.J. v. N.J.

• Decision Date: 30 January 2017
• Docket Number: No. 15-P-1648.,15-P-1648.
• Citation: 68 N.E.3d 1195
• Parties: V.J. v. N.J.
• Court: Appeals Court of Massachusetts

68 N.E.3d 1195

V.J.

v.N.J.

No. 15-P-1648.

Appeals Court of Massachusetts, Plymouth..

Argued October 11, 2016.

Decided January 30, 2017.

Michael P. Friedman , Boston, for the defendant.

Present: Meade, Milkey, & Kinder, JJ.

MEADE, J.

The defendant, N.J. (defendant), appeals from the extension of a G. L. c. 258E civil harassment prevention order, which prohibited any contact between him and the plaintiff, V.J. (plaintiff). The parties are not related. The order at issue expired on October 7, 2016.¹ On appeal, the defendant claims that the judge did not find, and could not properly have found, that there were at least three separate incidents by which he intentionally placed the plaintiff in fear, intimidated her, or otherwise abused her. We affirm.

1. Background. On September 25, 2015, pursuant to G. L. c. 258E, §§ 3 and 5, the plaintiff obtained an ex parte harassment prevention order against the defendant. The order was set to expire on October 9, 2015, and a hearing was set down for that date regarding an extension of the order. After an evidentiary hearing

at which both parties testified, a judge of the Brockton Division of the District Court Department extended the harassment prevention order to October 7, 2016, and found the following facts, which are supplemented by the plaintiff's affidavit in support of the harassment prevention order and her testimony, which the judge explicitly found to be credible.

Beginning in 2011, the defendant, a passenger on a Massachusetts Bay Transportation Authority (MBTA) bus operated by the plaintiff, made numerous attempts to "court" her; all were rebuffed. These attempts made her feel uncomfortable and she feared the defendant. The plaintiff identified a pattern of harassment between 2012 and 2015, including an incident occurring on June 10, 2012, while she was on a break at an MBTA station, in which the defendant approached her from behind and grabbed her across her chest in a "bear hug," in the manner of one intending to "abduct somebody." The plaintiff "had to pry his arms from around [her]." This made her "very fearful" of the defendant.² Although she did not file a police report, the plaintiff did report the incident to her supervisor at the MBTA, as she was in full uniform on MBTA property when the incident took place.³

On July 1, 2012, the defendant boarded the bus the plaintiff was driving. Soon after the bus departed, the defendant attempted to apologize for having grabbed her on June 10, 2012. She did not accept his apology and told the defendant that if he had to ride on her bus route, he should just pay his fare and not communicate with her. Upon hearing this, the defendant "went off" and "verbally assault[ed]" the plaintiff in a rant, saying "out-of-control things." The defendant called her a "fat bitch" and a "ghetto bitch,"

and he threatened her job. Although she did not fear for her job, she was afraid for her physical safety because he "was irate." The plaintiff had to call the police to have the defendant removed. As a result of her fear of the defendant from his physical assault, the plaintiff began denying him access to the MBTA bus she operated.

On September 9, 2015, after a hiatus of some three years during which the defendant did not ride the plaintiff's bus (either because she was assigned to a different route, or he simply did not attempt to board), the defendant again boarded the plaintiff's bus and became angry at her for attempting to deny him access to the bus. Although he made no direct threat of physical violence, the defendant told the plaintiff to call the police in order to remove him from the bus, which she did. The police removed him from the bus, but not before he went on a rant about the impropriety of his being denied access to her bus route and telling her that he would be there every day to inconvenience her as she had done to him. The dissent describes this incident as "political speech," i.e., a protest against the authority of the MBTA. See post at 1206. We disagree. When the defendant told the plaintiff that the police would have to remove him, his speech became a physical threat, implying as it did that physical force would be required for him to leave the bus. At that point, it is fair to conclude that his intent was to frighten and intimidate her, and she was, in fact, frightened.

The defendant testified that he is a disabled veteran who suffers from posttraumatic stress disorder

, and relies on the plaintiff's bus route to get to and from the Veteran's Administration hospital (V.A.), where he both works and receives services. As a result of being denied access to her bus, the defendant had difficulty getting to the V.A. He denied any romantic interest in the plaintiff, and denied making any threats or physically assaulting her.⁴

The judge expressly found the defendant's testimony not credible. She found that he was angry and upset that he could not ride his chosen bus route. The judge determined his actions toward the plaintiff were wilful, and caused her to be in fear and to suffer intimidation. The judge further observed that the defendant was "visibly angry and upset during the course of th[e] harassment order hearing."

At the conclusion of the hearing, the judge extended the harassment prevention order to October 7, 2016, ordering the defendant not to abuse or contact the plaintiff, and to stay away from both her home and work. This included the MBTA bus operated by the plaintiff. The defendant timely noticed an appeal.

2. Discussion. "In reviewing a civil harassment order under 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.’ G. L. c. 258E, § 1, ‘Harassment,’ inserted by St. 2010, § 23. See O'Brien v. Borowski, 461 Mass. 415, 419–420, 961 N.E.2d 547 (2012)." A.T. v. C.R., 88 Mass.App.Ct. 532, 535, 39 N.E.3d 744 (2015). It is the plaintiff's burden to prove 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, as pertinent here, that each act was intended by the defendant to intimidate the plaintiff or place the plaintiff in "fear of physical harm or fear of physical damage to property." O'Brien v. Borowski, supra at 426, 427, 961 N.E.2d 547.

"In the context of a civil [harassment prevention] order, the test is a subjective one; if all of the other elements are present, it is sufficient to show that the harassment actually caused fear, intimidation, or abuse to the plaintiff, even if a reasonable person in the plaintiff's situation would not have been so affected." Petriello v. Indresano, 87 Mass.App.Ct. 438, 444–445, 31 N.E.3d 1159 (2015). In the determination of whether the three acts "did ‘in fact cause fear, intimidation, abuse or damage to property,’ " it is "the entire course of harassment, rather than each individual act, that must cause fear or intimidation." O'Brien v. Borowski, supra at 426 n.8, 961 N.E.2d 547. A.T. v. C.R., supra.

Here, although the judge did not delineate three acts of harassment, she did find that the plaintiff continued to suffer harassment from the defendant "well in excess of three (3) times over the past several years." This finding is amply supported by the record. The first act occurred on June 10, 2012, when the defendant grabbed her from behind in a bear hug across her chest, as if he intended to "abduct" her. She had to pry his arms off to get free.

The second act occurred on July 1, 2012, when the defendant boarded the plaintiff's bus and attempted to apologize for having

grabbed her on June 10, 2012. When the plaintiff refused his apology and requested that he not speak to her, the defendant called her a "fat bitch" and a "ghetto bitch," and he threatened her job. Although she was not concerned for her job, she was afraid for her physical safety because he "was irate." In fact, the plaintiff had to call the police to have the defendant removed.

The third act occurred on September 9, 2015, when the defendant again boarded the plaintiff's bus, and became angry at her for attempting to deny him access to the bus. Although he did not directly threaten the plaintiff with physical violence, he did tell her that she would need the police to have him removed from the bus. When the police did remove the defendant from the bus, he began ranting about being denied access to her bus route and told the plaintiff that he would be there every day to inconvenience her as she had done to him.

The defendant claims that the judge's failure to delineate three distinct acts was error and that, in any event, the three incidents we describe above are not sufficient for purposes of G. L. c. 258E. We disagree. In the first incident, the defendant physically assaulted the plaintiff in a manner that she described as an attempted abduction. She had to pry his arms off of her to get free. Thus, his hostile behavior not only placed the plaintiff in fear of physical harm, but also actually caused her physical harm. See O'Brien v. Borowski, supra at 427, 961 N.E.2d 547.

The second act is similarly supportive of the judge's ultimate finding. Although the defendant claimed he was attempting to apologize for having assaulted her a few weeks prior, his claimed atonement devolved into threats and venomous name calling. See A.T. v. C.R., 88 Mass.App.Ct. at 535, 39 N.E.3d 744 (the defendant's calling the plaintiff a "bitch" was "indicative of a cumulative pattern of harassment"). Based on the defendant's "irate" behavior, and the necessity of police intervention to remove the defendant, the plaintiff expressed explicit fear for her physical safety.

The third act presents the...