R.B. v. M.T. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a hearing after notice, a District Court judge issued a two-year harassment prevention order pursuant to G. L. c. 258E. The defendant appeals, arguing that the evidence was insufficient to support the issuance of the order under any of the definitions of harassment enumerated in the statute, the order penalizes constitutionally protected speech, and the judge impermissibly extended the order for more than one year. Although we are unpersuaded by defendant's first two arguments, we agree that the judge erred in issuing a two-year order. We therefore vacate the order to the extent that it extends beyond October 29, 2019.

Background. Taking the facts in the light most favorable to the plaintiff, the record supports the following: Soon after the parties became neighbors in 2010, the defendant hired the plaintiff to work as a physician recruiter at a company owned by his wife. Once the plaintiff had started working for the defendant, the defendant forced her to begin a sexual relationship. The plaintiff was under pressure, at least in the beginning of the relationship, to comply in order to maintain her employment. From 2010 to 2014, sexual encounters between the two parties continued, the plaintiff stayed at the company, the parties remained neighbors, and their two families frequently socialized together.

In July 2014, the plaintiff left the company to work for a rival and ended her relationship with the defendant. The plaintiff testified that over the next few months the defendant repeatedly called the plaintiff in an attempt to convince her to return to work and visited her home and her former husband's place of business uninvited. The plaintiff introduced two of the defendant's voice messages.² In the first message, the defendant called the plaintiff a “fuckin gold-digger girlfriend.” In the second message, the defendant referred to a tax fraud case involving the plaintiff's former husband, stating, “I can be a friendly witness or a hostile witness.” The plaintiff testified that the defendant told her that he “was going to lie to the IRS and make sure that I ended up with nothing if I ever left him,” and “threatened if I ever left him that he would make sure that he would take everything from me.”

The plaintiff submitted in evidence a letter she received in the mail shortly after she received the second voice message. The letter, which purported to be from the parents of other children at her daughter's school, condemned the plaintiff's parenting, branded her daughter the “town slut” and “a chronic liar,” and concluded that “child services should be brought in.” The plaintiff also submitted in evidence six anonymous letters that were sent to her clients between 2015 and 2018. The letters -- styled as official notices, article excerpts, and informal dispatches -- alerted the clients to the plaintiff's involvement in the civil Federal tax fraud case, referring to the plaintiff as a “thief” and “a con artist.” The letters inaccurately stated that the plaintiff was criminally convicted of defrauding the Federal government. The plaintiff testified that the defendant sent hundreds of these letters to clients in multiple States. The plaintiff also testified to the existence of an e-mail, signed by the defendant and sent to the attorney of the plaintiff's new employer, which stated that the defendant “would nationally publicize this and tell every single company about Enterprise's sleazy business practices, and he would not give up.” In March 2017, the plaintiff reported the voice messages and letters to the police.

The plaintiff testified that she believed the defendant had sent the anonymous letters and that his actions had placed her in fear of her physical safety. Apart from court hearings, the plaintiff has not had direct contact with the defendant since September 2014.³

At the close of evidence, the defendant moved for a directed verdict, which was denied. The defendant was present but did not testify or present any witnesses. The judge determined that the plaintiff had met her burden under G. L. c. 258E and issued a two-year harassment prevention order against the defendant.

Discussion. “In reviewing a civil harassment order under 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 acts that constituted one of the enumerated forms of harassment.” A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274 (2017). “'Harassment' is defined in G. L. c. 258E, § 1, in several ways, and a plaintiff who proves any one of the various forms of harassment qualifies for an order.” Id. The first definition is “[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.” G. L. c. 258E, § 1 (i). The second definition includes criminal misconduct defined as either “an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” G. L. c. 258E, § 1 (ii). Included among the listed statutes is G. L. c. 265, § 43A, which prohibits criminal harassment. As the judge could have found by a preponderance of the evidence that the defendant's acts constituted criminal harassment under G. L. c. 258E, § 1 (ii) (B), we decline to review whether a harassment order could have issued under a different theory.⁴

The criminal harassment statute punishes “[w]hoever willfully and maliciously engages 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 (a). Acts of harassment include “conduct or acts conducted by mail or by use of a telephonic ․ device.” Id. Under this definition, the defendant's voice messages and letters can reasonably be described as criminal harassment.

The record supports the inference that the defendant was responsible for all the letters. The defendant had left a coercive voice message shortly before the plaintiff received a disturbing letter regarding her daughter, he had access to the plaintiff's client list, and the letters to the plaintiff's clients began soon after the plaintiff ended her sexual relationship and employment with the company. Similarly, it was a permissible inference that the purpose of the letters was to seek revenge on the plaintiff. The plaintiff testified that the defendant had explicitly threatened to get back at her if she left him and the company. The defendant had both the motive and means to send letters to the plaintiff's client list inaccurately claiming she had been criminally convicted of fraud. The judge below was warranted in finding that the defendant was responsible for a willful, malicious, and knowing pattern of conduct directed at the plaintiff, satisfying the intent requirement of the criminal harassment statute under the civil standard of proof by a preponderance of the evidence.

The defendant argues that even if he conceded authorship, the plaintiff has failed to prove, in the language of the statute, that the letters were “directed” at her. As we noted in the context of a criminal prosecution for criminal harassment, “[a] threat may be communicated by a third party to the defendant's intended victim. In such instances ․ the Commonwealth must prove, among other things, that the defendant intended to communicate the threat to the third party who acts as intermediary. Intent, of course, may be proved by circumstantial evidence.” Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 526-527 (2002). The judge in this case could reasonably infer the defendant intended that third parties in close contact with the plaintiff would communicate the content of the letters to the plaintiff (as they in fact did).

The judge was likewise warranted in finding that this pattern of conduct seriously alarmed the plaintiff and would have caused a reasonable person to suffer substantial emotional distress. The plaintiff's distress came through clearly in her testimony: “I'm saying I was forced to have sex in order to work and have a job. And if I wanted to keep my house and my family together in my house, I would do exactly what he told me to do or I was going to have yellow crime scene tape wrapped around my house, and I would be homeless.” She stated her fear explicitly: “I am frightened. I want this harassment to stop.” When asked if her fear concerned economic loss, the plaintiff was again adamant: “No, my fear is of safety from a person that suffers from mental illness.” The judge was entitled to credit this testimony.

We reject the argument that the anonymous letters constitute protected speech under the First Amendment to the United States Constitution and under art. 16 of the Massachusetts Declaration of Rights. These letters were not directed at an elected official or public figure or express political speech. Contrast Commonwealth v. Bigelow, 475 Mass. 554, 562-563 (2016). Notwithstanding the plaintiff's characterization of the letters in her brief, we are satisfied that the evidence was sufficient for the judge to find that the letters, in the context of the defendant's previous behavior, constituted a true threat, placing the plaintiff in fear of physical harm. As the Supreme Judicial Court has explained, “[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 an intent on the part of the speaker or actor to cause such fear.” Bigelow, supra at 567, quoting O'Brien v. Borowski, 461 Mass. 415, 424-425 (2012).

Finally, the defendant challenges the length of the order. Upon conclusion of the evidentiary hearing, the judge below issued a two-year order. General Laws c. 258E, § 3 (d), provides that at the hearing after notice, “[a]ny relief granted by the court shall not extend for a period exceeding 1 year.” Thereafter, however, “[i]f the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.” G. L. c. 258E, § 3 (d). The statute is clear that an order cannot be extended for more than one year at the time of the first hearing after notice.⁵

Conclusion. For the reasons set forth above, we vacate the order to the extent that it extends beyond October 29, 2019, but otherwise affirm it. The plaintiff is free to apply for an extension prior to that date.

So ordered.

Vacated in part; affirmed in part.

FOOTNOTES

2.   While the defendant stated at oral argument that the voice messages had not been entered in evidence, the transcript of the evidentiary hearing suggests otherwise. In any event, both messages are set out in a police report the defendant entered in evidence before moving for a directed verdict, so we need not resolve whether the voice messages themselves were properly admitted. As neither party contests the accuracy of the transcripts included in the police report, we will rely on them here.

3.   Through cross-examination, the defendant pointed to several facts that he claimed called into question the credibility of the plaintiff. For example, the defendant disputed the nonconsensual nature of the relationship between the defendant and the plaintiff by noting that between 2010 and 2014, the two families frequently socialized together at the plaintiff's behest. The defendant also asserted that the judge in the Federal tax case had found the plaintiff to be not credible, and that the plaintiff's claim that the judge had also found him to be not credible was simply not true. Questions of credibility are, of course, for the trial court judge to resolve. Going forward, we leave consideration of the defendant's claims regarding the plaintiff's credibility to the trial court judge, should the plaintiff seek to extend the order.

4.   The defendant argues that the plaintiff did not pursue this theory at the evidentiary hearing. Since we may affirm on any ground supported by the record, we do so here. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (“if the facts found by the judge support an alternative legal theory, a reviewing court is free to rely on an alternative legal theory”).

5.   The plaintiff argues that the defendant waived this argument by failing to object after the judge's ruling. We disagree. The judge ruled over the defendant's opposition under “the statutory scheme that there has been in place for 209As,” which the defendant correctly believed to be “applicable in the ․ context [of 258Es].” Further, where the statute explicitly prohibits the issuance of a two-year order, we need not defer to the discretion of the trial judge.