D.C. v. K.D.

• Court: Massachusetts Appeals Court
• Decided: June 16, 2025
• Docket: 24-P-0697
• Status: Unpublished

Opinion

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

24-P-697

D.C.

vs.

K.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, K.D., appeals from the issuance of a

harassment prevention order in favor of the plaintiff, D.C.,

pursuant to G. L. c. 258E, § 3. We affirm.

Background. On January 18, 2024, the plaintiff filed a

complaint for a harassment prevention order. A judge of the

District Court scheduled a two-party hearing with notice to the

defendant. On February 29, 2024, both parties, represented by

counsel, appeared and testified at the hearing. The parties

lived next door to each other and had an antagonistic and

hostile relationship involving an ongoing dispute over their

property lines. The plaintiff's testimony, which the judge

credited, included her account of the defendant's coming to her house, pinning her against the wall, spitting in her face, and

touching her shoulders. The plaintiff testified that she was

able to call 911 and scream for help. The plaintiff also told

the judge about a second incident where the defendant called the

police to ask them to arrest her for trespassing and told her,

"I'm going to make your life a living hell, and you're going to

regret it." The plaintiff asked the police officer to walk her

to the door because she did not want to go past the defendant

alone. She also testified that the defendant made unconsented

physical contact with her when he extended his arm against her

arm while she was in the court clerk's office on the morning of

the court hearing. At the conclusion of the hearing, the judge

credited the plaintiff's testimony and issued the harassment

prevention order for one year.

Discussion. In reviewing the issuance of a harassment

prevention order, we consider whether the judge erred in finding

"by a preponderance of the evidence, together with all

permissible inferences, that the defendant had 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.'"

Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016), quoting Seney

v. Morhy, 467 Mass. 58, 60 (2014).

2 We conclude that the record supports the judge's finding

that the defendant committed three or more acts of harassment

under G. L. c. 258E. The judge had the opportunity to evaluate

the witnesses' demeanor and credited the plaintiff's testimony

about the defendant's three acts. See Commonwealth v. Werner,

81 Mass. App. Ct. 689, 698 (2012) ("We are in no position to

substitute our judgment for that of the judge on credibility

questions").

The defendant contends that his physical contact with the

plaintiff in the clerk's office was not made with the intent to

place the plaintiff in fear of physical harm. Viewing that

contact in the context of the parties' tense relationship, the

judge permissibly found that the contact was intended to, and in

fact did, intimidate the plaintiff immediately before the court

hearing. We will not disturb a judge's factual findings unless

they are clearly erroneous. DeMayo v. Quinn, 87 Mass. App. Ct.

115, 117 (2015), citing Millennium Equity Holdings, LLC v.

Mahlowitz, 456 Mass. 627, 637 (2010).

The defendant argues that his statement, "I'm going to make

your life a living hell, and you're going to regret it," was not

made with the intent to place the plaintiff in fear of physical

harm. When an act consists solely of speech, it "must be either

a 'true threat' . . . or 'fighting words.'" A.R. v. L.C., 93

Mass. App. Ct. 758, 760 (2018), quoting O'Brien v. Borowski, 461

3 Mass. 415, 425 (2012). True threats include "direct threats of

imminent physical harm" and "words or actions that -- taking

into account the context in which they arise -- cause the victim

to fear such [imminent physical] harm now or in the future."

O'Brien, supra. "A true threat does not require 'an explicit

statement of an intention to harm the victim as long as

circumstances support the victim's fearful or apprehensive

response.'" O'Brien, supra at 424, quoting Commonwealth v.

Chou, 433 Mass. 229, 234 (2001).

Viewed in the context of the parties' ongoing conflict and

the defendant's other hostile and unwanted conduct towards the

plaintiff, the record supports the judge's conclusion that the

defendant's statement that "I'm going to make your life a living

hell, and you're going to regret it" caused the plaintiff to

fear imminent physical harm. See A.T. v. C.R., 88 Mass. App.

Ct. 532, 536 (2015) (defendant's threat to "make your life a

living hell" fell within the definition of "true threat"). 1 We

1 The defendant also contends that the installation of a camera prior to the plaintiff's moving next door and his videotaping of the plaintiff did not evince the requisite intent to place the plaintiff in fear of harm. As the judge's order was based on three other qualifying acts of harassment, we need not address the sufficiency of this fourth act.

4 discern no error in the judge's findings and his decision to

issue the harassment prevention order. 2

Harassment prevention order dated February 29, 2024, affirmed.

By the Court (Sacks, Hershfang & Tan, JJ. 3),

Clerk

Entered: June 16, 2025.

2 The defendant lastly contends that issuance of the harassment prevention order unconstitutionally deprives the defendant of the use of his property. The defendant, however, does not cite any pertinent authority to support the proposition that issuance of a harassment protection order in favor of an aggrieved neighbor would result in deprivation of the defendant's constitutional rights. See O'Brien, 461 Mass. at 420 (statutory scheme governing issuance of harassment prevention orders under G.L. c. 258E "carefully crafted by the Legislature" to address acts of harassment and constitutionally unprotected speech).

3 The panelists are listed in order of seniority.