Opinion
19-P-1064
12-16-2020
E.S. v. A.B.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, A.B., appeals from a harassment prevention order issued pursuant to G. L. c. 258E, § 1, after a hearing on May 13, 2019. The defendant claims that the evidence was insufficient to prove three or more acts of willful and malicious conduct that qualify for harassment under G. L. c. 258E. She points out, in particular, that the plaintiff did not actually witness all the acts that the plaintiff attributes to the defendant. For the reasons that follow, we affirm.
"The purpose of proceedings under c. 258E, like those under c. 209A, is 'protective, not penal.'" A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017), quoting A.T. v. C.R., 88 Mass. App. Ct. 532, 540 (2015). "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 plaintiff bore her burden of proving 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.'" A.T., supra at 535, quoting G. L. c. 258E, § 1, definition of "Harassment," inserted by St. 2010, § 23.
From the plaintiff's affidavit and the testimony at the hearing, the judge could have found the following facts. The parties are "condo neighbors." During the year or so prior to the May 2019 hearing, their relationship was acrimonious. Between July and August of 2018, the plaintiff's pumpkin patch was trampled, her sunflowers were knocked over and pulled out from the root, and her tomato plants and the cages that had kept them upright were knocked over, and "twisted out." The plaintiff did not observe who did these acts, but suspected the defendant. Then, on April 23, 2019, the plaintiff's hyacinth bulbs and flowers were pulled up in her garden. The plaintiff had a video recording (video) of the defendant performing the April 23, 2019 property damage. The judge viewed the video at the hearing.
In addition, the plaintiff asserted that the defendant yelled and screamed at the plaintiff, banged on her door, and persistently rang her doorbell so that she could continue yelling and screaming at the plaintiff. The plaintiff also accused the defendant of spreading the plaintiff's trash over the ground. The plaintiff's affidavit stated that she feared the defendant's behavior would escalate to more serious property damage or personal injury.
The defendant testified briefly; she did not deny that she was the person seen on the video or that she damaged the plaintiff's gardens on other occasions.
Discussion. The defendant asserts that the judge erred in concluding that the plaintiff bore her burden of proving three incidents of willful and malicious conduct. To the contrary, the evidence and the reasonable inferences therefrom demonstrate at least three incidents of property damage, alone; the trampled pumpkin patch, the destroyed sunflowers, the twisted tomato plants, and finally, the flowers destroyed in the April 2019 video.
The defendant argues that this case is like R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019), where we held that there was insufficient evidence that the defendant had sent the plaintiff harassing e-mails from fake e-mail accounts, but R.S. is clearly distinguishable. There the defendant denied sending the harassing e-mails, the harassing e-mails were "completely different in form and substance" from the nonharrassing e-mails that the defendant had admitted sending from his own e-mail account, and there was no evidence connecting the fake accounts to the defendant. Id. In contrast, here the defendant was observed on video committing one of the harassing acts, which was consistent with the prior acts of property damage. Further, to the extent the defendant denied taking such actions, it is clear that the judge did not credit her denials. See Commonwealth v. Quigley, 391 Mass. 461, 463 (1984) ("In the absence of subsidiary findings on the issue of credibility, we assume that the judge's determination was adverse to the losing party," in this case, the defendant). The video and testimony, together with the reasonable inferences the judge was permitted to draw, were sufficient for the judge to conclude that there were three or more acts of willful and malicious conduct aimed at the plaintiff and committed with the intent to cause fear, intimidation, abuse or damage to property, and that did in fact cause damage to property.
Order entered May 13, 2019, affirmed.
By the Court (Henry, Sacks & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 16, 2020.