DeMayo v. Quinn

• Decision Date: 24 February 2015
• Docket Number: No. 14–P–398.,14–P–398.
• Citation: 25 N.E.3d 903,87 Mass.App.Ct. 115
• Parties: Carol DEMAYO v. David QUINN.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 115

25 N.E.3d 903

Carol DEMAYO

v.David QUINN.

No. 14–P–398.

Appeals Court of Massachusetts, Berkshire.

Argued Nov. 3, 2014.

Decided Feb. 24, 2015.

Mark J. Pasquariello, Adams, for the defendant.

Present: GREEN, WOLOHOJIAN, & BLAKE, JJ.

Opinion

BLAKE, J.

On December 17, 2013, following an ex parte hearing, a harassment prevention order (order) was issued against the defendant pursuant to G.L. c. 258E. A further evidentiary hearing was held, at which the plaintiff testified, and the order was extended for one year. The defendant appeals from the extension of the order, claiming that his conduct was neither “willful or malicious,” nor “aimed at a specific person,” as required by the statute. We agree as to the latter point, and accordingly vacate the order.

1. Background. The undisputed facts are as follows. The plaintiff owns a horse boarding facility; she also resides at the same property with her husband. In late August, 2013, the plaintiff discovered that particular items in the horse barn were either missing or had been rearranged. When the episodes continued, and a horse's allergy medication and needles disappeared, the

plaintiff set up a video camera and contacted the police. The police then set up their own surveillance camera, which captured an unauthorized individual, eventually identified as the defendant, engaging in various activities inside the barn on five different occasions. The videotape recording of those incidents showed the defendant taking items from the barn's refrigerator, rearranging hay bales, and throwing items into a horse's stall.¹ Although the plaintiff is not the legal owner of the horse involved, the facility was responsible for its care.

2. Legal requirements. “An Act relative to harassment prevention orders,” codified as G.L. c. 258E, was enacted to: (1) provide protection to victims of sexual assault, stalking, and criminal harassment that is unavailable under the domestic abuse prevention law, G.L. c. 209A; and (2) make violations of these orders punishable as a crime. Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014).² In order to obtain a c. 258E order, a plaintiff must demonstrate that she is suffering from harassment. “Harassment,” insofar as relevant here, is defined as “[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, inserted by St. 2010, c. 23.

3. Wilful and malicious conduct. On appeal, the defendant concedes that his actions may have been intentional, but contends they were not malicious, which the statute defines as “characterized by cruelty, hostility or revenge.” G.L. c. 258E, § 1. We disagree.

“A plaintiff seeking protection through a civil harassment order must show that the defendant engaged in at least three wilful and malicious acts, and that for each act the defendant intended to cause fear, intimidation, abuse, or damage to property.” O'Brien v. Borowski, 461 Mass. 415, 426 n. 8, 961 N.E.2d 547 (2012). Here, the uncontested evidence, as captured on video surveillance, shows that the defendant, on at least three occasions, caused damage to property either owned or in the care of the plaintiff. It is implicit in the judge's oral findings, particularly in relation to the horse, that the

judge considered the acts to be either cruel, hostile, or both.³ He also found that the defendant's actions placed the plaintiff in actual fear. Given the judge's findings, which we will not disturb on appeal unless clearly erroneous, Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637, 925 N.E.2d 513 (2010), the cumulative effect of the acts were sufficient to meet the statutory definition of wilful and malicious conduct. See O'Brien v. Borowski, 461 Mass. at 426 n. 8, 961 N.E.2d 547.

4. Conduct aimed at a specific person. The defendant further argues that there was insufficient evidence to conclude that his actions were aimed at the plaintiff. We agree.

Our decisional law has not yet addressed that portion of c. 258E which requires the acts to be “aimed at a specific person.” However, that phrase tracks language of the criminal harassment statute, G.L. c. 265, § 43A, as amended by St. 2010, c. 92, § 10, which provides, in relevant part, that “whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment” (emphasis added). See O'Brien v. Borowski, 461 Mass. at 420, 961 N.E.2d 547 (“Both civil and criminal harassment require proof of three or more acts of wilful and malicious conduct aimed at a specific person”); Commonwealth v. Johnson, 470 Mass. 300, 312, 21 N.E.3d 937 (2014) (“Section § 43A [a ] requires that the Commonwealth prove three or more predicate acts of harassment that were ‘directed at a specific person’ ”).

In the criminal context, the “ ‘specific person’ referred to is the victim—the person who is ‘seriously alarm[ed]’ by the harassment.” Commonwealth v. Welch, 444 Mass. 80, 90, 825 N.E.2d 1005 (2005), quoting from G.L. c. 265, § 43A(a ). More precisely, “this provision, by its plain terms, requires the Commonwealth to establish, at the very least, that the defendant intended to target the victim with the harassing conduct on at least three occasions.” Ibid. Although not defined in G.L. c. 258E, § 1, we see no reason for this shared term (“at a specific person”) to have a different meaning in the context of civil harassment.

Here, there is nothing about the actions of the defendant to

suggest that he undertook them with an intent to cause fear on the part of the plaintiff, or anyone at the property. The plaintiff acknowledged that she lived on the property with her husband, that customers of the barn came to and from the property at all times of the day and night, and that an unrelated family of four also lived on the property. Moreover, the parties did not know one...