B.W. v. S.J. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, S.J., appeals from the issuance of a G. L. c. 258E harassment prevention order against him in the Juvenile Court, requiring him to have no contact with, and to remain fifty yards away from, the plaintiff, B.W. The defendant argues that the order should not have been extended at the hearing after notice because the plaintiff failed to prove three acts of harassment. We agree.

The plaintiff, who was ten years old, and the defendant, who was twelve, were classmates in a combined fifth and sixth grade classroom. As alleged in the plaintiff's affidavit attached to his complaint for protection from harassment, the three acts were as follows:

(1) Outside at recess, the defendant asked the plaintiff if he was allergic to nuts, and when the plaintiff said he was, the defendant blew nut dust in the plaintiff's face.

(2) The plaintiff went inside to use the bathroom, and when he exited, the defendant again asked the plaintiff if he was allergic and blew nut dust in the plaintiff's face.

(3) When the plaintiff then went into the classroom and sat down at his desk, the defendant threw nuts at him.

It was undisputed that on the day in question the defendant had taken a bag of almonds to school in his lunch, that the plaintiff was exposed to them, and that the plaintiff suffered a severe anaphylactic shock requiring hospitalization.

“We review an order pursuant to G. L. c. 258E to determine whether the judge 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,’ ” Seney v. Morhy, 467 Mass. 58, 60 (2014), and that those acts did ‘in fact cause fear, intimidation, abuse or damage to property,’ G. L. c. 258E, § 1.” Ellis E. v. Finn F., 96 Mass. App. Ct. 433, 440 (2019).

In reviewing a judge's decision to issue or deny a protective order, “we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.” C.O. v. M.M., 442 Mass. 648, 655 (2004), quoting Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).² We will not disturb a judge's subsidiary factual findings unless they are clearly erroneous. See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 126 (2017); Demayo v. Quinn, 87 Mass. App. Ct. 115, 117 (2015), citing Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 637 (2010). “We will uphold her findings unless we have a ‘definite and firm conviction that a mistake has been committed.’ ” Millennium Equity Holdings, LLC, supra, quoting Kendall v. Selvaggio, 413 Mass. 619, 620–621 (1992).

At the hearing after notice, the defendant's mother, the defendant, the school principal (who was also one of the boys' teachers), and the plaintiff testified. Eleven exhibits were admitted in evidence. The plaintiff's affidavit attached to the complaint was not. Instead, the plaintiff's “[i]ncident [r]eport in his own words” was admitted as an exhibit. The statement referred to only two incidents -- the first, which occurred as the students lined up outside the school building to enter after recess, and the second, which occurred when the students lined up inside the school to go to the restroom. In this telling, the plaintiff had a severe allergic reaction after the second exposure, and the classroom teacher took him by the hand and ran with him to the nurse's station.

We assume without deciding that the plaintiff proved the first two acts.³ With respect to the third alleged act -- the throwing of nuts in the classroom ⁴ -- the defendant has carried his burden of persuading us that a mistake was made. In his testimony at the hearing after notice, the plaintiff described only the first two acts. The plaintiff's “incident report” did not mention returning to the classroom or the incident of the defendant throwing nuts at him there. The defendant testified that he did not return to the classroom either; rather, he was called to “the office” after he went to the bathroom. The defendant's written statement, which was admitted as an exhibit, also states that he did not return to the classroom because a teacher called him into the office. The sole reference to the third alleged act appears in a report prepared by the principal. The principal's report included statements of the classroom teacher, who reported that the day after the incident, a student told her that he had “watched [the defendant] throw the [a]lmonds at [the plaintiff] in class.” Although the rules of evidence are relaxed at G. L. c. 258E hearings, see A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017), the judge sustained the defendant's objection to this unsworn, third-level hearsay statement when the plaintiff's mother attempted to use it to cross-examine the defendant.

In short, there was no credible evidence that the third alleged act of harassment occurred. Accordingly, the c. 258E order is vacated, and the matter is remanded to the Juvenile Court with instructions that the court shall notify the appropriate law enforcement agency in writing that the order has been vacated and shall direct the agency to destroy all record of the order. See G. L. c. 258E, § 9.

So ordered.

FOOTNOTES

2.   The case law regarding abuse prevention orders under G. L. c. 209A generally applies to G. L. c. 258E harassment prevention orders. See A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (2017).

3.   We do not consider whether the three alleged acts were, in fact, only one continuous act. See F.K. v. S.C., 481 Mass. 325, 332 (2019). The defendant did not make this argument in the trial court, and he relegates it to a footnote in his brief.

4.   The judge was not required to, and did not, delineate the three distinct acts of harassment on which the order was based. See V.J. v. N.J., 91 Mass. App. Ct. 22, 25-26 (2017).