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15-P-1612 Appeals Court
J.C. vs. J.H.1
No. 15-P-1612.
Essex. November 14, 2016. - September 14, 2017.
Present: Sullivan, Maldonado, & Neyman, JJ.
Civil Harassment. Harassment Prevention. Protective Order. Statute, Construction. Evidence, Intent, Presumptions and burden of proof. Practice, Civil, Burden of proof, Presumptions and burden of proof. Firearms.
Complaint for protection from harassment filed in the Lynn Division of the District Court Department on October 14, 2014.
A hearing to extend the harassment prevention order was had before Albert S. Conlon, J.
J.H., pro se. Christine I. Wetzel for the plaintiff.
SULLIVAN, J. The defendant, J.H., appeals from a civil
harassment prevention order issued pursuant to G. L. c. 258E.2
1 We identify the parties by their initials in order to protect the identity of the plaintiff, in accordance with 18 U.S.C. § 2265(d)(3) (2012). 2
He contends that his former girl friend, the plaintiff, J.C.,
did not prove three or more acts of harassment as defined by
G. L. c. 258E, § 1. He further contends that the judge was
without authority to order the surrender of his firearms. For
the reasons that follow, we vacate so much of the order as
required the defendant to surrender his firearms.
Background. We summarize the facts consistent with the
judge's findings and rulings based on the affidavits filed and
the testimony given at the hearing on the extension of the
harassment prevention order. The defendant initiated a
relationship with the plaintiff in August of 2010 after meeting
her at an Alcoholics Anonymous (AA) meeting. The plaintiff
ended their relationship in April of 2013. After the
relationship ended, the defendant made the plaintiff "very
uncomfortable." The plaintiff changed her activities to avoid
him. She did so because he was "pushy" and "suggested [they]
get together for sex," even though she said no and repeatedly
stated the relationship was over. She attended a different AA
meeting and switched to a different yoga studio than the one she
had frequented when she was with the defendant. The defendant
2 The defendant appeals from the extension of the order that entered on the docket on November 7, 2014. Notwithstanding the expiration of that order (and an extension entered on November 6, 2015), the defendant's appeal is not moot. See Seney v. Morhy, 467 Mass. 58, 62 (2014). 3
continued to contact the plaintiff. He sent her text messages,
and she responded that she wanted to be left alone.
In July of 2013, the plaintiff received a series of text
messages from the defendant.3 In the first message, the
defendant texted, "You should be scared. I know where you
practice yoga. See you at yoga, bitch!" The plaintiff asked
him not to contact her, and sought the assistance of the police,
who told the defendant to cease all contact with the plaintiff.
Undeterred, the defendant continued to contact her and appeared
at the plaintiff's yoga class in November or December of 2013.
The defendant looked at the plaintiff "angrily." The plaintiff
was fearful that he would follow her home, and she left the
class early to avoid him.
Other text messages set a similar tone and provide further
context. In a second text message sent in July, 2013, the
defendant texted the plaintiff, "You don't get it. You have
much more to lose in this than I do. If you're so stupid to
tell anyone in AA about us, you'll be fucked." He then texted,
"If you tell [your boy friend] about us, I'll send him naked
pictures of you that'll prove you're a slut. I'm keeping the
pictures for blackmail purposes." The defendant then sent
numerous text messages to the plaintiff's boy friend. A third
3 It is unclear from the record whether these messages were all sent on the same day or on different days. 4
text message the defendant sent to the plaintiff during the
month of July, 2013, stated, "And, if you tell [your boy friend]
about the affair, I'll tell him how crazy and fucked up you are.
I will ruin you. Don't cross me. This will end badly for you.
You will pay the consequences."4
As noted above, the plaintiff telephoned her local police
department and, while no report was filed, the police telephoned
the defendant and told him not to contact the plaintiff. The
defendant continued to contact the plaintiff, who told him to
leave her alone.
In addition to following the plaintiff to the yoga studio,
the defendant also appeared at a Starbucks in December of 2013,
where the plaintiff was seated with a friend. "He was very red
in the face and made extremely intimidating facial expressions
towards [her]." The plaintiff immediately left the Starbucks.
The defendant continued to text the plaintiff after this
incident, telling her that she should apologize for going to the
police.
On January 1, 2014, the plaintiff filed a police report
with the local police. Once again, a police officer telephoned
defendant continued to contact the plaintiff through electronic
4 In another text message, the defendant referred to her as a "whore." 5
mail messages (e-mail), text messages, and letters. In May of
2014, the plaintiff went again to the police to report that the
defendant continued to contact her and that the defendant had
approached the plaintiff's boy friend and asked to speak to him.
The police advised the plaintiff of her right to seek a
harassment prevention order. The defendant continued to try to
contact the plaintiff through a friend. He sent the plaintiff a
letter in April of 2014 in which he stated, "I will admit to my
jealousy." He promised not to contact her again, and asked that
she not go to the police.
On July 30, 2014, the defendant appeared at the plaintiff's
workplace, a private home where she was caring for children. He
tried to talk to her, and blocked the driveway with his truck.
The plaintiff "immediately took the kids inside their house,"
afraid that he would try to engage her. After that incident,
the plaintiff received letters, text messages, and a flower
delivery from the defendant, all in an effort to rekindle the
relationship.5 At this juncture the relationship had been over
for fifteen months, and both the plaintiff and the local police
department had made numerous unsuccessful efforts to dissuade
the defendant from contacting and following her.
5 At the hearing on the extension of the order, the defendant admitted that both the plaintiff and the police asked him to stop contacting the plaintiff and that he did not do so. 6
On October 14, 2014, the plaintiff filed a complaint for an
ex parte harassment prevention order. The ex parte order
issued, and the order was extended for one year at a hearing
held on November 7, 2014, at which the judge found that the
plaintiff had satisfied her burden in light of the "overwhelming
number" of contacts, "particularly in the face of [the
defendant] being told by the police that [he] just shouldn't be
going there." The judge also specifically noted the fact that
the defendant had followed the plaintiff to the yoga studio and
Starbucks.
Discussion. 1. The order. When reviewing a harassment
prevention order pursuant to 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.'"
A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting from
G. L. c. 258E, § 1, inserted by St. 2010, c. 23. "The plaintiff
bears the burden of proving 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 that
each act was intended by the defendant to place the plaintiff in 7
fear of physical harm or fear of physical damage to property."
A.T. v. C.R., supra (quotation omitted). See G. L. c. 258E,
§ 1; O'Brien v. Borowski, 461 Mass. 415, 420 (2012); Seney v.
Morhy, 467 Mass. 58, 60 (2014); Van Liew v. Stansfield, 474
Mass. 31, 36-38 (2016); V.J. v. N.J., 91 Mass. App. Ct. 22, 25
(2017).
The record reflects an abundance of acts of harassment that
meet the statutory criteria. Because there are multiple acts,
many of which could support the extension of the order, we group
the conduct into three categories for ease of our discussion.
For the purpose of our analysis, we consider each of the
following as an act within the meaning of the statute: (1) text
messages telling the plaintiff that she "should be scared,"
calling her a "bitch," and telling her he knew how to find her
at yoga, followed by his appearance at the yoga studio;6 (2) text
messages telling the plaintiff that she would be "fucked" and/or
blackmailed, referring to her as a "slut" and a "whore," telling
the plaintiff not to "cross [him]," that "[t]his will end badly
for [her]," and that she would "pay the consequences," followed
by confronting her at Starbucks; and (3) following her to her
place of work, which she was not free to leave, after being
6 Here, for example, the text message from the defendant telling the plaintiff that she should be scared because he knew where she goes to yoga, and appearing at the yoga studio (in light of the text), constitute separate acts, but we analyze them in tandem. 8
repeatedly told to leave her alone, and after promising to leave
her alone.
The record supports the judge's conclusion that the
plaintiff was scared and intimidated by these acts and that the
defendant maliciously intended to cause and, in fact, caused
intimidation and a fear of physical harm. The plaintiff
explicitly stated in her affidavit that she was fearful, and the
judge credited her statement.7 Fear is judged by a subjective,
not an objective, standard under the statute. See A.T. v. C.R.,
88 Mass. App. Ct. at 537.8 The judge considered the surrounding
circumstances in crediting her affidavit. The judge also could
consider the defendant's persistence despite repeated
admonitions to stop, as well as his disregard for the directives
of law enforcement, as independent bases to find that the
plaintiff was actually intimidated and feared for her physical
safety.
With respect to the defendant's subjective intent, his
angry texts and "repeated and escalating harassment of the
plaintiff . . . would reasonably support an inference that he
intended to cause the plaintiff fear and intimidation." Id. at
7 The judge was permitted to credit the plaintiff's affidavit and further corroboration was not required. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 148 & n.10 (2006). 8 "[T]he question is only whether [the plaintiff] in fact was placed in fear, not whether the fear was reasonable." Gassman v. Reason, 90 Mass. App. Ct. 1, 9 (2016). 9
538. The plaintiff told the defendant repeatedly to leave her
alone, but he did not. Admittedly jealous, he ignored the
admonitions of the police. The plaintiff went to considerable
lengths to avoid seeing the defendant, but he followed her to a
new yoga class, to a coffee shop, and even to the private home
where she cared for small children. This behavior was combined
with name-calling ("bitch," "whore," and "slut"), see V.J. v.
N.J., 91 Mass. App. Ct. at 26, threats to blackmail her, threats
to "ruin" her, threats that this would "end badly" for her, and
the very direct statement in his July, 2013, text message that
she "should be scared." The evidence is sufficient to support a
finding with respect to each of the three acts that the
defendant acted out of cruelty, hostility, or revenge, that the
acts were directed at the plaintiff, and that the defendant
intended that "each" act carried with it the "intent to cause
fear, intimidation, abuse, or property damage." Seney v. Morhy,
467 Mass. at 63 (emphasis supplied; quotation omitted).
Moreover, the conduct was sustained over a fifteen-month
period, and should be viewed in that context. "In the
determination 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.'" A.T. v. C.R., 88 Mass. App. Ct.
at 535, quoting from O'Brien v. Borowski, 461 Mass. at 426 n.8. 10
By the time the defendant appeared at the private home where the
plaintiff worked, he had repeatedly texted the plaintiff and had
followed her twice. Knowing that she had twice left when he had
followed her, he picked a location that she would be unable to
leave, because of her obligations to the children. Viewing the
three acts in the context of what had come before, "it was
reasonable for the judge to infer the existence of the . . .
defendant's malicious intent." V.J. v. N.J., 91 Mass. App. Ct.
at 28.
For the same reasons, the text messages were not
constitutionally protected speech, as the defendant contends,
but "true threats." O'Brien v. Borowski, supra at 425. A "true
threat" is a statement made with the purpose of communicating "a
serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals."
Id. at 423 (quotation omitted). A true threat need not
"threaten imminent harm; sexually explicit or aggressive
language 'directed at and received by an identified victim may
be threatening, notwithstanding the lack of evidence that the
threat will be immediately followed by actual violence or the
use of physical force.'" Id. at 424, quoting from Commonwealth
v. Chou, 433 Mass. 229, 235 (2001). Here the threats were
explicit. The defendant's first threat, that the plaintiff
"should be scared," was explicit. His conduct in showing up at 11
the yoga studio reinforced and magnified the potential danger
posed by the initial text messages, and placed the subsequent
sexualized text messages warning her that this would "end badly"
for her in a particularized context. See A.T. v. C.R., supra;
V.J. v. N.J., supra.
In these circumstances, the plaintiff was entitled to
"protect[ion] . . . from the fear of violence and from the
disruption that fear engenders, in addition to protect[ion]
. . . from the possibility that threatened violence will occur."
O'Brien, supra at 423, quoting from Virginia v. Black, 538 U.S.
343, 359-360 (2003).
2. Firearms. The order to surrender the firearms stands
on a different footing. Unlike abuse protection orders under
G. L. c. 209A, § 3B, G. L. c. 258E does not provide for the
surrender of firearms upon the issuance of a harassment
prevention order. See G. L. c. 258E, § 3(a).9 We consider this
9 Section 3(a) of c. 258E, inserted by St. 2010, c. 23, provides:
"A person suffering from harassment may file a complaint in the appropriate court requesting protection from such harassment. A person may petition the court under this chapter for an order that the defendant: "(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor; "(ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor; 12
difference between the statutes to be dispositive for the
following reasons.
"In interpreting the meaning of a statute, we look first to
the plain statutory language. Where the language of a statute
is clear and unambiguous, it is conclusive as to legislative
intent . . . and the courts enforce the statute according to its
plain wording . . . so long as its application would not lead to
an absurd result." Worcester v. College Hill Properties, LLC,
465 Mass. 134, 138 (2013) (quotation omitted). General Laws
c. 258E, § 3(a), authorizes four separate forms of relief. The
statute limits the relief permitted under an order to those four
categories. Unlike G. L. c. 209A, c. 258E omits the all-
important phrase "including, but not limited to" from the
introductory sentence of § 3(a). Contrast G. L. c. 209A, § 3,
as appearing in St. 1990, c. 403, § 3 ("A person suffering from
abuse from an adult or minor family or household member may file
a complaint in the court requesting protection from such abuse,
including, but not limited to, the following orders . . .").
"(iii) remain away from the plaintiff's household or workplace, whether the defendant is an adult or minor; and "(iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of- pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney's fees." 13
Nor does G. L. c. 258E contain a separate section
authorizing the suspension or surrender of a license to carry
firearms, a firearms identification card, and the surrender of
firearms themselves. Contrast G. L. c. 209A, § 3B. The
Legislature took great care in G. L. c. 209A, § 3B, to mandate
the surrender of firearms, a firearm license, or a firearm
identification card in certain circumstances. The Legislature
also provided procedural protections to those whose firearm
license, firearm identification card, or firearms had been
surrendered, and considered important questions of public safety
by designating those to whom the firearm should be surrendered.
The omission of a similar provision, with similar protections,
from G. L. c. 258E constitutes a clear expression of legislative
intent. "The omission of particular language from a statute is
deemed deliberate where the Legislature included such omitted
language in related or similar statutes." Fernandes v.
Attleboro Hous. Authy., 470 Mass. 117, 129 (2014). See Thomas
v. Department of State Police, 61 Mass. App. Ct. 747, 754
(2004). See also Commonwealth v. Gagnon, 439 Mass. 826, 833
(2003), quoting from 2A Singer, Sutherland Statutory
Construction § 46.06, at 194 (6th ed. rev. 2000) ("[W]here the
legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where
excluded"). 14
The plaintiff contends that an order compelling the
surrender of firearms is permitted under G. L. c. 258E, § 3(g),
which provides that "[a]n action commenced under this chapter
shall not preclude any other civil or criminal remedies." To
the extent that this language creates an ambiguity in the
statute, "we look to external sources, including the legislative
history of the statute, its development, its progression through
the Legislature, prior legislation on the same subject, and the
history of the times." Worcester v. College Hill Properties,
LLC, 465 Mass. at 139, quoting from 81 Spooner Rd. LLC v.
Brookline, 452 Mass. 109, 115 (2008).
The legislative history of G. L. c. 258E forecloses the
relief the plaintiff seeks in a c. 258E proceeding. Language
nearly identical to G. L. c. 209A, § 3B, was included in one of
the initial versions of the bill which led to c. 258E, "but this
element was removed from later versions and from the bill
ultimately enacted. Compare 2009 Senate Doc. No. 1611, An Act
relative to sexual assault and stalking restraining orders
(filed Jan. 14, 2009), with 2009 Senate Doc. No. 2185, An Act to
prevent harassment at § 1 (filed Oct. 26, 2009); 2009 Senate
Doc. No. 2212, An Act relative to harassment prevention orders
at § 1 (filed Nov. 17, 2009); and c. 258E, § 1." O'Brien v.
Borowski, 461 Mass. at 427-428. "This provision was stricken by
the Legislature amidst general concerns related to Second 15
Amendment rights, and more specific concerns that individuals
could use the statute as a tool of revenge against law
enforcement officials whose profession requires them to carry
firearms." Flynn-Poppey & Abhar, Chapter 258E Harassment
Prevention Orders -- Balancing the Rights of Victims and
Defendants, 94 Mass. L. Rev. 23, 26 (2011).10 We do not consider
the language of G. L. c. 258E, § 3(g), to be so broad as to
encompass a remedy that the Legislature expressly rejected. See
Fernandes v. Attleboro Hous. Authy., 470 Mass. at 129. The
intent of the Legislature is clear.
It is also important to note, however, that the scope of
relief outlined in G. L. c. 258E, § 3(g), together with G. L.
c. 258E, § 4, makes clear that the criminal enforcement
provisions of c. 258E are not exclusive, and that pursuit of
other criminal charges is permitted. The language in § 3(g)
also plainly permits an applicant for a harassment prevention
order to pursue other civil claims. Finally, because § 3(a) &
(g) apply only to actions commenced "under this chapter," ibid.,
they do not curtail the discretion of an issuing authority to
revoke a firearms license "for cause at the will of the
authority issuing the same," Godfrey v. Chief of Police of
Wellesley, 35 Mass. App. Ct. 42, 43 (1993), quoting from G. L.
10 General Laws c. 258E also departed from G. L. c. 209A in other respects as well. See Flynn-Poppey & Abhar, supra at 26. 16
c. 140, § 131, as appearing in St. 1986, c. 481, § 2,11 or to
file a petition to revoke a firearm identification card, see
G. L. c. 140, § 129B(1 1/2)(a).
Conclusion. The portion of the order entered November 7,
2014, requiring the defendant to surrender his firearms is
vacated. The order is otherwise affirmed.
So ordered.
11 The record reflects that the defendant was told by the police that he could lose his license to carry if he persisted in contacting the plaintiff.