Opinion
14-P-1426
06-09-2015
DAVID DAUPHINEE v. TRE BARROS.
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
After a hearing in the District Court, the judge extended a G. L. c. 258E harassment order that had been issued six months earlier. The defendant appeals, arguing that the order was not supported by the evidence. We affirm.
Background. The plaintiff and the defendant were high school students at the same high school. The plaintiff's affidavit in support of the original order recited that the defendant had touched her inappropriately and repeatedly, including touching her "butt," while using "vulgar language" and making "uncomfortable comments about [her] body." The affidavit also stated that she was "not the only girl who has experienced this." At some point, the plaintiff reported the defendant to school authorities for an incident with another student; later that day, when the plaintiff went to speak to a friend who was serving detention, the defendant, who also was serving detention, yelled at her, "rat! rat! rat! [and either] Snitches [or] Bitches get stitches!" After that incident, the plaintiff felt unsafe in his presence and her father sought a harassment order on her behalf. Six months later, on June 13, 2014, the plaintiff sought to have the judge extend the order for six months.
At the extension hearing, the plaintiff testified that, after the original order was issued, she continued to feel "slightly threatened," because of "awkward" interactions with the defendant's girlfriend and the girlfriend's friends. She also understood from her own friends that, while the defendant no longer attended the same high school, he continued to frequent the Foxboro area. She agreed that she and the defendant had had no direct "personal" contact since the first order, and that the defendant apparently lived in Boston. However, she had "seen him on the sidewalk, just driving by." She sought an extension at the recommendation of the local police, and she did not want to "see him [around town] and feel uncomfortable." She specifically asked the judge to issue the order only until the end of the summer. In addition, at the time of the extension hearing, apparently, criminal charges were still pending for the underlying incident where the defendant had threatened her.
Discussion. A protective order under G. L. c. 258E requires a finding of harassment, defined in G. L c. 258E, § 1, as "[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 does in fact cause fear, intimidation, abuse . . . . G. L. c. 258E, § 1." Seney v. Morhy 467 Mass. 58, 60 (2014). A court may extend an order "to protect the plaintiff from harassment." G. L. c. 258E, § 3(d). While we do not substitute our judgment for that of the trier of fact, "[w]e do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." Iamele v. Asselin, 444 Mass. 734, 741 (2005) (citations and quotations omitted).
While the cited case concerned a G. L. c. 209A order, some similar procedural considerations are valid both for 209A and 258E orders.
"The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of [harassment] . . . . Typically, the inquiry will be whether a plaintiff has a reasonable fear of [harassment]" in violation of G. L. c. 258E. Iamele v. Asselin, supra at 739. "In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship." Id. at 740. We also have in mind that an extension "need not be predicated on new incidents of [harassment]." Watson v. Walker, 447 Mass. 1014, 1015 (2006), citing Iamele, supra at 739.
The case is a close one, particularly because the defendant no longer went to the same school and the plaintiff had had no direct personal contact with him. In addition, if the defendant felt ongoing hostility towards the plaintiff, it was conveyed only through third parties. Nevertheless, a threat to inflict bodily harm for "snitching", which is a fair interpretation of the defendant's words, is a serious matter, particularly when criminal charges were still pending. See Commonwealth v. Valentin V., 83 Mass. App. Ct. 202, 203-206 (2013). In addition, the record is clear that the judge, who heard the plaintiff's testimony and had a chance to observe her demeanor, carefully considered whether to extend the order and, if so, for how long. Under all of the circumstances, we cannot say that she was wrong to extend the order for the short period of time requested.
Order dated June 13, 2014, extending G. L. c. 258E harassment prevention order, affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 9, 2015.