A.P. v. M.T., 16-P-202

• Decision Date: 01 September 2017
• Docket Number: No. 16-P-202,16-P-202
• Citation: 92 Mass.App.Ct. 156,84 N.E.3d 35
• Parties: A.P. v. M.T.
• Court: Appeals Court of Massachusetts

92 Mass.App.Ct. 156

84 N.E.3d 35

A.P.

v.M.T.

No. 16-P-202

Appeals Court of Massachusetts, Essex..

Argued January 6, 2017.

Decided September 1, 2017.

Benjamin L. Falkner, Andover, for the defendant.

Present: Kafker, C.J., Hanlon, & Agnes, JJ.¹

HANLON, J.

After a hearing, a Juvenile Court judge extended a civil harassment order, pursuant to G.L.c. 258E, against a juvenile (the defendant, M.T.) who, along with another boy, was accused of committing an indecent assault and battery on a four year old neighbor girl (the plaintiff, A.P.). M.T. now appeals the ex parte order and the extension, arguing that (1) the evidence was insufficient to support the issuance of the order; (2) the judge abused his discretion in limiting the cross-examination of A.P.'s mother (mother); and (3) the mother's in-court identification of M.T. and the other boy was improper. M.T. asks this court to vacate the order and expunge all records or, in the alternative, to vacate the order and remand for further proceedings.² We affirm.

Background.³ A.P. and M.T. and their families live on a cul-de-sac. Their properties border one another, and are separated by a fence. The other boy's property is in the same cul-de-sac, but does not border A.P.'s property. At the time of the incident, A.P. was four years old and had developmental delays related to speaking and expression.

At the ex parte hearing, A.P.'s father (father) appeared alone and testified that he was at work when he received a telephone call from the mother.⁴ The father summarized the events as the mother had relayed them to him:

"[A.P.] was in the backyard in our fenced-in yard playing. We have a swing set, jungle gym, and some toys. And my wife's Vietnamese. She's pretty protective, generally won't let the kids out of her sight for more than [ten] to [twenty] minutes, if that. So I don't know how long she was out there.

"But my wife went to the back door and hollered [A.P.]'s name. And our jungle gym sort of blocks—there's a blind spot right behind the jungle gym. And [A.P.] came running from behind the jungle gym holding her underwear and no clothes. She was naked. And the two boys jumped the fence and just ran back to their homes."

Based on the father's testimony, the judge issued an ex parte order and scheduled a hearing after notice.

At the hearing after notice before the same judge, the mother testified with an interpreter and was cross-examined; we summarize her testimony.⁵ She explained that she knew the boys because they had played with A.P. and also with a third boy who had lived in her home; that boy had since returned to his home in Vietnam. On the day of the incident, she was painting a door when she heard her daughter's voice. "I heard her excitement because she loves to play with [M.T.]. And then I looked ... out through the door, and I saw [M.T.] climbing the fence.... So [A.P.] pushed the door open and the two boys came ... into the house." The mother said that the boys had climbed the fence before "just like in Vietnam, you know. That's what kids do." When M.T. asked about the third boy, she told the two boys that he had gone back to Vietnam.

The boys played in the house for a few minutes, and then went outside. A.P. asked to follow the boys and the mother initially said no. The mother stated that she was reluctant to agree because the boys "play so rough and they make her cry." However, A.P. cried and begged to go; eventually, the mother allowed A.P. to follow the boys. "So I told her put on your shoes and your jacket and go outside because it's cold outside and Mommy will join you right away."⁶

The mother testified that, after agreeing to let A.P. go, she did not "feel ... good" about the situation and, eventually, decided to go outside herself. "[S]o I went and washed my hands ... [and] after I washed my hands, I didn't even get out to the back door ... and [A.P.] came running inside. She slammed the door and she said, ‘Mom, help me, help me.’ " A.P. was "holding onto her underwear, her panty" and wearing nothing else. "So I told her it's cold outside, why did you take—remove your jacket." When the mother went outside to determine what had happened, she saw the boys running away. "As they were running, they turned back to look at us, and I just felt funny about that." A.P.'s clothes were piled outside near her toys. Inside, the mother inspected A.P. and saw "some spot and stain" on her underwear.

The mother telephoned the father and, when he told her that the police were on their way, she took photographs of her daughter. The photographs were admitted in evidence at the hearing, and we have seen them as well. There is a photograph of A.P. from earlier in the day when she went to school; in the photograph, she is fully dressed in a pink dress, a white sweater, and pink shoes, with her arms outstretched in a yard with fallen leaves. As the father testified, "And then later on when the incident took place, she was still wearing that dress but with another jacket." Taken after the incident, three other photographs show A.P. lying with her legs spread and wearing only underpants. She was smeared with mud on her bare feet, her legs and knees, and on her underwear between her legs, in the area of her bottom up into her crotch area. The mother testified that she tried to ask A.P. what had happened, but the four year old would not say anything beyond "that person, that person." In addition, the father told the judge that a doctor's report included observations of fresh abrasions and bruising on A.P.'s body.⁷

The judge then asked the mother if she could identify the two boys from that day. That exchange, with the defendants' objections, transpired as follows:

JUDGE : "Okay. And you described seeing two boys that day? Do you—"

MOTHER : "That's right."

JUDGE : "Do you see those two boys in the courtroom today?"

COUNSEL FOR THE OTHER BOY : "Objection."

MOTHER : "One here, one here."

COUNSEL FOR M.T.: "Objection, Judge."

JUDGE : "Okay. I'll note your—"

MOTHER : "[M.T.] was wearing an orange-color outfit, and I'm not sure what this—his name. He was wearing something gray maybe, but I didn't pay much attention to what he was wearing. Because [M.T.] actually said hi."

COUNSEL FOR M.T.: "Judge, I object. That couldn't be a more suggestive identification."

JUDGE : "Right. But, again, this is not a penal or a criminal hearing. It's a civil hearing."

On cross-examination, M.T.'s attorney elicited the following testimony from the mother: (1) she never saw M.T. or the other boy touch A.P. or remove her clothing; (2) it was uncommon for A.P. to take off her own clothes and she only does so when she takes a bath; "[e]ven then if you try to remove her underwear she would cry"; (3) the mother's prior testimony about A.P. playing "rough" referred to playing on the slide and playing on the father's shoulders;⁸ (4) A.P. rarely comes in dirty from playing outside and when she does she tells her mother that she is dirty and asks her mother to change her clothes. After M.T.'s attorney cross-examined the mother for a relatively brief period of time (approximately four pages of transcript), the judge cut off the cross-examination, explaining that "this is a very limited hearing" and that it was customary to hear from both parties but not to have examinations. M.T.'s attorney objected to the limitation and also objected to the admission of evidence that violated "the rules of evidence."

The other boy's attorney continued the line of questioning relating to whether A.P. had a history of getting dirty while playing outside. The judge then asked if there was any evidence or testimony from the defendants, and both counsel responded in the negative. The judge heard final arguments and recommendations from both defendants' attorneys; each argued that there was insufficient evidence to support an extension of the order.

At the end of the hearing, the judge described the evidence as "circumstantial," but noted that he found the photographs "compelling" and that he had made copies for the record. He also considered "the child's state of mind at the time and her reaction to the circumstances and the fact that [the] mother observed this." He concluded there was "sufficient evidence to issue a civil harassment order [for] indecent assault and battery on a child under the age of [fourteen] where consent is not a defense [and] the circumstantial evidence here is sufficient to support it."

Discussion. We review harassment prevention orders under G.L.c. 258E to determine "whether the judge could find, by a preponderance of the evidence, together with all permissible inferences," that the defendant had committed one or more of the enumerated sex crimes or three or more specific acts of wilful or malicious conduct. Gassman v. Reason, 90 Mass.App.Ct. 1, 7, 55 N.E.3d 997 (2016). See F.A.P. v. J.E.S., 87 Mass.App.Ct. 595, 598-599, 33 N.E.3d 1245 (2015).

Harassment prevention orders under G.L.c. 258E were "intended to protect victims who could not legally seek protection under G.L.c. 209A," when the victims did not satisfy the relationship requirement for jurisdiction under c. 209A. Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014), citing O'Brien v. Borowski, 461 Mass. 415, 419, 961 N.E.2d 547 (2012). As a result, the language in c. 258E is "analogous to the language found in c. 209A." J.S.H. v. J.S., 91 Mass.App.Ct. 107, 109, 71 N.E.3d 910 (2017). For this reason, for the most part, both the Supreme Judicial Court and this court have applied the case law relating to c. 209A to cases arising under c. 258E. See O'Brien, supra at 418-420, 961 N.E.2d 547 (noting distinctions between c. 209A and c. 258E); Seney, supra at 62, 3 N.E.3d 577 (following case law related to c. 209A when determining proper appellate procedure for c. 258E orders); J.S.H., supra at 109-112, 71 N.E.3d 910 (applying c. 209A expungement standards to c. 258E proceedings). In addition, this court has cited the Guidelines for Judicial Practice: Abuse...