CHRISTOPHER BOURG v. TIMOTHY HENDON (2023)

Defendant-appellant, Timothy Hendon, appeals the trial court's grant of a protective order against him and in favor of plaintiff-appellee, Christopher Bourg. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 7, 2022, Mr. Bourg filed a Petition for Protection from Abuse against Mr. Hendon under La. R.S. 46:2171 et. seq., the Protection from Stalking Act. In his petition, Mr. Bourg alleged that Mr. Hendon followed and harassed him; made or sent telephone calls, texts, emails, or other electronic communications to him; sent messages via a third party, letters, pictures, or public posts to social media; implied or threatened him with bodily injury; implied or threatened his life; and stalked, harmed, or threatened to harm him, a member of his family, or his acquaintance. Mr. Bourg further alleged that the most recent circumstances of stalking included sending his wife threatening texts and calling her place of work, as well as the father of her children, and making accusations that nearly cost her her job and jeopardized her chances of visiting her children.¹ He also alleged harassing social media posts on fake Facebook and Instagram accounts where Mr. Hendon pretended to be Mr. Bourg. Mr. Bourg described past incidents of harassment to include over two years of unwanted emails from Mr. Hendon, which flooded his inbox with threats; Mr. Hendon making fake social media accounts saying “absolute, disgusting, racist and inhumane things”; and Mr. Hendon occasionally driving down his street.

Based on his petition, Mr. Bourg was granted a temporary restraining order (TRO) ex parte, and the matter was set for a hearing on February 25, 2022 to determine if the TRO should be made a protective order. The matter was continued and was heard by a hearing officer on July 8, 2022. During the hearing, both parties testified and introduced exhibits. At the conclusion of the hearing, the hearing officer made a recommendation that a protective order be issued against Mr. Hendon. Mr. Hendon was given notice that he had until July 15, 2022, to file an exception to the recommendation of the hearing officer, or a protective order would be signed by the judge in accordance with the hearing officer's recommendation. After no exception to the hearing officer's recommendation was filed, the trial court judge signed on July 25, 2022, the “Louisiana Uniform Abuse Prevention Order” granting a protective order pursuant to La. R.S. 46:2171 (Non-intimate stalking) ordering Mr. Hendon not to: abuse, harass, assault, stalk, follow, track, monitor, or threaten Mr. Bourg; not to contact Mr. Bourg personally, through a third party, or via public posting by any means including written, telephone, and electronic (text, email, messages, or social media) communication; not to go within 100 yards of Mr. Bourg; not to contact family members or acquaintances of Mr. Bourg; and to stay away from Mr. Bourg's place of employment or school and not to interfere with such employment or school. It is from this judgment that Mr. Hendon appeals, contending that the hearing officer erred by denying Mr. Hendon due process when it refused to show him the evidence or let him object to the evidence offered by Mr. Bourg, refused to allow him to testify or cross-examine Mr. Bourg, and refused to allow him to put records into evidence. Mr. Hendon further contends that the hearing officer made prejudicial statements towards him.

PROTECTION FROM STALKING ACT

Louisiana Revised Statutes 46:2171, et seq., known as the “Protection from Stalking Act,” was enacted to provide a civil remedy for stalking victims against perpetrators, offering immediate and easily accessible protection. La. R.S. 46:2171. Under the Protection from Stalking Act (the Act), “stalking” means any act that would constitute the crime of stalking under La. R.S. 14:40.2 or cyberstalking under La. R.S. 14:40.3. La. R.S. 46:2172; Scott v. Hogan, 2017-1716 (La. App. 1st Cir. 7/18/18), 255 So.3d 24, 29. However, despite the Act's reference to these criminal stalking statutes, petitions for protection from stalking are not criminal proceedings. Rather, “the sole relevance” of the criminal stalking statutes in the context of a petition filed under the Act is “to provide the definition of stalking.” See Smith v. Dugas, 2019-0852 (La. App. 1st Cir. 2/26/20), 2020 WL 913673, *2 (unpublished).

Louisiana Revised Statutes 14:40.3(B) defines the offense of cyberstalking as follows:

Cyberstalking is action of any person to accomplish any of the following:

(1) Use in electronic mail or electronic communication of any words or language threatening to inflict bodily harm to any person or to such person's child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

(2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying, or harassing any person.

(3) Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person's family or household with the intent to threaten, terrify, or harass. (4) Knowingly permit an electronic communication device under the person's control to be used for the taking of an action in Paragraph (1), (2), or (3) of this Subsection.

Louisiana Revised Statutes 14:40.3(B) does not define the terms “threaten,” “terrify,” or “harass.” Therefore, each must be given its generally prevailing meaning based on context and common usage. See La. Civ. Code art. 11; La. R.S. 1:3; Guitreau v. Kucharchuk, 99-2570 (La. 5/16/00), 763 So.2d 575, 579. “Threat” is defined by Black's Law Dictionary, 11th ed. 2019, as “[a] communicated intent to inflict harm or loss on another or on another's property ․ a declaration, express or implied, of an intent to inflict loss or pain on another” and “[a]n indication of an approaching menace; the suggestion of an impending detriment.” Black's defines “harassment” as “[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose; purposeful vexation.” “Terrify” means “to drive or impel by menacing” or “to fill with terror,” and “terror” means “a state of intense or overwhelming fear.” Merriam-Webster Online Dictionary (Merriam-Webster.com). As used in La. R.S. 14:40.3(B)(2), “threatening,” “terrifying,” and “harassing” are the adjective forms of “threat,” “terrify,” and “harass,” and all three words modify “purpose.”

BURDEN OF PROOF

At a hearing on a protective order, the petitioner must prove the allegations by a preponderance of the evidence. See Head v. Robichaux, 2018-0366 (La. App. 1st Cir. 11/2/18), 265 So.3d 813, 816. Proof is sufficient to constitute a preponderance of the evidence, for the purposes of a protective order, when the entirety of the evidence, both direct and circumstantial, shows that the fact sought to be proved is more probable than not. Head, 265 So.3d at 816.

STANDARD OF REVIEW

A court's decision to issue or deny a protective order is reversible only upon a showing of an abuse of discretion. Additionally, the trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error. Scott, 255 So.3d at 31.

DISCUSSION

We will address Mr. Hendon's first three assignments of error simultaneously as they are interrelated. As noted, Mr. Hendon alleges he was denied due process because the hearing officer failed to allow him to view or object to Mr. Bourg's evidence, refused to allow him to testify or cross-examine Mr. Bourg, and refused to allow him to introduce records into evidence.

Procedural due process safeguards a person's Constitutional rights and requires that a person be given a meaningful opportunity to be heard. Bays v. Bays, 2000-1727 (La. 2/21/01), 779 So.2d 754, 757-58. Pursuant to La. Const. Art. I, § 22, “[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay.” This grant of constitutional authority is tempered by the court's “power to require that the proceedings ․ be conducted ․ in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.” La. Code Civ. P. art. 1631. The trial judge has great discretion in the manner in which proceedings are conducted, and it is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Thomas v. Department of Wildlife & Fisheries, 2018-0869 (La. App. 1st Cir. 10/2/19), 289 So.3d 579, 598, writ denied, 2019-01767 (La. 1/14/20), 291 So.3d 687.

At the hearing, Mr. Bourg testified first, stating that when he was around 20 or 21 he met Mr. Hendon at the gym where he worked, and they began a friendship.² Mr. Bourg acknowledged that they used to “hang out” and that Mr. Hendon thought they were in a relationship. Mr. Bourg said eventually, he began to feel trapped. Mr. Bourg, who at the time of trial was twenty-five years old, testified that it had been two years since he contacted Mr. Hendon, but Mr. Hendon continued to contact him and his girlfriend. Mr. Bourg said Mr. Hendon had been harassing him through email and social media, pretending to be him on media apps, and that people Mr. Bourg did not know that he thinks were connected to Mr. Hendon came to his old address. He pointed out that he brought up his four-year-old son in the emails. He testified, “It's been two years. I don't [want to] deal with this anymore.”

In support of his claims, Mr. Bourg offered printouts of a Facebook account where he contended that Mr. Hendon was pretending to be him; screenshots of text messages he contended are from Mr. Hendon, including several texts to Mr. Bourg's girlfriend; and several emails.

When the hearing officer questioned Mr. Bourg about the nature of his relationship with Mr. Hendon, Mr. Hendon objected, and the hearing officer responded, “I'm asking him questions. You don't get to give me anything until I get to you, okay.” Mr. Hendon responded, “my bad.” Other than this comment, Mr. Hendon never asked to cross examine Mr. Bourg and did not object to the introduction of documents by Mr. Bourg.

The hearing officer then asked Mr. Hendon to testify. During his testimony, Mr. Hendon described an incident where Mr. Bourg was violent towards him and accused Mr. Bourg of home invasion and theft. Mr. Hendon said Mr. Bourg referred to him as his boyfriend. Mr. Hendon attempted to introduce text messages from Mr. Bourg expressing feelings towards him. When Mr. Hendon asked to submit the text messages as well as other evidence, the hearing officer responded, “put it all in the record” and allowed Mr. Hendon to introduce all of his evidence in globo. The messages introduced by Mr. Hendon included threatening and violent language used by Mr. Bourg towards Mr. Hendon. During the hearing, Mr. Hendon stated, “All I'm asking is for you to come over and talk to me and tell me why you ․ lied.” Mr. Hendon said that he was fifty-two years old at the time of trial.

The hearing officer explained to Mr. Hendon multiple times that the only matter in front of the court that day was Mr. Bourg's request for a protective order, and that a protective order in favor of Mr. Bourg was the only order the court had the authority to grant. The hearing officer noted that the messages in evidence, “don't look good for either one of y'all” and “both of you have [said] some pretty terrible things” and have “behaved deplorably.” The hearing officer advised Mr. Hendon that he had a right to file his own protective order.

In this matter, Mr. Hendon was given the opportunity to address the trial court, and he was allowed considerable time and latitude to testify. He did not object to the evidence introduced by Mr. Bourg, and he was given the opportunity to introduce any evidence that he had. Considering the record, we find the hearing officer did not abuse its vast discretion in the manner in which it conducted the hearing. Accordingly, we find no merit to Mr. Hendon's first three assignments of error that he was denied due process during the hearing.

In his final assignment of error, Mr. Hendon contends that the hearing officer erred in making prejudicial statements. Our thorough review of the record simply does not show that the hearing officer was biased or prejudiced against Mr. Hendon, and we find no abuse of discretion by the hearing officer in recommending that the protective order be granted. The testimony and evidence revealed a volatile relationship between Mr. Bourg and Mr. Hendon, where both parties were threatening and aggressive towards each other at times. However, it also proved a pattern of Mr. Hendon continuing to contact Mr. Bourg and his girlfriend despite being asked to stop, and Mr. Hendon continuously threatening to go to the Tangipahoa Parish Sherriff's Office (TPSO) with allegedly incriminating evidence if Mr. Bourg refused to talk to him. Towards the conclusion of the hearing, the hearing officer stated, “The basis of what I'm looking at is all the inappropriate messages that have gone on between the two of you. Okay. And that's enough for me.” We agree. Mr. Bourg introduced several threatening and profanity-laden text messages and emails that Mr. Hendon sent to Mr. Bourg and Rosemary. The following includes excerpts of emails from Mr. Hendon to Mr. Bourg that were admitted into evidence:

From December 21, 2021: “So you can think that this is over but I guarantee you that it is NOT,” This email also mentioned that Mr. Bourg “ghosted” Mr. Hendon and threatened that if Mr. Bourg does not contact Mr. Hendon and spend Christmas with him, Mr. Bourg will be arrested.

From January 17, 2022: “[Y]our little ugly whore...has put a target on her back because I know you were messing around with her this time last year.”

From February 3, 2022: “[Y]ou just gave me the determination to have you put away because you are too much of a (expletives) to talk to me.”

From February 4, 2002: “You must not care about your son or your freedom..,” This email was in reference to turning over information to the TPSO to prosecute Mr. Bourg for alleged crimes.

From February 14, 2022: “Be nice & I'll be nice. If not, then [things] will happen in your world that you have no control over because I will have my finger on the button as I turn your little school girl game into the adult version which jeopardizes both of your freedoms, yours & hers.”

The emails and Facebook messages introduced into evidence along with Mr. Bourg's testimony proved by a preponderance of the evidence, that Mr. Hendon electronically communicated messages to Mr. Bourg repeatedly for the purpose of threatening and harassing Mr. Bourg. Accordingly, Mr. Bourg met his burden of proving entitlement to a protective order under La. R.S. 46:2171, and we find no abuse of discretion by the trial court in granting the July 25, 2022 order of protection.

CONCLUSION

For the foregoing reasons, the July 25, 2022 order of protection is affirmed. Costs of the appeal are assessed to Timothy Hendon.

AFFIRMED.

FOOTNOTES

1.   In his petition, Mr. Bourg referred to a female named Rosemary as his wife, but during the hearing, it was revealed that they were not yet married.

2.   The nature of the friendship between Mr. Bourg and Mr. Hendon is disputed by the parties.

HESTER, J.