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-151
J.B.1
vs.
D.B.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, D.B., appeals from the extension of a
harassment prevention order issued pursuant to G. L. c. 258E,
§ 3. Concluding that the evidence supported the judge's
conclusion that the defendant committed an act of criminal
harassment and that such evidence is sufficient to permit the
extension of a harassment prevention order, we affirm.
1. Standard of review. "Our review of the order at issue
is 'or an abuse of discretion or other error of law.'"
Wilhelmina W. v. Uri. U., 102 Mass. App. Ct. 634, 637 (2023),
The plaintiff, as is her right, did not file a brief in 1
this appeal. Although the order has since expired, this does not make the appeal moot. See A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 270 n.1 (2017). quoting Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256
(2022). "[W]here we are able to discern a reasonable basis for
the order in the judge's rulings and order, no specific findings
are required." Vera V. v. Seymour S., 98 Mass. App. Ct. 315,
318 (2020), quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 393
(2018).
2. Basis for extension. There are two permissible bases
for granting a harassment prevention order. See G. L. c. 258E,
§ 1. "Most harassment prevention orders are granted based on
'[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 does in fact
cause fear, intimidation, abuse or damage to property.'"
Yasmin Y., 101 Mass. App. Ct. at 256, quoting Orla O. v.
Patience P., 100 Mass. App. Ct. 126, 127 (2021). "There is,
however, another basis for a harassment prevention order: proof
that the defendant '"by force, threat, or duress cause[d the
plaintiff] to involuntarily engage in sexual relations" [or
proof that the] defendant committed any of twelve specifically
enumerated sex crimes.'" Yasmin Y., 101 Mass. App. Ct. at 256,
quoting F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599 (2015).
One of these crimes is criminal harassment under G. L. c. 265,
§ 43A. See G. L. c. 258E, § 1.
2 Here, in ruling on the extension, the judge repeated the
language of the criminal harassment statute, demonstrating his
intention to extend the order based on the defendant's
commission of an act of criminal harassment. Contrary to the
defendant's argument, a judge may extend a harassment prevention
order on this basis. See A.S.R. v. A.K.A., 92 Mass. App. Ct.
270, 276-277 (2017).2
3. Evidence supporting criminal harassment. To establish
the crime of criminal harassment, a party must prove that the
defendant "willfully and maliciously engage[d] in a knowing
pattern of conduct or series of acts over a period of time
directed at a specific person, which seriously alarm[ed] that
person and would cause a reasonable person to suffer substantial
emotional distress." G. L. c. 265, § 43A (a). See O'Brien v.
Borowski, 461 Mass. 415, 420 (2012). Specifically, criminal
harassment requires proof of "three or more predicate acts of
harassment that were 'directed at a specific person.'"
Commonwealth v. Brennan, 481 Mass. 146, 151 (2018), quoting
Commonwealth v. Johnson, 470 Mass. 300, 312 (2014). These
2 We need not address the defendant's argument -- raised for the first time at oral argument -- that a harassment prevention order extended on this basis requires a criminal charge or conviction. See Prism Group, Inc. v. Slingshot Techs. Corp., 104 Mass. App. Ct. 785, 797 n.8 (2024) (argument raised for first time in oral argument waived). We note, however, that there was no such charge or conviction in A.S.R., 92 Mass. App. Ct. 271-274.
3 predicate acts must be done "willfully and maliciously" by the
defendant. G. L. c. 265, § 43A (a). As applicable here,
"[w]ilful conduct is that which is 'intentional rather than
accidental'; it requires no evil intent, ill will, or
malevolence." Brennan, 481 Mass. at 154, quoting Commonwealth
v. McDonald, 462 Mass. 236, 242 (2012). Malicious conduct, for
purposes of criminal harassment, "is an 'intentional, wrongful
act done willfully or intentionally against another without
legal justification or excuse.'" Brennan, supra, quoting
McDonald, supra.
In contrast to civil harassment, we have "specifically
rejected the argument that a defendant must have 'act[ed] out of
"cruelty, hostility, or revenge"' to be guilty of criminal
harassment." Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221
(2017), quoting Commonwealth v. Paton, 63 Mass. App. Ct. 215,
219 (2005).3 Further, malice can be inferred through conduct
alone. See Paton, supra at 219-220 ("[T]he defendant's behavior
alone was sufficient in this case for a rational trier of fact
3 There is a specific definition of "malicious" for purposes of the first definition of civil harassment, that of three or more acts committed with the intent to cause fear, intimidation, abuse, or damage to property. G. L. c. 258E, § 1. For those purposes, "malicious" is defined as "characterized by cruelty, hostility or revenge." G. L. c. 258E, § 1. That definition, however, applies only to the word "malicious" "[a]s used in this chapter [258E]." G. L. c. 258E, § 1. It does not change the definition of "maliciously" in G. L. c. 265, § 43A (a).
4 to conclude that the defendant acted maliciously. The
defendant's staring at the victim in the bar without speaking
and then unexpectedly appearing in proximity to her in other
places . . . caused the victim anxiety and apprehension").
To satisfy the statutory definition of criminal harassment,
the harassing acts "must 'seriously alarm[]' the targeted
victim." O'Brien, 461 Mass. at 420, quoting G. L. c. 265,
§ 43A. The plaintiff, however, does not have to be aware of, or
be alarmed by, the defendant's conduct at the time it occurs.
See Commonwealth v. Walters, 472 Mass. 680, 687, 699 (2015),
S.C., 479 Mass. 277 (2018). Instead, "the 'cumulative effect of
the defendant's pattern of conduct [must] "seriously alarm[]"
[the plaintiff].'" Brennan, 481 Mass. at 152, quoting Walters,
supra at 699. It is not necessary "that each individual
incident was alarming." Brennan, supra, quoting Walters, supra.
Finally, "the pattern of harassment [must be such that] 'would
cause a reasonable person to suffer substantial emotional
distress'." O'Brien, supra, quoting G. L. c. 265, § 43A.
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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
24-P-151
J.B.1
vs.
D.B.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, D.B., appeals from the extension of a
harassment prevention order issued pursuant to G. L. c. 258E,
§ 3. Concluding that the evidence supported the judge's
conclusion that the defendant committed an act of criminal
harassment and that such evidence is sufficient to permit the
extension of a harassment prevention order, we affirm.
1. Standard of review. "Our review of the order at issue
is 'or an abuse of discretion or other error of law.'"
Wilhelmina W. v. Uri. U., 102 Mass. App. Ct. 634, 637 (2023),
The plaintiff, as is her right, did not file a brief in 1
this appeal. Although the order has since expired, this does not make the appeal moot. See A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 270 n.1 (2017). quoting Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256
(2022). "[W]here we are able to discern a reasonable basis for
the order in the judge's rulings and order, no specific findings
are required." Vera V. v. Seymour S., 98 Mass. App. Ct. 315,
318 (2020), quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 393
(2018).
2. Basis for extension. There are two permissible bases
for granting a harassment prevention order. See G. L. c. 258E,
§ 1. "Most harassment prevention orders are granted based on
'[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 does in fact
cause fear, intimidation, abuse or damage to property.'"
Yasmin Y., 101 Mass. App. Ct. at 256, quoting Orla O. v.
Patience P., 100 Mass. App. Ct. 126, 127 (2021). "There is,
however, another basis for a harassment prevention order: proof
that the defendant '"by force, threat, or duress cause[d the
plaintiff] to involuntarily engage in sexual relations" [or
proof that the] defendant committed any of twelve specifically
enumerated sex crimes.'" Yasmin Y., 101 Mass. App. Ct. at 256,
quoting F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599 (2015).
One of these crimes is criminal harassment under G. L. c. 265,
§ 43A. See G. L. c. 258E, § 1.
2 Here, in ruling on the extension, the judge repeated the
language of the criminal harassment statute, demonstrating his
intention to extend the order based on the defendant's
commission of an act of criminal harassment. Contrary to the
defendant's argument, a judge may extend a harassment prevention
order on this basis. See A.S.R. v. A.K.A., 92 Mass. App. Ct.
270, 276-277 (2017).2
3. Evidence supporting criminal harassment. To establish
the crime of criminal harassment, a party must prove that the
defendant "willfully and maliciously engage[d] in a knowing
pattern of conduct or series of acts over a period of time
directed at a specific person, which seriously alarm[ed] that
person and would cause a reasonable person to suffer substantial
emotional distress." G. L. c. 265, § 43A (a). See O'Brien v.
Borowski, 461 Mass. 415, 420 (2012). Specifically, criminal
harassment requires proof of "three or more predicate acts of
harassment that were 'directed at a specific person.'"
Commonwealth v. Brennan, 481 Mass. 146, 151 (2018), quoting
Commonwealth v. Johnson, 470 Mass. 300, 312 (2014). These
2 We need not address the defendant's argument -- raised for the first time at oral argument -- that a harassment prevention order extended on this basis requires a criminal charge or conviction. See Prism Group, Inc. v. Slingshot Techs. Corp., 104 Mass. App. Ct. 785, 797 n.8 (2024) (argument raised for first time in oral argument waived). We note, however, that there was no such charge or conviction in A.S.R., 92 Mass. App. Ct. 271-274.
3 predicate acts must be done "willfully and maliciously" by the
defendant. G. L. c. 265, § 43A (a). As applicable here,
"[w]ilful conduct is that which is 'intentional rather than
accidental'; it requires no evil intent, ill will, or
malevolence." Brennan, 481 Mass. at 154, quoting Commonwealth
v. McDonald, 462 Mass. 236, 242 (2012). Malicious conduct, for
purposes of criminal harassment, "is an 'intentional, wrongful
act done willfully or intentionally against another without
legal justification or excuse.'" Brennan, supra, quoting
McDonald, supra.
In contrast to civil harassment, we have "specifically
rejected the argument that a defendant must have 'act[ed] out of
"cruelty, hostility, or revenge"' to be guilty of criminal
harassment." Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221
(2017), quoting Commonwealth v. Paton, 63 Mass. App. Ct. 215,
219 (2005).3 Further, malice can be inferred through conduct
alone. See Paton, supra at 219-220 ("[T]he defendant's behavior
alone was sufficient in this case for a rational trier of fact
3 There is a specific definition of "malicious" for purposes of the first definition of civil harassment, that of three or more acts committed with the intent to cause fear, intimidation, abuse, or damage to property. G. L. c. 258E, § 1. For those purposes, "malicious" is defined as "characterized by cruelty, hostility or revenge." G. L. c. 258E, § 1. That definition, however, applies only to the word "malicious" "[a]s used in this chapter [258E]." G. L. c. 258E, § 1. It does not change the definition of "maliciously" in G. L. c. 265, § 43A (a).
4 to conclude that the defendant acted maliciously. The
defendant's staring at the victim in the bar without speaking
and then unexpectedly appearing in proximity to her in other
places . . . caused the victim anxiety and apprehension").
To satisfy the statutory definition of criminal harassment,
the harassing acts "must 'seriously alarm[]' the targeted
victim." O'Brien, 461 Mass. at 420, quoting G. L. c. 265,
§ 43A. The plaintiff, however, does not have to be aware of, or
be alarmed by, the defendant's conduct at the time it occurs.
See Commonwealth v. Walters, 472 Mass. 680, 687, 699 (2015),
S.C., 479 Mass. 277 (2018). Instead, "the 'cumulative effect of
the defendant's pattern of conduct [must] "seriously alarm[]"
[the plaintiff].'" Brennan, 481 Mass. at 152, quoting Walters,
supra at 699. It is not necessary "that each individual
incident was alarming." Brennan, supra, quoting Walters, supra.
Finally, "the pattern of harassment [must be such that] 'would
cause a reasonable person to suffer substantial emotional
distress'." O'Brien, supra, quoting G. L. c. 265, § 43A.
Here, the defendant took over one thousand photos of the
plaintiff over forty days while they were at work together, each
of which could be an act. In addition, on the evening the
defendant was fired, he appeared approximately four hundred feet
from the plaintiff's home. The defendant then sent the
plaintiff a text message. The judge did not need to specify
5 three harassing acts where there "was evidence supporting a
conclusion that there were many more than three harassing acts."
A.S.R., 92 Mass. App. Ct. at 277.
That the plaintiff was not aware of the photographs at the
time they were taken would be a problem had the extension been
based on three acts "with the intent to cause fear,
intimidation, abuse or damage to property, G. L. c. 258E, § 1,
but criminal harassment has no such requirement. See O'Brien,
461 Mass. at 420. "Adding an awareness element to § 43A would
frustrate the purpose of the law." Brennan, 481 Mass. at 152.
This case is controlled by Commonwealth v. Brennan, 481
Mass. 146. There, the court found that the defendant's
placement of global positioning tracking devices on the motor
vehicles of the two victims constituted acts of criminal
harassment even though neither was aware of their placement or
of the defendant's checking the victims' locations with his
phone at the time. Id. at 154. Later, the victims became
seriously alarmed when the devices were discovered. Id.
Similarly, here, the plaintiff testified that, after she was
made aware that the defendant had taken photographs of her,
"this has been incredibly traumatic for me to think that I had
somebody that I trusted that was a colleague of mine, that we
could, I don't know, have boundaries, and I feel incredibly
violated that to find out the information that I did through the
6 investigation." In combination with evidence that the defendant
showed up in proximity to the plaintiff's home and sent the
victim a text message, this evidence provided an adequate basis
for the judge to find that the defendant committed the crime of
criminal harassment against the plaintiff.
Order dated August 25, 2023, affirmed.
By the Court (Neyman, Ditkoff & Wood, JJ.4),
Clerk
Entered: March 4, 2025.
4 The panelists are listed in order of seniority.