Opinion
14-P-820
04-28-2016
COMMONWEALTH v. JOHN NAZZARO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of criminal harassment, G. L. c. 265, § 43A(a). On appeal, he claims that (1) the motion judge erred in denying his motion to dismiss the complaint for lack of probable cause, (2) the evidence was insufficient to show that he acted willfully and maliciously toward the victim and that a reasonable person would have suffered substantial emotional distress as a consequence of his conduct, and (3) the conviction should be vacated and the charge dismissed because the criminal harassment statute is unconstitutional on its face and as applied to him. We affirm.
1. Motion to dismiss. There is no merit to the defendant's claim that he was entitled to dismissal of the criminal complaint. Viewed in its totality, the evidence in the application for the complaint, which contained two police reports detailing the defendant's conduct and a statement from the victim, "set forth 'reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.'" Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting from Commonwealth v. Roman, 414 Mass. 642, 643 (1993). We have reviewed the information that was before the clerk magistrate, including the presentations made by the police officer seeking the complaint and the defendant, and we conclude that it was more than sufficient to meet the standard of probable cause.
2. Sufficiency of the evidence. a. Facts. The defendant's wife was a patient at the cancer treatment clinic where the victim was employed as a nurse. After the defendant's wife passed away in January, 2011, the victim sent a condolence card to the defendant, as was common practice for clinic employees.
The victim received a response from the defendant on February 1, 2011, thanking her for her sentiments. This letter was addressed to the victim at the clinic and, as she testified, it did not alarm her. Approximately two weeks later, on February 14, 2011, the defendant sent another letter to the victim at the clinic. The second letter restated the defendant's appreciation for the victim's condolence card and invited a response, expressing his intention that the defendant and the victim "will get together sometime in the near future." This letter made the victim "very uncomfortable." The victim did not respond to either letter.
On March 4, 2011, the victim received at the clinic a hand-delivered, third letter from the defendant. In this letter, the defendant stated, "[M]y previous notes failed to elicit a response from you but I am still thinking about my brief encounters with you over the last year and a half even if in a professional capacity." The letter also expressed a desire that on a "warm and sunny" day, "a car will slow down and the window will roll down, and a woman I know will smile a becoming smile." This letter alarmed the victim and caused her to feel "distraught." She shared this letter with her superiors at the clinic, and the security department at the clinic contacted the Burlington police department. On March 7, 2011, a police officer contacted the defendant by telephone and asked him to stop sending letters or cards to the clinic because the correspondence was "making some of the employees there a little uneasy." The defendant apologized and agreed to stop sending letters to the clinic.
On March 18, 2011, a fourth letter addressed to the victim arrived by mail at the clinic. The victim was not at work that day, but her supervisor called her to obtain permission to open the letter. The letter described the defendant's recent daily activities and concluded, "Until I write again." The same police officer called the defendant a second time on March 22, 2011, explaining that the victim "feels she's being harassed." The defendant told him to "mind [his] own business," claiming that he was "not bothering anybody."
On April 28, 2011, the defendant visited the clinic and asked to see the victim. When he was told that she was out of the country, he left, but he returned later in the day and asked again to see her. When he was told a second time that she was not there, the defendant left a business card for the victim. Then, on June 8, 2011, the victim received at the clinic a birthday card from the defendant, even though it was not her birthday. The card frightened the victim and she felt as though "[h]e was not going to let [her] go."
The defendant testified on his own behalf. He acknowledged sending correspondence to the victim even after it became clear that she was not going to respond. He also conceded that the police told him to stop contacting the victim. He claimed, however, that he had no reason to believe that the victim was personally receiving his letters and that he believed it was not her but her employer who wanted the correspondence to stop.
b. Discussion. To establish guilt under the criminal harassment statute, the Commonwealth must prove 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. Kulesa, 455 Mass. 447, 452 (2009), quoting from G. L. c. 265, § 43A(a).
The defendant claims that there was a failure of proof as to the fourth and fifth elements of the offense. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), we disagree. The evidence established beyond a reasonable doubt not only that the victim was seriously alarmed, but also that where, as here, the defendant continued to pursue communication with the victim even after being told to stop, "any reasonable person would be greatly alarmed and experience severe emotional distress if subjected to such similar circumstances." Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 294 (2006) (evidence was sufficient to permit trier of fact to find elements of criminal harassment beyond a reasonable doubt where defendant's conduct in sending seven letters to victim while incarcerated was both willful and malicious, and where defendant continued to do so after being served with no trespass order and being told by prison officials he should have no contact with victim or her family). See Commonwealth v. Paton, 63 Mass. App. Ct. 215, 215-217, 219-221 (2005) (evidence sufficient to support conviction of criminal harassment where defendant regularly visited bar where victim was employed as waitress and stared at her without speaking to her, and then appeared unexpectedly at places where victim was shopping, getting coffee, and exercising).
To the extent the defendant challenges the sufficiency of the evidence as to the remaining elements of the offense, that challenge fails. It is undisputed that the defendant attempted to contact the victim specifically. Moreover, the victim's testimony establishes that she was seriously alarmed by the defendant's repeated attempts to contact her. She testified that receiving the correspondence, some of which was delivered in person by the defendant, was "just pushing [her] to the point that [she] was about to have a meltdown almost every day," that she felt unsafe, that she felt as though it would it never end, and that she sought professional counseling to cope with her fear.
3. Constitutional challenge. The defendant's claim that the criminal harassment statute is unconstitutional on its face is foreclosed by Commonwealth v. Johnson, 470 Mass. 300, 302 (2014). In that case, the Supreme Judicial Court rejected the very same argument the defendant makes here and held that the statute "is not unconstitutional on its face." Ibid.
The defendant's challenges to the constitutionality of the statute were raised for the first time during his closing argument and, as a result, were not considered by the trial judge.
The defendant's claim that the statute is unconstitutional as applied to him is similarly unavailing. Because the defendant's conduct was "speech or writing used as an integral part of conduct in violation of a valid criminal statute," the criminal harassment statute is not unconstitutional as applied to him. Id. at 309.
To the extent that we do not address the defendant's other contentions, "they 'have not been overlooked. We find nothing in them that requires discussion.'" Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Green, Vuono Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 28, 2016.