Com. v. Wotan

• Decision Date: 28 March 1995
• Docket Number: No. 94-P-811,94-P-811
• Citation: 643 N.E.2d 62,37 Mass.App.Ct. 727
• Parties: COMMONWEALTH v. Vivian WOTAN. 1
• Court: Appeals Court of Massachusetts

Page 62

643 N.E.2d 62

37 Mass.App.Ct. 727

COMMONWEALTH v. Vivian WOTAN. ¹

No. 94-P-811.

Appeals Court of Massachusetts Norfolk.

Argued Sept. 27, 1994.

Decided Dec. 16, 1994.

Further Appellate Review Denied Jan. 24, 1995.

Further Appellate Review Granted on Reconsideration March 28, 1995.

Kimberly Homan, Boston, for defendant.

Robert C. Cosgrove, Asst. Dist. Atty., for the Com.

Before BROWN, KASS and FINE, JJ.

KASS, Justice.

From September 3, 1992, through September 21, 1992, Francine and Arnold Kegan ² placed a trap on their home telephone in Brookline to trace annoying telephone calls that they had been receiving over a period of years. During that period, two "hang up" calls, in which the caller hangs up as soon as the ring is answered, were traced to the defendant, Vivian Wotan. Those calls were made on September 16, 1992, at 9:46 P.M. and on September 17, 1992, at 11:34 P.M. After trial in the District Court, Wotan was convicted of violating G.L. c. 269, § 14A, which makes it a misdemeanor to telephone someone repeatedly solely to harass, annoy or molest. ³ In her appeal, a principal ground for reversal argued by Wotan is that the jury were allowed to hear evidence about voluminous vexatious telephone calls to the Kegan household and were permitted to speculate that those calls were made by her. The defendant makes additional appellate points, among them that two calls do not satisfy the adverb "repeatedly" which appears in the statute. We affirm.

1. How many calls satisfy the adverb "repeatedly"? In Commonwealth v. Kwiatkowski, 418 Mass. 543, 548, 637 N.E.2d 854 (1994), the court decided that, for purposes of the "stalking statute," G.L. c. 265, § 43, as inserted by St.1992, c. 31, the word "repeatedly" meant more than two incidents. ⁴ The court reached that conclusion because subparagraph (d ) of the stalking statute speaks of harassment as a "pattern of conduct" or "series of acts," phrases which themselves connote multiple acts and conduct. Inevitably, engaging repeatedly in multiple acts adds up to more than two incidents. In other contexts, the court observed, the word might mean just more than once. Id. at n. 6. Making annoying telephone calls is a less serious crime than stalking, ⁵ and may require a lesser standard of repetition to prove it. By its nature, making annoying telephone calls is also an offense likely to be proved contextually, i.e., against the background of other conduct and other telephone calls. That is so because the statute requires that the offending calls be made for the "sole purpose of harassing, annoying or molesting." (Emphasis supplied). Unless the caller were to make an announcement that he calls solely to harass, annoy, or molest, that singular purpose will have to be inferred from other conduct, including other telephone calls. As the sole purpose of two calls may be proved by other calls or other conduct, we decide that two incidents--all that have been charged in the complaint--are sufficient to lay the basis for conviction under G.L. c. 269, § 14A. In several analogous instances, courts have construed the adjective "repeated" or the adverb "repeatedly" to mean "more than once." See Konrad v. State, 763 P.2d 1369, 1379 (Alaska Ct.App.1988) (repeated threats); People ex rel. VanMeveren v. County Ct., 191 Colo. 201, 205, 551 P.2d 716 (1976) (use of " 'fighting words ... repeatedly ... with intent to harass, annoy or alarm"); State v. Diede, 319 N.W.2d 818, 821 (S.D.1982) (use of a telephone with intent to disturb any person by repeated anonymous telephone calls). See also, as other examples of the interpretation of "repeated" or "repeatedly" meaning "more than once," George Hyman Constr. Co. v. Occupational Safety & Health Review Commn., 582 F.2d 834, 839 (4th Cir.1978); Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 686 (9th Cir.1978). Contra Bethlehem Steel Corp. v. Occupational Safety & Health Review Commn., 540 F.2d 157, 160 (3d Cir.1976).

2. Evidence of other calls and conduct to prove sole purpose to harass, annoy or molest. Offending against G.L. c. 269, § 14A, requires a peculiar exclusivity of purpose: solely to harass, annoy or molest. Commonwealth v. Voight, 28 Mass.App.Ct. 769, 773, 556 N.E.2d 115 (1991). Commonwealth v. Strahan, 30 Mass.App.Ct. 947, 949, 570 N.E.2d 1041 (1991). Calling eleven times in seven minutes, while perhaps evidence of a desire to harass, did not violate § 14A when that same evidence suggested an intent to rekindle a relationship. Ibid. In making its case against Wotan, the government introduced evidence of a love affair between Wotan and Kegan and, over defense objection, evidence of a barrage of telephone calls, said to number in the multi-thousands, endured by the Kegans over a four-year period. Some of those were calls in which Wotan identified herself; many were unidentified. It is to evidence of unidentified calls that the defense particularly objects, not least because the unidentified calls were of the most obviously harassing, annoying, and molesting character.

Wotan and Kegan first encountered one another in April, 1985, when Wotan was hired by the Bank of Boston as a secretary for Kegan who, at that time, was the bank's director of telecommunications. Some two and one-half years later, Kegan's operation was transferred to a different building, and he was assigned a new secretary. During this period, the relationship between the two had been correct and businesslike. Wotan had discharged her duties competently.

In April, 1988, i.e., after three years at the Bank of Boston, Wotan was let go. From that time, the accounts by Kegan and Wotan of what happened between them conflict markedly. There is agreement only that they had an affair from July, 1988, to September, 1988, during which there were at least three instances of sexual intercourse. Each claims to have been seduced by the other. Taking the evidence in the light most favorable to the prosecution, the jury could have found that, after the third sexual encounter, Kegan, who was married and had children, decided "to put [his] life in order," by ending the affair and, indeed, all communication with Wotan.

To that cutoff, Wotan did not take kindly. She proceeded to call Kegan at home in the early morning, at his work, and at home again at night. When he answered the phone, Wotan would say something like, "[Arnold, Arnold] I want to talk to you" or "[Arnold], I love you." Sometimes these calls came seven or eight in a row. Wotan did not seem to "get [his] message" and Kegan would be provoked into slamming down the receiver when he heard her on the line. In addition to calls in which Wotan spoke, Kegan received calls at home and on his voice mail at work consisting of snatches of music, voices talking on records or tapes, and "rude noises." There were also occasional hang up calls.

In July, 1989, calls from Wotan took on an ominous tone: "You better listen to me" or "You must speak to me." Kegan agreed to meet. On the advice of his wife, to whom he had revealed all, Kegan took along his then current secretary as a buffer. As soon as Wotan saw Kegan's escort at the place of meeting, she fled. Between August, 1989, and August, 1992, the month before the Kegans placed the trap on their telephone, Kegan received approximately five calls per day at work and five per day at his home. Beginning with 1991, the caller was generally unidentified and hung up as soon as the phone was answered. There were exceptions. During an eight-day period in 1992, while Kegan was in a hospital bed, recovering from a lacerated leg, he received from eight to twenty calls from Wotan, most of them introduced by "I love you" or "I want to talk to you."

Evidence of prior telephone calls which, by their sheer number, would be seen as annoying raises the question whether that evidence was improperly received because it involved prior misconduct of the defendant, tending to prove a propensity to commit the crime charged or the probability that the accused committed the offense. It is familiar ground that evidence of that kind and for that purpose is inadmissible. Commonwealth v. Chalifoux, 362 Mass. 811, 815-816, 291 N.E.2d 635 (1973). Commonwealth v. Trapp, 396 Mass. 202, 206, 485 N.E.2d 162 (1985). Commonwealth v. Helfant, 398 Mass. 214, 224, 496 N.E.2d 433 (1986). Commonwealth v. Sapoznik, 28 Mass.App.Ct. 236, 243, 549 N.E.2d 116 (1990). Prior misconduct evidence may be received, however, if it bears on the defendant's state of mind while committing the crime charged, Commonwealth v. Gallison, 383 Mass. 659, 672, 421 N.E.2d 757 (1981), Commonwealth v. Azar, 32 Mass.App.Ct. 290, 299-300, 588 N.E.2d 1352 (1992), or if it illuminates a common scheme, pattern, or course of conduct by the defendant. Commonwealth v. King, 387 Mass. 464, 472, 441 N.E.2d 248 (1982). Commonwealth v. Barrett, 418 Mass. 788, 793-794, 641 N.E.2d 1302 (1994). Commonwealth v. Odell, 34 Mass.App.Ct. 100, 103, 607 N.E.2d 423 (1993).

The history of the calls which the Kegans had received from Wotan had a bearing on her purpose in making them and illuminated a pattern and course of conduct. A spate of telephone calls, although irritating to the receiver, may indicate no more than an urgent purpose to receive a response from an object of affection, a vendor, a taxi-dispatcher, or city hall. Commonwealth v. Strahan, 30 Mass.App.Ct. at 949, 570 N.E.2d 1041. A drumfire of calls--morning, noon, and night for days, weeks, and months--is so obviously vexatious to the receiver that the requisite sole purpose of harassing, annoying, and molesting may be inferred, even if getting the receiver's goat is at bottom stimulated by an obsessive desire to get the receiver's attention. To the extent, therefore, that telephone calls were identifiably Wotan's, they were...