NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-104
COMMONWEALTH
vs.
LAWRENCE ZINSER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
While serving a period of probation, the defendant was
charged with new criminal offenses. Following an evidentiary
hearing, a judge of the Superior Court determined that it was
more likely than not that the defendant had violated the
conditions of his probation by committing the new offenses and
revoked the defendant's probation. For the reasons that follow,
we affirm. 1
Background. In August 1998, a jury convicted the defendant
of armed assault with intent to kill, assault and battery with a
dangerous weapon on a person over sixty, and malicious
1 Although this appeal appears to be untimely, we choose to decide it on the merits. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 781–782 (2008). destruction of property. 2 The defendant appealed, and the
judgments of conviction were affirmed by a different panel of
this court in an unpublished memorandum and order. See
Commonwealth v. Zinser, 51 Mass. App. Ct. 1105 (2001). In
February 2021, after a lengthy term of incarceration (twenty-
three years), the defendant was released from prison and began
to serve a ten-year term of probation. Approximately six months
later, on August 2, 2021, he was indicted by a grand jury and
charged with two counts of criminal harassment, subsequent
offense, in violation of G. L. c. 265, § 43A. On the basis of
the new charges, the probation department issued a notice of
surrender, alleging that the defendant had violated the
condition of his probation requiring him to "obey local, state,
and federal laws, and court orders." 3
2 The victims in the case were the brother and husband of a former student whom the defendant had met at least a decade earlier while he was employed as a substitute teacher at Lowell High School. There was evidence, as the defendant acknowledges in his brief, that the incident was related to the defendant's stalking of the student. Commonwealth v. Zinser, 51 Mass. App. Ct. 1105 (2001). 3 The notice of surrender also alleged that the defendant had
violated the special condition of his probation requiring him to have "no contact direct or indirect contact with victims or family of victims." The judge found that the evidence did not support a finding that the defendant had failed to comply with the no contact order because neither victim of the new charges was a victim of the crimes for which the defendant had been convicted. Consequently, he did not revoke the defendant's probation on this ground.
2 Based on the evidence presented at the probation revocation
hearing, 4 the judge could have found as follows. The defendant
has a lengthy criminal history that included incidents of
criminal harassment. The alleged victims of the new criminal
harassment charges, Susan and Linda, 5 had been subjected to the
defendant's intimidating and harassing conduct before he was
incarcerated in 1998. Although the defendant was not convicted
of any offense involving either victim, they both reported the
defendant's conduct to the police at that time. The ensuing
investigation revealed that the defendant made annoying and
harassing telephone calls to Susan, sent her letters containing
"sexual overtones and threatening gestures," and on two separate
occasions the tires of cars belonging to her parents and
neighbors were slashed. The defendant also wrote to Linda, and
in one letter he referred to Susan as a "she monster" and
speculated that "I guess you'll be talking about me to her
[Susan] in 1992!" After Linda gave the letter to the police,
the tires of cars belonging to her family were slashed.
Within a few months of being released from prison, the
defendant attempted to contact Linda and Susan by calling the
4 Most of the hearing was not recorded. The parties filed a joint motion to reconstruct the record pursuant to Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611 (2019). The judge allowed the motion in part and made certain modifications. 5 The alleged victims' names are pseudonyms.
3 telephone numbers associated with the homes in which they lived
decades earlier when the defendant knew them. The defendant
called Linda's number three times on her birthday in April 2021.
Linda's mother was still residing in the house and did not
answer the first two calls because she did not recognize the
number. She answered the third call and spoke briefly with the
caller, who asked for Linda. The mother replied that Linda was
not home. After the caller hung up, the mother dialed the
number appearing as the last call on her phone and learned that
the number belonged to the defendant. Linda was interviewed
about the telephone calls by a police detective who was familiar
with the defendant's prior criminal conduct. He described her
as "extremely shaken" and she expressed her fear of the
defendant. She stated that she "could not believe that [the
harassment] was happening again."
The defendant also telephoned Susan's childhood home.
Susan testified about the telephone calls before the grand jury.
Portions of her testimony were submitted as an exhibit at the
probation revocation hearing. She related that the defendant
spent ten years terrorizing her and her family in the 1990s.
When Susan learned that the defendant had been released from
prison, she moved her elderly mother out of her childhood home
out of fear that the defendant would target Susan and her family
again. Telephone records obtained during the investigation
4 showed six telephone calls from the defendant's phone number
were placed to Susan's prior home. The first call was made on
April 25, four calls were made on April 27, and one call on
April 28. None of these telephone calls was answered. Susan
was "[t]errified" on learning the defendant had called her
mother's home.
Discussion. "In a probation revocation hearing, the issue
to be determined is not guilt beyond a reasonable doubt but,
rather, whether the probationer more likely than not violated
the conditions of his probation" (citation omitted).
Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 29 (2020).
"Thus, we uphold a judge's finding of a probation violation if
it is supported by a preponderance of the evidence. . . . The
decision to revoke probation, based on a violation shown by a
preponderance of the evidence, lies within the discretion of the
judge." Id. The defendant first argues that the judge abused
his discretion because the evidence did not establish by a
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-104
COMMONWEALTH
vs.
LAWRENCE ZINSER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
While serving a period of probation, the defendant was
charged with new criminal offenses. Following an evidentiary
hearing, a judge of the Superior Court determined that it was
more likely than not that the defendant had violated the
conditions of his probation by committing the new offenses and
revoked the defendant's probation. For the reasons that follow,
we affirm. 1
Background. In August 1998, a jury convicted the defendant
of armed assault with intent to kill, assault and battery with a
dangerous weapon on a person over sixty, and malicious
1 Although this appeal appears to be untimely, we choose to decide it on the merits. See Eyster v. Pechenik, 71 Mass. App. Ct. 773, 781–782 (2008). destruction of property. 2 The defendant appealed, and the
judgments of conviction were affirmed by a different panel of
this court in an unpublished memorandum and order. See
Commonwealth v. Zinser, 51 Mass. App. Ct. 1105 (2001). In
February 2021, after a lengthy term of incarceration (twenty-
three years), the defendant was released from prison and began
to serve a ten-year term of probation. Approximately six months
later, on August 2, 2021, he was indicted by a grand jury and
charged with two counts of criminal harassment, subsequent
offense, in violation of G. L. c. 265, § 43A. On the basis of
the new charges, the probation department issued a notice of
surrender, alleging that the defendant had violated the
condition of his probation requiring him to "obey local, state,
and federal laws, and court orders." 3
2 The victims in the case were the brother and husband of a former student whom the defendant had met at least a decade earlier while he was employed as a substitute teacher at Lowell High School. There was evidence, as the defendant acknowledges in his brief, that the incident was related to the defendant's stalking of the student. Commonwealth v. Zinser, 51 Mass. App. Ct. 1105 (2001). 3 The notice of surrender also alleged that the defendant had
violated the special condition of his probation requiring him to have "no contact direct or indirect contact with victims or family of victims." The judge found that the evidence did not support a finding that the defendant had failed to comply with the no contact order because neither victim of the new charges was a victim of the crimes for which the defendant had been convicted. Consequently, he did not revoke the defendant's probation on this ground.
2 Based on the evidence presented at the probation revocation
hearing, 4 the judge could have found as follows. The defendant
has a lengthy criminal history that included incidents of
criminal harassment. The alleged victims of the new criminal
harassment charges, Susan and Linda, 5 had been subjected to the
defendant's intimidating and harassing conduct before he was
incarcerated in 1998. Although the defendant was not convicted
of any offense involving either victim, they both reported the
defendant's conduct to the police at that time. The ensuing
investigation revealed that the defendant made annoying and
harassing telephone calls to Susan, sent her letters containing
"sexual overtones and threatening gestures," and on two separate
occasions the tires of cars belonging to her parents and
neighbors were slashed. The defendant also wrote to Linda, and
in one letter he referred to Susan as a "she monster" and
speculated that "I guess you'll be talking about me to her
[Susan] in 1992!" After Linda gave the letter to the police,
the tires of cars belonging to her family were slashed.
Within a few months of being released from prison, the
defendant attempted to contact Linda and Susan by calling the
4 Most of the hearing was not recorded. The parties filed a joint motion to reconstruct the record pursuant to Mass. R. A. P. 8 (c), as appearing in 481 Mass. 1611 (2019). The judge allowed the motion in part and made certain modifications. 5 The alleged victims' names are pseudonyms.
3 telephone numbers associated with the homes in which they lived
decades earlier when the defendant knew them. The defendant
called Linda's number three times on her birthday in April 2021.
Linda's mother was still residing in the house and did not
answer the first two calls because she did not recognize the
number. She answered the third call and spoke briefly with the
caller, who asked for Linda. The mother replied that Linda was
not home. After the caller hung up, the mother dialed the
number appearing as the last call on her phone and learned that
the number belonged to the defendant. Linda was interviewed
about the telephone calls by a police detective who was familiar
with the defendant's prior criminal conduct. He described her
as "extremely shaken" and she expressed her fear of the
defendant. She stated that she "could not believe that [the
harassment] was happening again."
The defendant also telephoned Susan's childhood home.
Susan testified about the telephone calls before the grand jury.
Portions of her testimony were submitted as an exhibit at the
probation revocation hearing. She related that the defendant
spent ten years terrorizing her and her family in the 1990s.
When Susan learned that the defendant had been released from
prison, she moved her elderly mother out of her childhood home
out of fear that the defendant would target Susan and her family
again. Telephone records obtained during the investigation
4 showed six telephone calls from the defendant's phone number
were placed to Susan's prior home. The first call was made on
April 25, four calls were made on April 27, and one call on
April 28. None of these telephone calls was answered. Susan
was "[t]errified" on learning the defendant had called her
mother's home.
Discussion. "In a probation revocation hearing, the issue
to be determined is not guilt beyond a reasonable doubt but,
rather, whether the probationer more likely than not violated
the conditions of his probation" (citation omitted).
Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 29 (2020).
"Thus, we uphold a judge's finding of a probation violation if
it is supported by a preponderance of the evidence. . . . The
decision to revoke probation, based on a violation shown by a
preponderance of the evidence, lies within the discretion of the
judge." Id. The defendant first argues that the judge abused
his discretion because the evidence did not establish by a
preponderance of the evidence that he had committed new criminal
offenses. We disagree.
"To support the complaint for criminal harassment, the Commonwealth must show that there is probable cause that (1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct . . . on each occasion; (3) the conduct . . . [was] of such a nature that [it] seriously alarmed the victim; (4) the conduct . . . [was] of such a nature that [it] would cause a reasonable person to suffer
5 substantial emotional distress; and (5) the defendant committed the conduct . . . 'willfully and maliciously'" (quotations and citation omitted).
Commonwealth v. Brennan, 481 Mass. 146, 149-150 (2018).
The defendant contests the sufficiency of the evidence with
regard to the fourth element only. He claims that the conduct
at issue -– dialing a telephone number -– was not illegal and
would not cause a reasonable person to suffer substantial
emotional distress. This argument ignores our case law which
holds that even innocuous conduct may constitute harassment in
certain circumstances. "A defendant's otherwise legal conduct
may qualify as an act of harassment when considered with other
evidence." Brennan, 481 Mass. at 150. Here, the other evidence
the judge could consider consisted of the defendant's prior
history of harassing conduct and, more importantly, the
defendant's previous intimidating conduct toward Linda, Susan,
and their families. Both Linda and Susan expressed their fear
that the defendant would recommence a pattern of harassment
against them. There was ample evidence from which the judge
could conclude not only that the victims were seriously alarmed
by the defendant's conduct but also that "any reasonable person
would be greatly alarmed and experience severe emotional
distress if subjected to similar circumstances." Commonwealth
v. O'Neil, 67 Mass. App. Ct. 284, 294 (2006). See Commonwealth
v. Lehan, 100 Mass. App. Ct. 246, 253 (2021).
6 Next, the defendant argues that the order of revocation
violated his right to due process because he was not provided
with notice that attempting to contact either Linda or Susan
could result in criminal charges. This argument misses the
mark. It matters not that the no contact order set forth as a
special condition of the defendant's probation did not include
either Linda or Susan because the probation contract clearly
stated that the defendant was required to obey all State laws.
The condition requiring the defendant to obey all State laws
provided reasonable guidance that a person of reasonable
intelligence would understand that engaging in criminal activity
was prohibited. Put another way, the revocation of the
defendant's probation was consistent with due process because he
received notice that the commission of a new crime could lead to
a revocation of his probation. See Commonwealth v. Ruiz, 453
Mass. 474, 475 (2009) (due process requires that probationers
"receive fair warning of conduct that may result in the
revocation of probation").
Lastly, the defendant argues that the order of revocation
did not comport with due process because the criminal harassment
statute is unconstitutionally vague as applied to him. This
argument is similarly unavailing. First, we note that the
Supreme Judicial Court has held that the statute is not
unconstitutional on its face as it is neither overbroad nor
7 vague. See Commonwealth v. Johnson, 470 Mass. 300, 308-309
(2014). Second, as discussed above, while it is true that the
placement of an (unanswered) telephone call by itself would not
ordinarily constitute an act of harassment, under the
circumstances presented the defendant had notice that he could
be held criminally liable for any act of harassment and that any
attempt to contact one of the persons whom he previously had
subjected to harassment would fall into that category.
Accordingly, viewed in context, the revocation of the
defendant's probation was consistent with due process.
Order revoking probation and imposing sentence affirmed.
By the Court (Vuono, Singh & Englander, JJ. 6),
Clerk
Entered: November 1, 2023.
6 The panelists are listed in order of seniority.