photo while desperately struggling to
deny involvement as much as possible, dubiously claiming he did not “even
remember taking the photo” (T347).
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
iv. Generalia from Hearing on Petition
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
(T25,156,263). Maravelias has not yet publicly “published the book”
because he is “fearful of [DePamphilis]”. (T140)
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
SUMMARY OF ARGUMENT
This stalking petition was the only legal action Maravelias has ever
taken against DePamphilis and does not come close to satisfying the
standard for exceptional award of attorney’s fees. Further, the trial court’s
rejection of DePamphilis’s mid-trial motion to dismiss necessarily conflicts
with its later finding that the same petition was “patently unreasonable”.
This left the Plaintiff confused as to the trial court’s fickle and inexplicably
reversed positions regarding the alleged patent unreasonableness of his
petition. Since the trial court erred in its adjudication of a “bad-faith” or
“patently unreasonable” stalking petition, its award of fees against
Maravelias is groundless and must be reversed.
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ARGUMENT
A. Standard of Review
To prevail on a claim that the trial court’s decision was not sustainable,
an appellant must show the ruling was clearly untenable or unreasonable to
the prejudice of his case. J&M Lumber and Construction Co. Inc. v.
Smyjunas, 161 N.H. 714, 723 (2011) and Laramie, et al. v. Stone, et al.,
160 N.H. 419, 425 (2010). In applying the unsustainable exercise of
discretion standard of review, this Court determines “whether the record
establishes an objective basis sufficient to sustain the discretionary
judgement made.” State v. Lambert, 147 N.H. 295, 296 (2001). The Court
will not overturn the trial court’s decision if “a reasonable person could
have reached the same decision as the trial court on the basis of the
evidence before it.” Benoit v. Cerasaro, 169 N.H. (2016).
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The statute specifies three definitions of “stalking”, two of which are
arguably applicable to the Defendant’s alleged acts in this case, at 633:3-a,
I.:
Maravelias took elaborate pains to ensure his own stalking petition was
truthful and, beyond this, factually verifiable. His petition alleged “three
major incidents” (T142) regarding DePamphilis’s conduct to show a
stalking course of conduct, notwithstanding many lesser incidents further
contributing to the course of conduct.
“David began stalking me and my family way back in December 2016. He called
my father on 12/12/16 and swore at him screaming like a madman because I
asked his daughter out to a date and then left once rejected. Then he called me
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and screamed all sorts of threats at me. He continued this behavior until even 11
days later on 12/23 when he made another harassing phone call to my family. I
had been clear with David that my family and I were sick of his telephone tirades
and we had asked him to stop.” (A21)
“On 3/21/2017 David got angry with me because he thought I’d insulted him.
At 10pm that night he got in his car and went marauding after me in my
neighborhood. I have proof of him admitting his purpose was to find me out on
the road.” (A20)
That this allegation was shown factually true lies totally beyond
question. Maravelias submitted DePamphilis’s own WPD letter as proof to
the trial court (T143;A9). The Plaintiff here repeats and incorporates by
reference his Statement of Facts, supra, subsection (ii). Maravelias’s
physical evidence corroborated both his and DePamphilis’s testimonies that
the 3/21/17 incident happened; only DePamphilis’s purposes or motives
were contested.
The third primary allegation of the petition was:
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
daughter. I have a copy of this intimidating post for the hearing.” (A20)
To the extent that whatever failures by the trial court in adjudging the
factual allegations’ “credibility” did not influence its dismissal decision, it
nonetheless erred in failing to find the allegations as forming a stalking
course of conduct. Maravelias specifically rehearsed the definition of a
“course of conduct” before the trial court and exactingly applied
DePamphilis’s acts thereto during closing argument. RSA 633:3-a, II. (a)
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provides that “a course of conduct may include, but not be limited to, any
of the following acts or a combination thereof:”
This part of the stalking statute, 633:3-a, II. (a), “through its use of the
phrase ‘may include, but not be limited to,’ provides that the enumerated
acts do not constitute an exhaustive list.” Fisher v. Minichiello, 155 N.H.
192 (2007). “When a statute sets forth a nonexhaustive list of acts, we have
held that other acts which are similar may be considered.” Id., citing
Conservation Law Found. v. N.H. Wetlands Council, 150 N.H. 1, 5-6, 834
A.2d 193 (2003). Notwithstanding the non-extensive nature of 633:3-a, II.
(a), Maravelias correctly asserted before the trial court that DePamphilis’s
acts formed a course of conduct by a plural combination of enumerated and
non-enumerated acts.
Maravelias first propounds that solely the first and third primary
allegations (DePamphilis’s December 2016 conduct and the 6/21/17 social
media post) satisfy the legal standard of a “course of conduct”, wholly
excluding consideration of the 3/21/17 neighborhood night-search incident.
Testifying, DePamphilis vigorously denied he was seeking conflict with
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Maravelias or was armed on the night of 3/21/17, rather claiming a
legitimate purpose which laughably framed Maravelias as the stalker – as if
DePamphilis were to hunt him down on the road in self-defense of his
family [Maravelias had no history of violence and was in a different
country at the time]. Maravelias bitterly disputed the credibility of
DePamphilis’s psychologically projective storytelling (T143); however, let
his 3/21/17-related defense be accepted henceforth arguendo.
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of Protection in which the factual allegations against defendant very closely
mirrored DePamphilis’s December 2016 conduct alone, even
notwithstanding the aggravating factors of the 3/21/17 and 6/21/17
incidents.
3
Aliunde, forthcoming transcript of Maravelias testimony at 6/8/18 hearing in related case under
Judge Coughlin. The trial court denied Maravelias’s Motion for Reconsideration in the instant
case on 6/14/18, thus having considered all the further evidence undermining its award of fees
exposed at the May and June hearings in the related case.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
concerning, DePamphilis worsened in his anger (T245) in his second phone
call with Maravelias on 12/14/16 – two days after his initial outburst.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
could be considered one of the two acts required to prove a course of
conduct.”
Likewise, State v. Simone, 152 N.H. 755, 759 (2005) reinforces even
more poignantly than Fisher the indefensibility of not holding
DePamphilis’s acts as forming a stalking course of conduct. Solely repeated
acts of unwanted contact, including “telephone calls and gifts”, sustained
the verdict against Simone. Id. Like DePamphilis (T259), Simone denied
violent intentions and insisted he “never entertained the thoughts of
hurting” the victim. Id. Simone argued against his conviction by pointing
out his unwanted phone calls to the victim were “mostly apologiz[ing] and
express[ing] his continuing love”, rather than adopting a nature of hostility.
Id.
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social media post explicitly directed towards Maravelias, middle-
fingering him along with a new boyfriend as to provoke a disorderly
jealousy response. No such further aggravating factor existed in Simone
when this Court upheld a criminal stalking conviction, let alone a civil
protective order relief.
Further, DePamphilis’s acts of communication were objectively
unlawful under the Harassment statute (RSA 644:4) ipso facto, whereas
Simone’s unwanted romantic expressions were otherwise appropriate
and patently tepid in their comparative severity. RSA 644:4, I. (c)
assesses misdemeanor harassment if a person:
“(c) Insults, taunts, or challenges another in a manner likely to provoke a
violent or disorderly response;”
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adopted by this Court for determining which course-of-conduct-acts
cause a reasonable person to fear for their physical safety.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
testimony, necessitating the bailiff’s immediate intervention.4 Maravelias
noted this behavior reinforces his fear following from DePamphilis’s
manifest signs of heightening aggression – a bellicose “vindictive
obsession” (T120) so unfettered by common propriety that he was unable to
control his rage against Maravelias even inside a Derry courtroom, mere
feet away from Judge Coughlin and Attorney Brown.
The Court should consider these further factors under its general
supervisory powers and under its ruling in Despres v. Hampsey, 162
N.H. 398, 401 (2011). “While these circumstances, as noted above, need
not be part of the specific acts proven under RSA 633:3–a, II(a)(3), they
4
While transcripts of this hearing are currently forthcoming for the related appeal case, the record
of this incident can be ascertained from the videographer’s recording of the 5/4/18 hearing at this
URL: https://www.youtube.com/watch?v=eAIuzOJQWLY&t=5m11s
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do provide context and support for the plaintiff’s fear of the defendant.”
Id.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
against Miss Colón!56 Christina’s evidenceless petition was dismissed after
a Final Hearing. Where was Miss Colón’s award of fees for being forced to
defend against a stalking petition that actually seemed of bad faith, birthed
in the palpable provenance of uxorial jealousy?
E. The Petition was Not Made in “Bad Faith” nor was “Patently
Unreasonable”
The Plaintiff first contests the trial court’s finding that his petition was
“patently unreasonable”. An award of attorney’s fees is appropriate when a
party must litigate against an opponent whose position is patently
5
Judge Stephen is the same judge who granted the DePamphilis 12/28/16 stalking petition against
Maravelias, currently under appeal in the related case. May this Honorable Court form its own
impressions regarding Judge Stephen’s pattern of stalking order conduct which speaks for itself.
6
Cf. 173-B:4, I., the legal standard for temporary protective order issuance, mandating “a showing
of an immediate and present danger of abuse”.
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unreasonable. LaMontagne Builders v. Bowman Brook Purchase Group,
150 N.H. 270, 276 (2003). See also Business Publications v. Stephen, 140
N.H. 145, 147, 666 A.2d 932, 933 (1995); Keenan v. Fearon, 130 N.H. 494,
502, 543 A.2d 1379, 1383 (1988). A claim is patently unreasonable when it
is commenced, prolonged, required, or defended without any reasonable
basis in the facts provable by evidence or any reasonable claim in the law
as it is, or as it might arguably be held to be. Id. See also Keenan, 130 N.H.
at 502, 543 A.2d at 1383.
Plaintiff now addresses the trial court’s finding his petition was made in
“bad faith”. This finding is false. Maravelias submits it is surreal to find
himself defending the legitimacy of his conservative, long-overdue stalking
petition against the very same person who conspired in December 2016 to
damage Maravelias – successfully – with a malicious, bad-faith stalking
petition littered with now-exposed lies and/or reckless inaccuracies, as
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Maravelias highlighted before the trial court in the separate case and shall
review in that forthcoming appeal (No. 2018-0483). Maravelias intently
“waited until [he] had some of the additional signals in late 2017 about
[DePamphilis’s] repeat harassment” (T246) before filing his petition, even
after the three major incidents happened. Maravelias was compiling a
criminal complaint against DePamphilis in late 2017 for his believed-to-be
unlawful acts: a recourse which would have potentially granted Maravelias
relief from DePamphilis’s stalking if the Salem Police had not declined to
prosecute DePamphilis (T247,248). At this point, Maravelias knew he had
“waited too long” (T248) and filed the genuine, meritorious stalking
petition on 12/8/17 “out of protection for [his] safety” (T249).
Insofar as the trial court did not commit a legal error in granting an
award of attorney’s fees, it incorrectly surmised from the available evidence
that Maravelias’s petition was made in “bad faith”. This Court reviews
sufficiency of the evidence claims as a matter of law and upholds the
findings and rulings of the trial court unless they are lacking in evidentiary
support or tainted by error of law. Walker v. Walker, 158 N.H. 602, 608
(2009). The Court views “the evidence in the light most favorable to the
plaintiff”. Id. The single piece of evidence DePamphilis advanced for the
existence of “bad faith” motivations behind the petition was a comment
Maravelias made on 2/1/17 at Salem District Court on the stalking petition
which DePamphilis had conspired through his daughter to file against
Maravelias. Maravelias, a legally untrained 21-year-old college student and
victim of false stalking accusations, had made the following comment
during his pro se defense:
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
“If I’m made so angry that this unjust stalking order, which is contrived out
of thin air, should be issued, which I’m confident it won’t, especially after
my parents’ testimony, I would feel like I need to devote my life towards
legal retaliation.” (T87)
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
determine whether an action is frivolous7.” King v. Mosher, 137 N.H. 453,
457, 629 A.2d 788, 791 (1993).
The trial court’s 5/11/18 order cites two legal authorities for its fees
award: Daigle (supra), and a case called “Harkeem v. NH Dept of
Employment Security, 117 N.H. 687 (1977)”. Unfortunately, the latter case
7
“Frivolous” here is dated terminology synonymous with “patently unreasonable”.
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PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
is nonexistent outside the trial court’s imagination. Embarrassingly, it
appears the trial court proffered a careless confounding of two or three real
cases, Griffin v. New Hampshire Department of Employment Security, 117
N.H. 108, 370 A.2d 278 (1977) and Harkeem v. Department of
Employment Security, 115 N.H. 658, 348 A.2d 711 (1975) – both cited by
the conventional authority on bad-faith attorney’s fees award, Harkeem v.
Adams, 117 N.H. 687, 377 A.2d 617 (1977). It seems superfluous to
remark that Judge Coughlin’s negligent legal treatment of an impecunious
22-year-old’s entire financial livelihood is suspect.
vi. The Award of Fees Was Not Permissible under Daigle nor
Harkeem
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allegations at trial through physical evidence, testimony, and cross-
examination of the Respondent constitutes a discretion exercised for
‘clearly untenable’ reasons and ‘to an extent clearly unreasonable to the
prejudice of’ the Respondent”. (A15 ¶30)
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pursuing a host of further legal actions he could have rightfully taken
against DePamphilis. (A15 ¶26)
Here, the trial court’s award of fees would set a new and impossible
precedent, violating the overriding “principle that no person should be
penalized for merely defending or prosecuting a lawsuit.” Harkeem at 690.
Assuming the Plaintiff fails to sustain that the trial court’s non-issuance
of a stalking order was an unsustainable exercise of discretion, that does not
equate to a finding that the trial court could not have found DePamphilis’s
course of conduct to cause a reasonable person to fear for their safety.
Further, even if Maravelias was actually incorrect about DePamphilis’s
actions meeting the burden for civil stalking, this does not amount to “bad
faith” conduct. Assuming this extreme unlikelihood “that valid reasons
existed to deny the plaintiffs’ … claim”, this “does not lead to the
conclusion that the ‘litigation [was] instituted or unnecessarily prolonged
through [the plaintiffs’] oppressive, vexatious, arbitrary, capricious or bad
faith conduct’ against the defendant.” Kukene v. Genualdo, 145 N.H. 1
(2000), citing Clipper Affiliates v. Checovich, 138 N.H. 271 (1994) at 278,
638 A.2d at 796, where this Court overturned an improper award of
attorney’s fees solely because the corporate plaintiff had submitted some
baseline level of circumstantial evidence to support its claim. Cf.
Maravelias’s petition, containing direct physical evidence (digital
screenshots) of DePamphilis’s 6/21/17 post (A6-7) and SMS text message
history indicating the perceived “harassment” in December 2016 (A8).
43
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
“Reasonable, albeit mistaken, interpretation” of the law does not
constitute bad faith. McKenzie v. City of Berlin, 145 N.H. 467, 470 (2000),
upholding a trial court’s denial of award of attorney’s fees. Also instructive
hereon is Nash Family Inv. Prop. v. Town of Hudson, 139 N.H. 595 (1995),
overturning an award of attorney’s fees even while this Court “readily
sympathize[d] with the superior court’s frustration with the trial tactics” of
overt discovery misconduct, due to which the lower court had granted fees.
Even though the Court found “most of the plaintiffs’ claims were
meritless”, it still vacated the fees award as aspects of the “issues enjoyed
some, albeit weak, factual support”. Id. at 605. Cf. Maravelias’s petition,
meticulously buttressed by physical evidence and witness testimony at
every corner of its structure.
Judicially, this Court has made it clear that “no person should be
penalized for merely defending or prosecuting a lawsuit”, Harkeem v.
Adams, ibid., and that “award of attorney’s fees is the exception rather than
the rule.” Flanagan v. Prudhomme, 138 N.H. 561, 576, 644 A.2d 51, 62
(1994). However, to the extent that David DePamphilis bids this Court
44
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
contravene long-settled precedent, it should first consult the legislature’s
guidance on the matter.
Both the stalking statute (RSA 633:3-a) and the domestic violence
statute (RSA 173-B) controlling the procedures for stalking protective
orders, are deafeningly silent on the topic of attorney’s fees against
unsuccessful petitioners8. Quite simply, there is no statutory authorization
here.
Compare to Maravelias, who has filed one, not three, civil actions, for
valid purposes of relief from DePamphilis’s alleged stalking behaviors
(A20). The statutory definition in 507:15-a of “vexatious litigation” is
consistent with the qualification in Harkeem of repeated, continued,
8
This is in contrast to award of attorney’s fees against defendants, if a protective order is issued.
See RSA 173-B:5, I. (a)(10)
45
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
“obdurate” litigation as the characteristic gravamen of “bad faith” conduct
– not a single, truthful stalking petition. Clearly, if the 2013 legislature
wished to draconianize civil stalking petition procedure enough to warrant
punitive fee awards against well-meaning though non-prevailing
petitioners, it had every opportunity to amend the stalking statute then.
Rather, it enacted a separate statute proscribing actual sustained vexatious
conduct orders of magnitude more insane than even the conduct the trial
court wrongly attributed to Maravelias.
46
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
Maravelias’s petition was “patently unreasonable” – suggesting a biased
finding in DePamphilis’s favor when the trial court later signed-off on his
motion for fees award. Indeed, the question of whether Judge Coughlin’s
written findings against Maravelias have been regularly disingenuous and
dismissive on the brink of his 9/5/18 retirement – i.e., contrary to his honest
judicial impressions – is a rich topic which Maravelias is excited to explore
more aptly in the upcoming related appeal (No. 2018-0483).
47
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
CONCLUSION
I, Paul Maravelias, hereby certify that this document was not drafted by
a limited-representation attorney nor exceeds word count limitation. See
N.H. Sup. Ct. R. 16(10), (11). Further, I certify that copies of the Derry
District Court decisions being appealed are attached hereto. See N.H. Sup.
Ct. R. 16(3)(i).
Respectfully submitted,
PAUL J. MARAVELIAS ,
in propria persona
__________________________________
Paul J. Maravelias THE TWELFTH DAY OF SEPTEMBER
34 Mockingbird Hill Road IN THE YEAR OF OUR LORD MMXVIII
Windham, New Hampshire 03087
[email protected]
(603) 475-3305
48
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
PRAYER FOR ORAL ARGUMENT
49
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
CERTIFICATE OF SERVICE
I hereby certify that on this day were mailed two copies of the within
Appellant’s Brief and accompanying Appendix, postage prepaid, to Simon
R. Brown, Esquire, Counsel for the Defendant-Appellee, David
DePamphilis, P.O. 1318 Concord, New Hampshire, 03302-1318.
__________________________________
Paul J. Maravelias
50
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
APPENDIX
51
PAUL MARAVELIAS – 34 MOCKINGBIRD HILL RD, WINDHAM, NH 03087
A1
A2
A3
A4
A5
On 6/21/17, David DePamphilis pictured himself in the following post on his daughter Christina’s
public social media making vulgar gestures against the Plaintiff, Paul Maravelias.
It was targeted against Maravelias, and its caption read “Did Dartmouth [Defendant’s college] teach
you how to do this 🖕🏼” [Middle finger “emoji”].
This act of harassment was to taunt Maravelias that DePamphilis had successfully abused him with a
falsified restraining order, and bait Maravelias into violating it.
The man on the right is Matthew LaLiberte, DePamphilis’s daughter’s college-age boyfriend.
Permalink for verification: http://bit.ly/2y0JFEF
A6
DePamphilis 6/21/17 public social media post directed towards Maravelias
Permalink for verification: http://bit.ly/2y0JFEF
A7
12/23/16 text message sent to DePamphilis from Maravelias documenting DePamphilis’s
continued unwanted contact and his Middlesex County 508 area code cell number, similar to
the aforecited harassing text message:
A8
Defamatory letter by DePamphilis against Maravelias to WPD (complaining about Maravelias’s audio
recording proving DePamphilis’s felony perjury) containing admission of DePamphilis’s deranged
3/21/17 stalking incident against Maravelias.
A9
A10
A11
A12
A13
A14
A15
A16
A17
A18
A19
A20
A21
A22
A23
A24
A25
A26
A27
A28
A29
A30
A31
TEXT OF RELEVANT AUTHORITIES
A33
extension of any order under this paragraph to be held within 30 days of the extension. The court
shall state in writing, at the respondent's request, its reason or reasons for granting the extension. The
court shall retain jurisdiction to enforce and collect the financial support obligation which accrued
prior to the expiration of the protective order.
III-d. (a) A protective order issued pursuant to this section, RSA 173-B:4, or RSA 173-B:5 shall not
be construed to prohibit an attorney, or any person acting on the attorney's behalf, who is representing
the defendant in an action brought under this chapter, or in any criminal proceeding concerning the
abuse alleged under this chapter, from contacting the plaintiff for a legitimate purpose within the
scope of the civil or criminal proceeding; provided, that the attorney or person acting on behalf of the
attorney: identifies himself or herself as a representative of the defendant; acknowledges the
existence of the protective order and informs the plaintiff that he or she has no obligation to speak;
terminates contact with the plaintiff if the plaintiff expresses an unwillingness to talk; and ensures
that any personal contact with the plaintiff occurs outside of the defendant's presence, unless the court
has modified the protective order to permit such contact.
(b) A no-contact provision in a protective order issued pursuant to this section shall not be construed
to:
(1) Prevent contact between counsel for represented parties; or
(2) Prevent a party from appearing at a scheduled court or administrative hearing; or
(3) Prevent a defendant or defendant's counsel from sending the plaintiff copies of any legal
pleadings filed in court relating to the domestic violence petition or related civil or criminal matters.
(c) A violation of this paragraph may result in a finding of contempt of court.
IV. In any complaint, information, or indictment brought for the enforcement of any provision of this
statute, it shall not be necessary to negate any exception, excuse, proviso, or exemption contained
herein and the burden of proof of any exception, excuse, proviso, or exemption shall be upon the
defendant.
V. Any law enforcement officer may arrest, without a warrant, any person that the officer has
probable cause to believe has violated the provisions of this section when the offense occurred within
12 hours, regardless of whether the crime occurred in the presence of the officer. A law enforcement
officer shall arrest a person when he has probable cause to believe a violation of the provisions of this
section has occurred within the last 12 hours when the offense involves a violation of a protective
order issued pursuant to RSA 173-B, RSA 458:16, or paragraph III-a of this section.
VI. (a) Any person convicted of a violation of this section and who has one or more prior stalking
convictions in this state or another state when the second or subsequent offense occurs within 7 years
following the date of the first or prior offense shall be guilty of a class B felony.
(b) In all other cases, any person who is convicted of a violation of this section shall be guilty of a
class A misdemeanor.
VII. If any provision or application of this section or the application thereof to a person or
circumstance is held invalid, the invalidity does not affect other provisions or applications of this
section which can be given effect without the invalid provisions or applications, and to this end the
provisions of this section are severable.
A34
VIII. (a) Upon proof that the victim and defendant were intimate partners or family or household
members, as those terms are defined in RSA 631:2-b, III, a conviction under this section shall be
recorded as "stalking-domestic violence."
(b) In addition to any other penalty authorized by law, the court shall levy a fine of $50 for each
conviction recorded as "stalking-domestic violence" under this paragraph. The court shall not reduce
or suspend any sentence or the payment of any fine imposed under this paragraph and no fine
imposed under this paragraph shall be subject to an additional penalty assessment. If the court
determines that the defendant is unable to pay the fine on the date imposed, the court may defer
payment or order periodic payments thereof. The clerk shall forward all fines collected under this
paragraph to the department of health and human services for the purposes of RSA 173-B:15. The
provisions of RSA 618:8 and RSA 618:9 shall not apply to a fine imposed under this paragraph.
173-B:5 Relief. –
I. A finding of abuse shall mean the defendant represents a credible threat to the safety of the
plaintiff. Upon a showing of abuse of the plaintiff by a preponderance of the evidence, the court shall
grant such relief as is necessary to bring about a cessation of abuse. Such relief shall direct the
defendant to relinquish to the peace officer any and all firearms and ammunition in the control,
ownership, or possession of the defendant, or any other person on behalf of the defendant for the
duration of the protective order. Other relief may include:
(a) Protective orders:
(1) Restraining the defendant from abusing the plaintiff.
(2) Restraining the defendant from entering the premises and curtilage where the plaintiff resides,
except when the defendant is accompanied by a peace officer and is allowed entry by the plaintiff for
the sole purpose of retrieving personal property specified by the court.
(3) Restraining the defendant from contacting the plaintiff or entering the plaintiff's place of
employment, school, or any specified place frequented regularly by the plaintiff or by any family or
household member.
(4) Restraining the defendant from abusing the plaintiff, plaintiff's relatives, regardless of their place
of residence, or plaintiff's household members in any way.
(5) Restraining the defendant from taking, converting, or damaging property in which the plaintiff
may have a legal or equitable interest.
(6) Directing the defendant to relinquish to the peace officer, in addition to the relief specified in
RSA 173-B:5, I, any and all deadly weapons specified in the protective order that are in the control,
ownership, or possession of the defendant, or any other person on behalf of the defendant.
(7) Granting the petitioner exclusive care, custody, or control of any animal owned, possessed,
leased, kept, or held by the petitioner, defendant, or a minor child in either household, and ordering
the defendant to stay away from the animal and forbidding the defendant from taking, transferring,
encumbering, concealing, committing an act of cruelty or neglect, or disposing of the animal.
(b) Other relief including, but not limited to:
(1) Granting the plaintiff the exclusive use and possession of the premises and curtilage of the
plaintiff's place of residence, unless the defendant exclusively owns or leases and pays for the
premises and the defendant has no legal duty to support the plaintiff or minor children on the
premises.
(2) Restraining the defendant from withholding items of the plaintiff's personal property specified by
the court. A peace officer shall accompany the plaintiff in retrieving such property to protect the
plaintiff.
(3) Granting to the plaintiff the exclusive right of use and possession of the household furniture,
A35
furnishings, or a specific automobile, unless the defendant exclusively owns such personal property
and the defendant has no legal duty to support the plaintiff or minor children.
(4) Ordering the defendant to make automobile, insurance, health care, utilities, rent, or mortgage
payments.
(5) Awarding temporary custody of the parties' minor children to either party or, where appropriate,
to the department, provided that:
(A) Where custody of the parties' minor children with the department may be appropriate, the
department shall receive actual notice of the hearing 10 days prior to such hearing provided that, if
necessary, such hearing may be continued 10 days to provide the department adequate notice.
(B) The department may move at any time to rescind its custody of the parties' minor children.
(6) Establishing visitation rights with regard to the parties' minor children. The court shall consider,
and may impose on a custody award, conditions necessary to assure the safety of the plaintiff and
minor children. This may include orders denying visitation, requiring supervised visitation that shall
take place only at a visitation center that uses a metal detection device and has trained security
personnel on-site, or requiring supervised visitation, where such order can be entered consistent with
the following requirements. In determining whether visitation shall be granted, the court shall
consider whether visitation can be exercised by the non-custodial parent without risk to the plaintiff's
or children's safety. In making such determination, the court shall consider, in addition to any other
relevant factors, the following:
(A) The degree to which visitation exposes the plaintiff or the children to physical or psychological
harm.
(B) Whether the risk of physical or psychological harm can be removed by ordering supervised
visitation or by ordering supervised visitation at a center that uses a metal detection device and has
trained security personnel on-site.
(C) Whether visitation can be ordered without requiring the plaintiff and defendant to have contact
regarding the exchange of children.
(7) Directing the defendant to pay financial support to the plaintiff or minor children, unless the
defendant has no legal duty to support the plaintiff or minor children.
(8) Directing the abuser to engage in a batterer's intervention program or personal counseling. If
available, such intervention and counseling program shall focus on alternatives to aggression. The
court shall not direct the plaintiff to engage in joint counseling services with the defendant. Court-
ordered and court-referred mediation of cases involving domestic violence shall be prohibited.
(9) Ordering the defendant to pay the plaintiff monetary compensation for losses suffered as a direct
result of the abuse which may include, but not be limited to, loss of earnings or support, medical and
dental expenses, damage to property, out-of-pocket losses for injuries sustained, and moving and
shelter expenses.
(10) Ordering the defendant to pay reasonable attorney's fees.
II. The defendant shall be prohibited from purchasing, receiving, or possessing any deadly weapons
and any and all firearms and ammunition for the duration of the order. The court may subsequently
issue a search warrant authorizing a peace officer to seize any deadly weapons specified in the
protective order and any and all firearms and ammunition, if there is probable cause to believe such
firearms and ammunition and specified deadly weapons are kept on the premises or curtilage of the
defendant.
III. Reconciliation after a previous order, prior to filing the current action, shall not be grounds for
denying or terminating a new or existing protective order. Furthermore, the court shall not deny the
plaintiff protective orders based solely on a lapse of time between an act of domestic violence and the
filing of a petition, provided that the underlying act presents a credible threat to the plaintiff's current
safety.
A36
IV. No order made under this section shall supersede or affect any court order pertaining to the
possession of a residence; household furniture; custody of children pursuant to RSA 169-B, 169-C, or
169-D; support or custody made under RSA 458; or custody of children of unwed parents as
determined by a circuit court, or title to real or personal property.
V. (a) Mutual orders for relief shall not be granted. A foreign mutual order for relief shall only be
granted full faith and credit in New Hampshire if it meets the requirements set out in RSA 173-B:13,
VII.
(b) Cross orders for relief may be granted only if:
(1) The court has made specific findings that each party has committed abuse against the other; and
(2) The court cannot determine who is the primary physical aggressor.
VI. Any order under this section shall be for a fixed period of time not to exceed one year, but may be
extended by order of the court upon a motion by the plaintiff, showing good cause, with notice to the
defendant, for one year after the expiration of the first order and thereafter each extension may be for
up to 5 years, upon the request of the plaintiff and at the discretion of the court. The court shall
review the order, and each renewal thereof and shall grant such relief as may be necessary to provide
for the safety and well-being of the plaintiff. A defendant shall have the right to a hearing on the
extension of any order under this paragraph to be held within 30 days of the extension. The court
shall state in writing, at the respondent's request, its reason or reasons for granting the extension. The
court shall retain jurisdiction to enforce and collect the financial support obligation which accrued
prior to the expiration of the protective order.
VII. Both parties shall be issued written copies of any orders issued by the court, and all orders shall
bear the following language: "A willful violation of this order is a crime, as well as contempt of
court. Violations of the protective provisions shall result in arrest and may result in imprisonment."
Orders shall clearly state how any party can request a further hearing and how the plaintiff may bring
a criminal complaint or a petition for contempt if there is a violation of any court order.
VIII. (a) No order issued under this chapter shall be modified other than by the court. Temporary
reconciliations shall not revoke an order.
(b) If either party wishes the defendant to be excused from any provisions of an order of protection,
the remedy is to petition the court for modification of such order.
(c) A defendant who is restrained from contacting the plaintiff or entering the premises of the
plaintiff is prohibited from doing so even if invited by the plaintiff unless the restraining order has
been modified by the court.
(d) This paragraph shall give unequivocal direction to peace officers that orders for protection are to
be enforced as written and that no action by a party relieves them of the duty to enforce the order.
VIII-a. Upon issuing an order against a defendant, in which a defendant is restrained from having any
contact with the plaintiff, the court shall advise the plaintiff that it would be unwise and possibly
unsafe for the plaintiff to contact the defendant. If the plaintiff wishes to contact the defendant for
any reason, the court shall advise the plaintiff that such contact be made only after petitioning the
court for a modification of the order. In an emergency situation, the plaintiff or plaintiff's family may
request that the local police department notify the defendant and the local police may accompany the
defendant to a designated location, such as a hospital, if appropriate.
IX. (a) A copy of each protective order issued under this chapter shall be transmitted to the
administrative office of the courts by facsimile or computer. An emergency protective order issued
telephonically shall be transmitted by telephone or facsimile to the department of safety.
(b) The administrative office of the courts shall enter information regarding the protective orders into
the state database which shall be made available to police and sheriff departments statewide. The
department of safety shall make available information regarding emergency protective orders issued
telephonically to police and sheriff departments statewide.
A37
(c) The administrative office of the courts shall update the database upon expiration or termination of
a protective order.
(d) Notwithstanding any other provision of law, the administrative office of the courts or the
department of safety, its employees and agents, and law enforcement officials shall not be held
criminally or civilly liable for action taken under this chapter or RSA 458:16, provided they are
acting in good faith and without gross negligence, and within the scope of their duties and authority.
IX-a. If a criminal records check conducted by the department of safety indicates that a potential
buyer or transferee is prohibited from receipt or possession of a firearm pursuant to a protective order
issued under this chapter, the department of safety shall notify the administrative office of the courts
of the denial. The administrative office of the courts shall immediately notify the plaintiff that the
defendant has attempted to purchase or obtain a firearm in violation of the protective order.
X. (a) Within 15 days prior to the expiration of the protective orders, the defendant may request, by
motion to the court, the return of any and all firearms and ammunition and specified deadly weapons
held by the law enforcement agency while the protective order was in effect. Upon receipt of such a
motion, the court shall schedule a hearing no later than 15 days after the expiration of the order. The
court shall provide written notice to the plaintiff who shall have the right to appear and be heard, and
to the law enforcement agency which has control of the firearms, ammunition, and specified deadly
weapons. The scope of the hearing shall be limited to:
(1) Establishing whether the defendant is subject to any state or federal law or court order that
precludes the defendant from owning or possessing a firearm; and
(2) Under circumstances where the plaintiff has requested an extension of the protective order,
whether the plaintiff has established by a preponderance of the evidence that the defendant continues
to represent a credible threat to the safety of the plaintiff.
(b) If the court finds that the defendant is not subject to any state or federal law or court order
precluding the ownership or possession of firearms, or if the court denies the plaintiff's request to
extend the protective order, the court shall issue a written order directing the law enforcement agency
to return the requested firearms, ammunition, or deadly weapon to the defendant.
(c) Law enforcement agencies shall not release firearms and ammunition and specified deadly
weapons without a court order granting such release. The law enforcement agency may charge the
defendant a reasonable fee for the storage of any firearms and ammunition and specified deadly
weapons taken pursuant to a protective order. The fee shall not exceed the actual cost incurred by the
law enforcement agency for the storage of the firearms and ammunition and specified deadly
weapons. The defendant may make alternative arrangements with a federally licensed firearms dealer
for the storage of firearms, at the defendant's own expense, upon approval of the court. Such firearms
shall be turned over to the appropriate law enforcement agency for transfer to the storage facility.
Retrieval of such firearms shall be through the law enforcement agency responsible for their transfer
to the storage facility pursuant to a court order as prescribed in this paragraph.
(d) No law enforcement agency shall be held liable for alleged damage or deterioration due to storage
or transportation to any firearms and ammunition and specified deadly weapons held by a law
enforcement agency, so long as due care is used.
641:2 False Swearing. –
A person is guilty of a misdemeanor if:
I. He makes a false statement under oath or affirmation or swears or affirms the truth of such a
statement previously made and he does not believe the statement to be true if:
(a) The falsification occurs in an official proceeding, as defined in RSA 641:1, II, or is made with a
purpose to mislead a public servant in performing his official function; or
(b) The statement is one which is required by law to be sworn or affirmed before a notary or other
person authorized to administer oaths; or
A38
II. He makes inconsistent statements under oath or affirmation, both within the period of limitations,
one of which is false and not believed by him to be true. In a prosecution under this section, it need
not be alleged or proved which of the statements is false but only that one or the other was false and
not believed by the defendant to be true.
III. No person shall be guilty under this section if he retracts the falsification before it becomes
manifest that the falsification was or would be exposed.
629:3 Conspiracy. –
I. A person is guilty of conspiracy if, with a purpose that a crime defined by statute be committed, he
agrees with one or more persons to commit or cause the commission of such crime, and an overt act
is committed by one of the conspirators in furtherance of the conspiracy.
II. For purposes of paragraph I, "one or more persons" includes, but is not limited to, persons who are
immune from criminal liability by virtue of irresponsibility, incapacity or exemption.
III. It is an affirmative defense to prosecution under this statute that the actor renounces his criminal
purpose by giving timely notice to a law enforcement official of the conspiracy and of the actor's part
in it, or by conduct designed to prevent commission of the crime agreed upon.
IV. The penalty for conspiracy is the same as that authorized for the crime that was the object of the
conspiracy, except that in the case of a conspiracy to commit murder the punishment shall be
imprisonment for a term of not more than 30 years.
A39