Opinion
16-P-624
04-06-2017
J.P. v. J.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a one-year harassment prevention order entered pursuant to G. L. c. 258E, § 3(a ). He makes two arguments on appeal. First, he contends that there was insufficient evidence of three acts by him satisfying the requirements of the statute. Second, he argues that due process was violated by irregularities during the evidentiary hearing. We affirm.
Although the defendant filed a notice of appeal from the judge's allowance of the plaintiff's posthearing motion to modify and supplement the record in this case, the defendant has not briefed any issue regarding that motion. Any argument concerning the allowance of that motion is, therefore, waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Adoption of Zak, 90 Mass. App. Ct. 840, 842 n.4 (2017).
1. Evidence of three or more acts. The defendant argues the plaintiff failed to meet his burden to establish that the defendant committed "[three] or more acts of willful and malicious conduct aimed at [the plaintiff] committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. Sensibly, the defendant acknowledges that the episode in which he attacked and threatened the plaintiff at the Lowell Quick Mart falls within the ambit of the statute. He challenges, however, the remaining two incidents identified by the plaintiff. As to the first, the defendant contends there was insufficient basis upon which to find that he was the driver of the car that drove by the plaintiff's house. As to the second, he contends there was insufficient basis upon which to find he was the sender of the threatening cellular telephone text messages.
The defendant also challenges the text messages on authentication grounds. However, in c. 258E proceedings as in G. L. c. 209A proceedings, "the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on." Frizado v. Frizado, 420 Mass. 592, 597–598 (1995). See S.T. v. E.M., 80 Mass. App. Ct. 423, 429 (2011) ; F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015). See also Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:03 (2011) ("The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility, subject to considerations of fundamental fairness"). Even were that not the case, the testimony of the plaintiff and his girl friend, together with the content of the messages themselves, were sufficient basis upon which to establish the authenticity of the text messages. See Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977) ("[P]roof of authenticity usually takes the form of testimony of a qualified witness either [1] that the thing is what its proponent represents it to be, or [2] that circumstances exist which imply that the thing is what its proponent represents it to be" [quotation omitted] ).
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"In reviewing a civil harassment order under G. L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed '[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse, or damage to property.' The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being ‘characterized by cruelty, hostility or revenge,’ and that each act was intended by the defendant to place the plaintiff in ‘fear of physical harm or fear of physical damage to property.’ In the determination whether the three acts ‘did in fact cause fear, intimidation, abuse or damage to property,’ it is ‘the entire course of harassment, rather than each individual act, that must cause fear or intimidation.’ " A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015) (citations omitted). See V.J. v. N.J., 91 Mass. App. Ct. 22, 28 (2017) ("Given the overlapping nature of the defendant's conduct in the second and third act, as well as the entire course of conduct, and not viewing each act in isolation ... it was reasonable for the judge to infer the existence of the plaintiff's fear of physical violence as well as the defendant's malicious intent").
Here, the evidence (together with the reasonable inferences to be drawn from it) was sufficient to permit the judge to find that the defendant was the driver of the car in the first incident, and that he was the sender and author of the text messages. The plaintiff's affidavit stated that the defendant was the driver, and this averment was buttressed both by the police report and the girl friend. This, together with the location of the incident (in front of the plaintiff's house), the presence of the girl friend (the defendant's former girl friend with whom the defendant had a long-standing history of conflict), the absence of any reason for the defendant (a New Hampshire resident) to be outside the plaintiff's home, and the proximity (in time, nature, and character) to the Quick Mart incident, were sufficient bases for the judge's finding. These same factors, augmented by the content of the text messages, which revealed knowledge of a wealth of personal information about the plaintiff, referred to New Hampshire (a place with which the plaintiff had no connection but in which the defendant lived), and the nature of the threats made, supplied ample basis upon which to conclude that the defendant authored and sent the text messages. Given the totality of circumstances, the judge did not err in finding the defendant committed three acts of wilful and malicious conduct aimed at the plaintiff.
2. Due process. The defendant argues that due process was violated when (1) the judge viewed a surveillance video that was displayed in a manner that did not permit the defendant to view it at the same time, and (2) the judge questioned the witnesses herself rather than permitting his counsel to do so. No objection was lodged, and both arguments are accordingly waived. See Adoption of Astrid, 45 Mass. App. Ct. 538, 542 (1998). Even were that not the case, we see no merit to the claims. While the better practice would have been to display the video in a way for all parties to be able to watch it simultaneously (as the plaintiff concedes), the defendant raised no objection at the time, he was given an opportunity to challenge the video with his own narrative of the events, and he has not identified any way in which his case would have been presented differently had he been allowed to watch the video simultaneously with the judge. Regarding his supposed inability to question his own witnesses and cross-examine the plaintiff, the defendant, again, never asked for this opportunity but rather acquiesced in the procedure employed by the judge. Moreover, the judge never prevented the defendant from questioning any of the witnesses. The defendant appeared content to permit the judge to conduct the examination of the witnesses herself, jumping in where he thought necessary. In these circumstances, particularly in light of the relatively informal nature of c. 258E proceedings, we think the requirements of due process were satisfied. See Matter of Kenney, 399 Mass. 431, 435 (1987) ( "The fundamental requisite of due process is an opportunity to be heard at a meaningful time and in a meaningful manner").
Harassment prevention order affirmed.
Order allowing motion to correct record affirmed.