J.S. v. C.H.L. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, C.H.L., appeals from two orders issued pursuant to G. L. c. 258E.² The defendant argues that the evidence did not establish three or more acts of harassment as defined by G. L. c. 258E, § 1, and that the ex parte judge erred in admitting “unsubstantiated hearsay testimony.” We affirm.

Background. The plaintiff and the defendant are both graduate students at the same school, and the plaintiff works at the school library (library). In her affidavit in support of her ex parte application for the harassment prevention order, the plaintiff recounted multiple instances of the defendant's harassing conduct.

First, over the course of one day and the following morning, the defendant contacted the plaintiff several times on her cell phone asking her to spend time with him. The plaintiff made it clear that she did not want to spend time with him, but the defendant persisted. Following one overture from the defendant, the plaintiff repeated that she was “not interested” and advised that she would “block” his number if he continued to ask her to go out with him. The defendant replied with a lengthy text message. Rather than respond, the plaintiff blocked the defendant's telephone number.³

Second, on January 22, 2017, the morning after she blocked his telephone number, the defendant “marched up to” the plaintiff while she worked at her job in the library, and “said in an angry, threatening tone ‘about that text, what were you thinking?’ ” The plaintiff again made it clear that she did not want to spend time with him. The defendant then told her that she should “stop being pretty, stop wearing make-up, and stop showering.”

Third, on January 23, 2017, the defendant again approached the plaintiff while she worked at the library. This time, he approached her as soon as she opened the library and asked her if she would speak with him.⁴ When she responded that she would not speak with him and that he was harassing her, he became angry, called her an “ass,” and yelled at her for about a minute. He walked away, but then returned and told the plaintiff that she “had a terrible definition of harassment and that it would only be harassment if he was continually coming to [her] house or doing ‘unordinary’ things like that.” The plaintiff did not respond, and the defendant “stormed off.”

The plaintiff informed the school of the defendant's actions and the school issued a “no contact order” between the parties.⁵ However, the no contact order did not stop the defendant from contacting the plaintiff. After the no contact order was in place, the defendant appeared at the library while the plaintiff was present on several occasions, prompting her to call the police on one occasion. The defendant also falsely informed other students that he was in a romantic relationship with the plaintiff, moved his car so that it would be parked next to the plaintiff's car in the school parking lot, waited in and around the parking lot in the morning when the plaintiff would arrive to open the library, and stared at the plaintiff while she worked in the library.

The plaintiff stated in her affidavit that she felt afraid of the defendant because she was alone at times in the library due to her work schedule, the defendant was larger than her, and he engaged in unwanted communications with her. She also testified that she viewed online postings in which the defendant “talks about how he preys on women, women who he describes to be like me.” At the ex parte hearing, the plaintiff also stated that she thought the defendant might harm her.

In March 2017, the plaintiff filed a complaint seeking the issuance of a harassment prevention order against the defendant and an ex parte hearing was held. A judge of the District Court issued a harassment prevention order, which the defendant thereafter moved to modify. Both parties were present and represented by counsel at the extension hearing and a different judge extended the harassment prevention order for one year.⁶

Discussion. On appeal, the defendant contends that there were not three or more acts of harassment as defined by G. L. c. 258E, § 1. We disagree.

“We review an order issued under c. 258E to determine whether a fact finder could conclude 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” (quotation and citation omitted). F.W.T. v. F.T., 93 Mass. App. Ct. 376, 377-378 (2018). “[T]he acts of harassment must be wilful and ‘[m]alicious,’ the latter defined as ‘characterized by cruelty, hostility or revenge,’ ․ they must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property’ ” and they “must ‘in fact cause fear, intimidation, abuse or damage to property.’ G. L. c. 258E, § 1.” O'Brien v. Borowski, 461 Mass. 415, 420 (2012), abrogated on another ground by Seney v. Morhy, 467 Mass. 58, 60 (2014).

As outlined, supra, the plaintiff alleges multiple incidents of conduct falling within c. 258E's purview. We agree that there were at least three such incidents: after the multiple cell phone contacts, there is the January 22, 2017 encounter at the library, the January 23, 2017 encounter at the library, and the conduct following the issuance of the school's no contact order. We turn next to whether the defendant willfully committed each of these acts with the requisite intent and whether the acts caused the plaintiff to be intimidated or afraid. See F.K. v. S.C., 481 Mass. 325, 332 (2019) (three or more acts that each constitute harassment required under G. L. c. 258E).

With regard to the defendant's intent, after the plaintiff's communication to the defendant that she did not want him to contact her, his repeated actions of continuing to contact her on her cell phone, his statement to her at the library telling her to stop being pretty and not to shower or wear makeup, and his angry confrontation with her the following day at the library, “would reasonably support an inference that he intended to cause the plaintiff fear and intimidation.” ⁷ A.T. v. C.R., 88 Mass. App. Ct. 532, 538 (2015). See J.C. v. J.H., 92 Mass. App. Ct. 224, 228-229 (2017) (considering entire course of defendant's conduct, including his continuing contact after plaintiff told him “repeatedly to leave her alone”).

In addition, the record supports the extension judge's conclusion that “the defendant's pattern of continued conduct” caused the plaintiff “to feel fearful and intimidated.” The plaintiff stated in her affidavit and during her testimony that she was fearful of the defendant. See J.C., 92 Mass. App. Ct. at 228 (fear judged by subjective standard under G. L. c. 258E, § 1). “The judge also could consider the defendant's persistence despite repeated admonitions to stop ․ as [an] independent bas[is] to find that the plaintiff was actually intimidated and feared for her physical safety.” Id.⁸ On the record before us, we discern no error in the allowance and extension of the harassment prevention order in this case.⁹

Harassment prevention order dated March 27, 2017, and extension order dated May 17, 2017, affirmed.

FOOTNOTES

FOOTNOTE.  

2.   The defendant appeals from the March 2017 issuance of the harassment prevention order entered ex parte, and from the May 2017 extension of the harassment prevention order.

3.   By blocking the defendant's telephone number, the defendant would not be able to contact the plaintiff on her cell phone while using his telephone number.

4.   The plaintiff and the defendant were the only two people in the library during this interaction.

5.   It is unclear from the record what the school “no contact order” entailed. Its terms and the punishment for any violation are not evident. The extension hearing transcript does reveal that the school instituted a procedure to inform the defendant as to when the plaintiff was not working at the library, at which time he would be allowed to enter the library. A green placard was placed at the library door when the plaintiff was not present and a red placard was placed there when she was.

6.   In 2018, the harassment prevention order was extended for another year.

7.   The defendant's statements to the plaintiff were also sufficient to constitute threats. See O'Brien, 461 Mass. at 425. “[T]he ‘true threat’ doctrine applies not only to direct threats of imminent physical harm, but to words or actions that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future and evince intent on the part of the speaker or actor to cause such fear.” Id. In particular, given the context in which they were made, the defendant's statement directing the plaintiff not to shower or wear makeup and his calling her an “ass” and yelling at her can be construed as “threats.” A.T. v. C.R., 88 Mass. App. Ct. 532, 537 (2015) (we ask whether plaintiff “was afraid and/or intimidated” for “true threat” analysis).

8.   Although we affirm on prong one of G. L. c. 258E, § 1, we note that the judge would also have been warranted to find that the defendant violated prong two, which provides that “harassment” can also consist of an act that constitutes a violation of G. L. c. 265, § 43A, the criminal harassment statute. Based on the defendant's actions, described above, the judge could have found 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 alarms that person and would cause a reasonable person to suffer substantial emotional distress.” G. L. c. 265, § 43A.

9.   The defendant's second argument, that he was deprived of a fair hearing because the judge at the ex parte hearing admitted “unsubstantiated hearsay testimony,” is unavailing. In a proceeding pursuant to G. L. c. 258E, “[t]he common law rules of evidence, e.g., those regarding hearsay, ․ should be applied with flexibility, subject to considerations of fundamental fairness.” Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:03 (2011). See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015); Mass. G. Evid. § 1106 (2018). In addition, there is no indication that the judge solely relied on the contested testimony, which suggested that other students had complained about similar conduct from the defendant.

By the Court (Rubin, Sullivan & Neyman, JJ.1), FN1. The panelists are listed in order of seniority.