Opinion
15-P-1250
03-03-2016
DERIC WICKER v. HENRY MONIZ.
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
The defendant, Henry Moniz, appeals from an order dated July 22, 2015, extending the c. 258E harassment prevention order (HPO) against him. We affirm.
It is implicit in the judge's order that he found, based upon the hearing testimony, that Moniz, motivated by hostility, wilfully committed three acts aimed at plaintiff Deric Wicker, each with the intent to cause Wicker to experience fear or intimidation, and that those acts, considered together, did in fact cause fear or intimidation. See O'Brien v. Borowski, 461 Mass. 415, 426 (2012). As required by the statute, the testimony established three separate incidents: one in which Moniz threatened to shoot Wicker with a gun; another in which Moniz came into Wicker's yard, stepped onto his deck, screamed at his family, and had to be chased away by Wicker; and a third in which Moniz told the town's animal control officer that, if nothing was done about Wicker's dogs, he would "put [them] down."
Moniz nevertheless contends that the order was not justified. He first argues that the threat to use a gun was too "specious and incredible" to serve as one of the predicate acts for the HPO; however, credibility was for the judge to assess. Moniz also contends that the threat to harm the dogs cannot be a predicate act, because it was not made to Wicker directly; however, the judge rationally could find that Moniz intended that his statements would be communicated to Wicker. Cf. Commonwealth v. Walters, 472 Mass. 680, 693-694 (2015) (discussing cases under criminal stalking statute, G. L. c. 265, 43[a][2], involving threats intended to be relayed to victim by third parties). Contrary to Moniz's characterization of his statements to the animal control officer, Moniz did not simply report that the dogs were dangerous; rather, he threatened to do harm to the animals. The judge rationally could find this to be an act of intimidation.
Other arguments made by Moniz also fail. In the context of the parties' ongoing hostile relationship, the judge could infer that Moniz possessed the intent required by the statute. The judge also could credit Wicker's testimony that he was in fear of Moniz. It was uncontroverted that Moniz possessed several firearms, and Wicker testified to his concern that Moniz could "snap."
This is the third case heard in this court involving these feuding neighbors. The records in these cases suggest that both sides have added fuel to the fire. What began as a dispute about the Wickers' dogs running loose has ended up in dueling HPOs, proceedings before the board of selectmen, and attempts to invoke criminal process. It appears that the Wickers now have a fence to restrain the dogs. With that step having been taken, one would hope that the intensity of the parties' antagonism can subside, and that further court proceedings will be unnecessary.
Order extending c. 258E harassment prevention order affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 3, 2016.