J.C. v. J.H.
| Decision Date | 14 September 2017 |
| Docket Number | No. 15-P-1612.,15-P-1612. |
| Parties | J.C. v. J.H. |
| Court | Appeals Court of Massachusetts |
Present: Sullivan, Maldonado, & Neyman, JJ.
Civil Harassment. Harassment Prevention. Protective Order. Statute, Construction. Evidence, Intent, Presumptions and burden of proof. Practice, Civil, Burden of proof, Presumptions and burden of proof. Firearms.
Complaint for protection from harassment filed in the Lynn Division of the District Court Department on October 14, 2014.
A hearing to extend the harassment prevention order was had before Albert S. Conlon, J.
J.H., pro se.
Christine I. Wetzel for the plaintiff.
The defendant, J.H., appeals from a civil harassment prevention order issued pursuant to G. L. c. 258E.2He contends that his former girl friend, the plaintiff, J.C., did not prove three or more acts of harassment as defined by G. L. c. 258E, § 1. He further contends that the judge was without authority to order the surrender of his firearms. For the reasons that follow, we vacate so much of the order as required the defendant to surrender his firearms.
Background. We summarize the facts consistent with the judge's findings and rulings based on the affidavits filed and the testimony given at the hearing on the extension of the harassment prevention order. The defendant initiated a relationship with the plaintiff in August of 2010 after meeting her at an Alcoholics Anonymous (AA) meeting. The plaintiff ended their relationship in April of 2013. After the relationship ended, the defendant made the plaintiff "very uncomfortable." The plaintiff changed her activities to avoid him. She did so because he was "pushy" and "suggested [they] get together for sex," even though she said no and repeatedly stated the relationship was over. She attended a different AA meeting and switched to a different yoga studio than the one she had frequented when she was with the defendant. The defendantcontinued to contact the plaintiff. He sent her text messages, and she responded that she wanted to be left alone.
In July of 2013, the plaintiff received a series of text messages from the defendant.3 In the first message, the defendant texted, The plaintiff asked him not to contact her, and sought the assistance of the police, who told the defendant to cease all contact with the plaintiff. Undeterred, the defendant continued to contact her and appeared at the plaintiff's yoga class in November or December of 2013. The defendant looked at the plaintiff "angrily." The plaintiff was fearful that he would follow her home, and she left the class early to avoid him.
Other text messages set a similar tone and provide further context. In a second text message sent in July, 2013, the defendant texted the plaintiff, He then texted, The defendant then sent numerous text messages to the plaintiff's boy friend. A thirdtext message the defendant sent to the plaintiff during the month of July, 2013, stated, 4
As noted above, the plaintiff telephoned her local police department and, while no report was filed, the police telephoned the defendant and told him not to contact the plaintiff. The defendant continued to contact the plaintiff, who told him to leave her alone.
In addition to following the plaintiff to the yoga studio, the defendant also appeared at a Starbucks in December of 2013, where the plaintiff was seated with a friend. "He was very red in the face and made extremely intimidating facial expressions towards [her]." The plaintiff immediately left the Starbucks. The defendant continued to text the plaintiff after this incident, telling her that she should apologize for going to the police.
On January 1, 2014, the plaintiff filed a police report with the local police. Once again, a police officer telephoned the defendant and told him not to contact the plaintiff. The defendant continued to contact the plaintiff through electronicmail messages (e-mail), text messages, and letters. In May of 2014, the plaintiff went again to the police to report that the defendant continued to contact her and that the defendant had approached the plaintiff's boy friend and asked to speak to him. The police advised the plaintiff of her right to seek a harassment prevention order. The defendant continued to try to contact the plaintiff through a friend. He sent the plaintiff a letter in April of 2014 in which he stated, "I will admit to my jealousy." He promised not to contact her again, and asked that she not go to the police.
On July 30, 2014, the defendant appeared at the plaintiff's workplace, a private home where she was caring for children. He tried to talk to her, and blocked the driveway with his truck. The plaintiff "immediately took the kids inside their house," afraid that he would try to engage her. After that incident, the plaintiff received letters, text messages, and a flower delivery from the defendant, all in an effort to rekindle the relationship.5 At this juncture the relationship had been over for fifteen months, and both the plaintiff and the local police department had made numerous unsuccessful efforts to dissuade the defendant from contacting and following her.
On October 14, 2014, the plaintiff filed a complaint for an ex parte harassment prevention order. The ex parte order issued, and the order was extended for one year at a hearing held on November 7, 2014, at which the judge found that the plaintiff had satisfied her burden in light of the "overwhelming number" of contacts, "particularly in the face of [the defendant] being told by the police that [he] just shouldn't be going there." The judge also specifically noted the fact that the defendant had followed the plaintiff to the yoga studio and Starbucks.
Discussion. 1. The order. When reviewing a harassment prevention order pursuant to G. L. c. 258E, "we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant 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.'" A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting from G. L. c. 258E, § 1, inserted by St. 2010, c. 23. "The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being characterized by cruelty, hostility or revenge, and that each act was intended by the defendant to place the plaintiff in fear of physical harm or fear of physical damage to property." A.T. v. C.R., supra (quotation omitted). See G. L. c. 258E, § 1; O'Brien v. Borowski, 461 Mass. 415, 420 (2012); Seney v. Morhy, 467 Mass. 58, 60 (2014); Van Liew v. Stansfield, 474 Mass. 31, 36-38 (2016); V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017).
The record reflects an abundance of acts of harassment that meet the statutory criteria. Because there are multiple acts, many of which could support the extension of the order, we group the conduct into three categories for ease of our discussion. For the purpose of our analysis, we consider each of the following as an act within the meaning of the statute: (1) text messages telling the plaintiff that she "should be scared," calling her a "bitch," and telling her he knew how to find her at yoga, followed by his appearance at the yoga studio;6 (2) text messages telling the plaintiff that she would be "fucked" and/or blackmailed, referring to her as a "slut" and a "whore," telling the plaintiff not to "cross [him]," that "[t]his will end badly for [her]," and that she would "pay the consequences," followed by confronting her at Starbucks; and (3) following her to her place of work, which she was not free to leave, after beingrepeatedly told to leave her alone, and after promising to leave her alone.
The record supports the judge's conclusion that the plaintiff was scared and intimidated by these acts and that the defendant maliciously intended to cause and, in fact, caused intimidation and a fear of physical harm. The plaintiff explicitly stated in her affidavit that she was fearful, and the judge credited her statement.7 Fear is judged by a subjective, not an objective, standard under the statute. See A.T. v. C.R., 88 Mass. App. Ct. at 537.8 The judge considered the surrounding circumstances in crediting her affidavit. The judge also could consider the defendant's persistence despite repeated admonitions to stop, as well as his disregard for the directives of law enforcement, as independent bases to find that the plaintiff was actually intimidated and feared for her physical safety.
With respect to the defendant's subjective intent, his angry texts and "repeated and escalating harassment of the plaintiff . . . would reasonably support an inference that he intended to cause the plaintiff fear and intimidation." Id. at538. The plaintiff told the defendant repeatedly to leave her alone, but he did not....
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