Opinion
21-P-803
06-10-2022
J.T. v. D.D.
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 appeals from a civil harassment prevention order issued against him pursuant to G. L. c. 258E, claiming that the evidence was insufficient to support the issuance and extension of the order. As the record does not support a finding that the defendant acted with the intent of causing "fear, intimidation, abuse or damage to property" toward the plaintiff on three occasions, G. L. c. 258E, § 1, we remand the case to the District Court for entry of an order vacating the harassment prevention order.
Background.
The defendant and the plaintiff were neighbors in an apartment building in Burlington, Vermont in 2015. During that time, the defendant accused the plaintiff multiple times of hacking into his wireless network, confronting her with his mother on one occasion. Because of the defendant's behavior, the plaintiff terminated her lease early and moved out of her apartment with the landlord's permission.
Four years later in 2019, the defendant reported a sexual assault to the Burlington Police, alleging that he was drugged and assaulted in the plaintiff's apartment in 2015. As a result, a detective from Burlington contacted the plaintiff, and she learned that the defendant also accused her of conducting "occult rituals" while living in the apartment building. The defendant's allegations did not result in any charges.
After several years of no contact, the defendant attempted to contact the plaintiff multiple times from October 2020 to April 2021. By then, the plaintiff had moved to Massachusetts, where her parents lived. On two occasions, the defendant sent her flowers and letters, sending the first package to her father's address and the second to her mother's address. The letters, which were "romantic" in nature and devoid of any threats, made the plaintiff feel "uncomfortable," "anxious," and "freaked out." The defendant also called the plaintiff's cell phone, sent her text messages, and left voice messages, asking her to contact him. The plaintiff did not respond to any of the defendant's communications. Instead, she reported his actions to the police and subsequently filed a G. L. c. 258E complaint against him in the Newburyport District Court.
Following an ex parte hearing, the District Court judge entered a harassment prevention order against the defendant on April 22, 2021. On May 19, 2021, after a hearing where both parties were represented by counsel, the judge granted a one-year extension of the order.
Though the one-year order was due to expire on May 19, 2022, and counsel for the plaintiff advised at oral argument that his client did not intend to seek a further extension of it, expiration of such an order does not render moot an appeal from its issuance. See Seney v. Morhy, 467 Mass. 58, 61-62 (2014).
Discussion.
We review an order issued pursuant to G. L. c. 258E for whether the judge could conclude "by a preponderance of the evidence, together with all permissible inferences, that the defendant had 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.'" Petriello v. Indresano, 87 Mass.App.Ct. 438, 444 (2015), quoting G. L. c. 258E, § 1. "[E]ach of the three willful and malicious predicate acts aimed at a specific person must be either a 'true threat'. . . or 'fighting words.'" A.R. v. L.C., 93 Mass.App.Ct. 758, 760 (2018), quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). "True threats" are words or actions that constitute a "serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (citation omitted). 0'Brien, supra at 423. "[O]nly a threat intended to cause fear of physical harm (or physical property damage) can qualify as one of the three predicate acts for purposes of c. 258E." A.R., supra.
The defendant argues that none of his alleged acts qualify as "true threats" under 0'Brien, 461 Mass. at 423, and they do not show any malicious intent or an intent to cause "fear, intimidation, abuse, or damage to property" to the plaintiff. G. L. c. 258E, § 1. Reviewing the record, we conclude that the defendant's alleged acts do not demonstrate an intent to cause fear of physical harm to the plaintiff or her property. While his various accusations against the plaintiff may support an intent to cause legal and reputational harm, they do not constitute a threat of physical harm. In the alleged in-person confrontation by the defendant and his mother about hacking into his wireless network, there was no indication that any threats of physical harm were made or implied. Additionally, the record is devoid of any evidence that the defendant threatened harm to the plaintiff, her family, or their properties in his recent unwanted attempts to contact her, nor did he ever attempt to visit her in person. While we acknowledge that the defendant's actions caused, reasonably so, distress and discomfort to the plaintiff, "conduct that might be considered harassing, intimidating, or abusive in the colloquial sense . . . [is] not adequate to meet the standard spelled out in 0'Brien." A.R., 93 Mass.App.Ct. at 7 61. We therefore remand the case to the District Court for entry of an order vacating the harassment prevention order against the defendant.
So ordered.
Green, C.J., Kinder & Neyman, JJ.
The panelists are listed in order of seniority.