Opinion
21-P-458
02-16-2022
M.M. v. G.K.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, G.K., appeals from a harassment prevention order obtained against him by the plaintiff, M.M., pursuant to G. L. c. 258E. The defendant's principal claim is that there was insufficient evidence to support three qualifying acts of harassment under the statute. Because we conclude that the record fails to support that the defendant engaged in at least three separate acts directed at the plaintiff that were intended to, and did, cause the plaintiff fear, intimidation, abuse, or damage to property, we reverse.
Background. At a hearing before a Superior Court judge, the plaintiff, who was represented by counsel, claimed that he had been harassed and intimidated by the defendant over the past year. He testified that the parties resided in rooms on the same floor of a boarding house in Hyannis and that the defendant's pending eviction from the property caused his harassing behavior to "ramp[ ] up toward[ ] everybody at the house."
The plaintiff described an incident on December 13, 2020, when he was awoken by the defendant "screaming at the top of his lungs" at one of their elderly landlords, who had arrived at the property to perform maintenance. The plaintiff used his cell phone and recorded the shaking of the house caused by the defendant yelling at the landlord.
Sometime around December 29, 2020, the plaintiff was walking down the hall when he was confronted by the defendant. The defendant was barely clothed, with only a black garbage bag around his waist. The defendant glared at the plaintiff and began to approach him, yelling at him to shut up and accusing him of conspiring with the landlords and being "out to get him." The plaintiff retreated to his bedroom and closed the door. The defendant followed him. He continued to yell at the plaintiff, banging on his door, and stomping heavily in the hallway.
On another unspecified date, the plaintiff and a friend met at the residence to go fishing for the day. The defendant came out of the front door and glared at them in a "very threatening fashion," causing the plaintiff fear.
The plaintiff's friend also testified about the interaction and stated that the defendant never said a word to them but was a large man and had a "menacing look."
The plaintiff recounted other bizarre behavior by the defendant, such as frequently stomping around the upstairs hallway of the home, leaving the water running for hours so the landlords would incur costly water bills, blowing his nose "in the weirdest way" so that "the entire house shakes," yelling at the landlords and others who had been hired to repair the premises, and continually threatening the plaintiff and landlords that he would call the police or file a lawsuit against them. The plaintiff's attorney also sought to introduce two videotapes as exhibits: a recording taken by the plaintiff during the December 13 incident between the defendant and the landlord and a recording from an incident in July 2020, where the defendant screamed at the plaintiff's other elderly landlord.
The defendant, representing himself, objected to the introduction of the videotape evidence and filed and argued a motion to strike. He did not call any witnesses but cited case law to support his position that the evidence did not warrant a finding of harassment.
The judge allowed the defendant's motion to strike the videotape evidence. He then indicated that despite the videotapes being stricken, "other evidence exists (the plaintiff's testimony and his affidavit) ... for the plaintiff to meet his burden for the issuance of a 258E Order."
Discussion. The standard for reviewing a harassment prevention order is "whether the judge could find, 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 and that [did] in fact cause fear, intimidation, abuse or damage to property.’ " Petriello v. Indresano, 87 Mass. App. Ct. 438, 444 (2015), quoting G. L. c. 258E, § 1. See O'Brien v. Borowski, 461 Mass. 415, 419-420 (2012). The plaintiff bears the burden of proving that the three qualifying acts were "maliciously intended" or in other words, "characterized by cruelty, hostility, or revenge." A.T. v. C.R. 88 Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. Because the judge did not make specific findings, we review the entirety of the record. The crucial question in this case is whether the evidence supports three qualifying acts of harassment.
The evidence of the December 29 incident where the defendant confronted the plaintiff while garbed in a trash bag was sufficient to constitute a qualifying incident. Since the judge struck the plaintiff's video evidence, this court is limited to the testimony at the hearing and to the plaintiff's affidavit in discerning whether the other alleged incidents suffice. Even assuming that the testimony regarding the front lawn incident was sufficient to find a second act of harassment that fit within the statute, the plaintiff has failed to adduce evidence of a third act that qualifies. While the plaintiff is understandably concerned by the defendant's behavior, the remaining conduct he testified to was either nonactionable (like the defendant's bizarre behaviors and the glaring incident) or conduct not directed toward the plaintiff but rather toward the landlords. See Seney v. Morhy, 467 Mass. 58, 63-64 (2014).
Where, as here, the record does not support three separate and distinct actions of harassment by the defendant directed at the plaintiff, the harassment prevention order should not have issued. No other issue is before us in this appeal.
Harassment prevention order dated January 15, 2021, vacated.