Opinion
16-P-785
05-17-2017
COMMONWEALTH v. Eric BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial, the defendant was convicted of criminal harassment, in violation of G. L. c. 265, § 43A(a ). On appeal, he claims that the evidence was insufficient to prove that he committed three separate acts of harassing conduct as required by the statute and, therefore, the Commonwealth failed to meet its burden of proof. For the reasons that follow, we affirm.
He was found not guilty of disorderly conduct, G. L. c. 272, § 53, and intimidation of a witness, G. L. c. 268, § 13B.
Background. We recite the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant and the victim, whom we shall call Sally, were married for fourteen years before divorcing in 2011, and have three children together. At the time of the events giving rise to the charge of criminal harassment, Sally had sole physical custody of the children and the defendant had court-ordered, supervised visitation at a visitation center.
A visit between the children and the defendant had been scheduled for June 14, 2013. However, shortly before the visit was to begin, at approximately 4:00 p.m., Sally learned that the meeting had been cancelled due to the defendant's behavior and, as a result, she did not take her children to the visitation center. A short time later, Sally was in the driveway of her parents' home, where she lived with the children, when she saw the defendant drive up the road toward her. The defendant drove slowly around the rotary at the end of the street and then drove back down the road, staring at Sally the entire time.
Sally saw the defendant a second time while she was cooking dinner approximately an hour and a half later. On this occasion, the defendant drove by the house twice in close succession. First, he drove by slowly and then he drove quickly past the house while honking his horn.
Shortly after 7:00 p.m., the defendant again drove by the house. Sally saw him park his car in the parking lot of a radio station located at the end of the road. At about the same time, two of Sally's relatives arrived at her house and drove her to the entrance of the road to show her that four stuffed animals belonging to her children were hanging from wire nooses in a tree by the side of the road. Sally testified that seeing the defendant drive past her home numerous times and seeing the stuffed animals hanging from the tree made her "extremely scared."
Photographs of the stuffed animals hanging in the tree were admitted as exhibits at trial.
Sally explained that three of the stuffed animals belonged to the children and had a special meaning for them. She further stated that a fourth animal (a red parrot) represented her, but she did not explain why this was so.
As Sally and her relatives were driving away from the tree, the defendant returned. He got out of his car and came toward Sally, yelling. Sally called the police, and Officer James Lebretton of the Plymouth police department arrived soon thereafter. Officer Lebretton attempted to speak to the defendant to no avail. The defendant ignored him and continued to yell at Sally. The defendant followed Officer Lebretton's order to get back in his car, but he remained agitated to the point that Officer Lebretton decided to arrest him.
Discussion. In reviewing a challenge to the sufficiency of evidence, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 377 (quotation omitted).
A conviction for criminal harassment requires proof that "(1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, ‘willfully and maliciously.’ " Commonwealth v. McDonald, 462 Mass. 236, 240 (2012), quoting from G. L. c. 265, § 43A(a ).
The thrust of the defendant's argument concerns the first element. He argues that the conduct at issue consists of one single, continuous episode, rather than three distinct incidents because the evidence failed to establish whether he left Sally's street between 4:30 p.m. and 7:30 p.m.
Although the defendant does not specifically address any of the remaining elements, we have thoroughly reviewed the record and conclude that the evidence was sufficient to meet the Commonwealth's burden on all of them.
Here, the judge, as fact finder, could have found beyond a reasonable doubt that the defendant had engaged in three separate acts of harassing conduct. As we have noted, the defendant (1) drove by Sally's house at 4:30 p.m. while staring at her; (2) drove by the house again at 5:30 p.m. twice in quick succession; and (3) hung stuffed animals (belonging to his children) from wire nooses in a nearby tree at approximately 7:30 p.m. Each of these incidents were separated by an hour, at a minimum, and each was calculated to "seriously alarm" Sally.
Although our cases have not established a specific amount of time that must elapse between harassing acts for them to be sufficiently discrete, acts committed during a single afternoon have been deemed sufficiently distinct to warrant a conviction of criminal harassment. Cf. Commonwealth v. Kulesa, 455 Mass. 447, 451 (2009) ("defendant's two telephone calls to the victim's sister" on one afternoon were sufficient for two of the three required acts). In any event, where, as here, the acts were separated by one and one-half hours and two hours, respectively, the Commonwealth met its burden of proof.
A similar temporal analysis has been applied in cases under the stalking statute, G. L. c. 265, § 43(a ), see Commonwealth v. Julien, 59 Mass. App. Ct. 679, 685 (2003) (three incidents, two falling on same day, sufficient for stalking statute), and the annoying telephone calls or electronic communications statute, G. L. c. 269, § 14A, compare Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 949 (1991) (eleven telephone calls within a seven-minute period "may have had harassing effect" but totality of the evidence "preclude[d] any reasonable conclusion that the sole purpose of his calls was to harass").
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Judgment affirmed.