Opinion
16-P-932
05-12-2017
L.S. v. E.V.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, E.V., appeals from the June 17, 2016, extension of a harassment prevention order obtained against him by L.S. pursuant to G. L. c. 258E. We affirm, concluding that L.S. proved, by a preponderance of evidence, that E.V. engaged in three separate malicious acts that were intended to, and did, cause her fear, intimidation, abuse or damage to property. See G. L. c. 258E, § 1.
The plaintiff, L.S., did not submit a brief in this appeal.
The parties were in a dating relationship for one to two years before they were married in Las Vegas on March 8, 2015. The marriage ended roughly two weeks later. Shortly thereafter, E.V. came to believe that L.S. had been unfaithful to him, and he began to send insulting e-mails and text messages to L.S. and members of both his family and hers. There was also a protracted dispute over property during divorce proceedings in the Probate and Family Court.
L.S. filed her complaint for protection from harassment on June 1, 2015, accompanied by an affidavit and printouts of text messages and e-mails. The initial order was granted ex parte on June 2, 2015, and extended for the first time on June 12, 2015, after a hearing at which E.V. appeared with counsel. E.V. did not appeal the first extension of the order, and its correctness is not before this panel.
At the second extension hearing held June 17, 2016, both parties appeared with counsel and testified. Also in evidence were L.S.'s 2015 affidavit and its attachments. Without making findings, the judge extended the order for one year. On appeal, E.V. challenges the sufficiency of the evidence in support of the extension, as well as certain of the judge's evidentiary rulings.
The judge stated that she was extending the order "based on [her] findings regarding the law of [c]hapter 258E as applied to the credible evidence," but did not elaborate on the evidence she found to be credible.
Sufficiency of the evidence. Because the judge did not make specific findings, we review the record for evidence from which the judge could have found that the defendant's conduct involved "[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 or damage to property." G. L. c. 258E, § 1. See V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017).
a. Evidence of harassment. The record contains much evidence of general hostility between the parties, including insults and attempts by E.V. to smear L.S.'s reputation and ruin her business. At the outset, of course, we recognize that instances of speech may not lawfully support a harassment prevention order unless they fall outside the protections of the First Amendment to the United States Constitution, either because they are "fighting words" or "true threats." See O'Brien v. Borowski, 461 Mass. 415, 423-424 (2012) ; Seney v. Morhy, 467 Mass. 58, 63 (2014). We presume that the judge below did not rely on instances of protected speech in extending the harassment prevention order. See Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000) (appellate court presumes that judge in bench trial correctly instructed herself on law).
The record before us contains additional testimony, described in detail below, that the judge was entitled to credit and that was sufficient to establish at least three separate acts supporting an overall finding of harassment.
1. January 19, 2016, encounters at the courthouse. L.S. testified that during the divorce proceedings, E.V. walked up to her and her father, who were seated on a bench outside the courtroom. He stated to her father, in L.S.'s presence, "I'm going to have all three of your children raped in the ass by a black man with HIV so he can infect them." Later that same day, E.V. walked up to L.S., leaned over toward her father, and said, "I'm going to have your children fucked so hard."
These two statements are not protected speech, because they are true threats—specific expressions of an intent to physically harm L.S. by inducing another person to rape her. "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." O'Brien, 461 Mass. at 423, quoting from Virginia v. Black, 538 U.S. 343, 359-360 (2003). If the judge found credible L.S.'s testimony regarding these statements, she was warranted in counting them as separate acts of harassment. There is no way to characterize these statements as anything but malicious, as they were clearly motivated by "cruelty, hostility, or revenge." G. L. c. 258E, § 1. And, having been spoken so that L.S. could hear them, they could be found to have been intended to place L.S. in fear. Indeed, L.S. testified at the extension hearing to being "in fear that [E.V.] would do something or have someone do something to [her] as he threatened," "[e]ven coming here today," she was still in fear of E.V., and if she "were to run into him without a protection order, [she] would be in fear for [her] life."
It need not be proven that each act of harassment actually caused fear, intimidation, abuse, or damage to property, so long as the acts did so when "considered together." O'Brien, 461 Mass. at 426 & n.8.
2. Property damage following separation. L.S. testified that after their separation, while at their condominium in South Boston, E.V. had damaged several items of her personal property, including a glass console that had been kicked in, and rugs ruined by substances spilled on them. Damage to property is an act that can support a finding of harassment. See G. L. c. 258E, § 1. L.S. testified that she had left her belongings in the unit and abandoned the condominium "for safety reasons." The evidence in the record of the bitter dispute between the parties over personal and real property supports a reasonable inference that the property damage caused by E.V. was maliciously aimed at L.S. and intended to place her in fear of further property damage.
3. Throwing of liquor bottle. L.S. testified that prior to their separation E.V., "while intoxicated ... threw a Jack Daniels bottle ... [and] it landed about this far from [her] head ..." L.S. testified that E.V. did this while in a temper. Crediting her testimony, a reasonable factfinder could conclude that E.V.'s actions were intended to place L.S. in fear of bodily injury.
4. Smashing of glasses at surprise party. L.S. testified that she threw a surprise party for E.V. prior to their break-up and had special glasses custom-made for the occasion. E.V. "took all those glasses and smashed them in the hallway to the point where [L.S.] locked [herself] in [the] master bedroom bathroom with both of the dogs ... [she] was on the phone with a friend and feared for [her] life." Testifying about this occasion, L.S. made clear that E.V.'s conduct placed her in fear for her physical safety. Again, malicious intent to cause fear of physical harm or property damage could reasonably be inferred from E.V.'s conduct.
In sum, there was sufficient evidence for the judge to find that, between the two courthouse incidents in January, 2015, and the three other incidents detailed above, there were at least three and as many as five incidents of harassment, and thus that the harassment prevention order should be extended.
b. Evidentiary issues. E.V. also claims error in a host of evidentiary rulings made by the judge, as well as general limitations on cross-examination of L.S. by E.V.'s attorney. With respect to most of these claims, however, he makes no specific arguments on appeal; they are therefore waived. See Atwater v. Commissioner of Educ., 460 Mass. 844, 853 n.8 (2011) (arguments not developed beyond mere citation do not rise to level of appellate argument and are waived); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
E.V.'s brief contains numerous transcript citations assertedly in support of his claims that the judge's various rulings were "made without any reasoning, basis, or law provided, without a full response being allowed ... and were not accurate based on the objections made, the law of the [Commonwealth] and a correct assessment of the evidence." He has not offered explanations connecting those cited portions of the record to any purported legal errors, and therefore we are left to speculate as to the substance of his particular complaints. We decline to do so.
We address the two claims E.V. has developed in somewhat more detail. First, he argues that it was error for the judge to exclude from evidence what his attorney proffered as a certified copy of a criminal court docket relating to the alleged encounters between L.S. and E.V. outside the courtroom on January 19, 2016. The judge concluded that the document, a certified copy of a single page of a docket sheet, was missing key pieces of information and was not a certified court record.
The judge "declined to find that a one sheet paper ... that does not indicate the criminal charge or charges is a certified copy of a court record, and for that reason alone it is not admissible."
The document was incomplete on its face. It showed only that a criminal complaint against E.V. had been dismissed without prejudice, on his motion. It showed nothing about the nature of the charges or the reason for their dismissal. It provided no support for E.V.'s claim that the charges against him grew out of the January, 2016, incidents, or that they were "dismissed for lack of probable cause," let alone his claim that the incidents never occurred. Accordingly, the document was irrelevant, and there was no error in declining to admit it.
Second, E.V. claims error in the judge's refusal to admit a certain hearing transcript. L.S. had testified at the renewal hearing that her attorney, at a hearing in the parties' divorce case, had informed a different judge about E.V.'s statements outside the courtroom on January 19, 2016, and that that judge had advised E.V. to seek counseling. E.V.'s attorney then attempted to introduce a transcript of the January 19, 2016, hearing in the divorce case, to show that the incidents were in fact not mentioned at that hearing (and therefore, inferentially, that the incidents never occurred). The judge sustained L.S.'s attorney's objections.
Although the full basis for those rulings is not entirely clear, we conclude that the transcript could properly have been excluded as irrelevant. Despite some initial confusion as to dates, L.S.'s testimony at the extension hearing was that while the incidents themselves had occurred while the parties awaited a hearing on January 19, they were not discussed with the judge in the divorce case until the close of the final hearing in that case, which hearing the parties agreed occurred on January 21, 2016. Thus, that the transcript of the January 19, 2016, hearing did not mention the incidents was not relevant; it had no rational tendency to disprove L.S.'s testimony that the incidents were mentioned during a hearing two days later.
The transcript of the January 19, 2016, hearing does not mention any incidents outside the courtroom. It also indicates that although the parties had expected to finalize the divorce that day, a last-minute dispute over personal property prevented them from doing so.
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Conclusion. The June 17, 2016, extension of the harassment prevention order is affirmed.
So ordered.
Affirmed.