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T.W. v. R.H. (2021)

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Appeals Court of Massachusetts.

T.W. v. R.H.

19-P-1793

Decided: April 29, 2021

By the Court (Massing, Sacks & Grant, JJ.1)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, R.H., appeals from the issuance of a G. L. c. 258E harassment prevention order against him requiring him to not abuse, have no contact with, and stay away from the plaintiff, T.W. The defendant argues that the order should not have issued because the evidence presented was insufficient to permit the District Court judge to find that the defendant committed three acts of harassment as required by G. L. c. 258E. We agree and vacate the order.

The plaintiff and defendant worked together at a performing arts center, where the defendant was the executive director of the theater and the plaintiff reported to him. In her affidavit in support of her complaint for protection from harassment and her testimony, the plaintiff alleged five incidents, as follows:2

(1) In December 2017, soon after the defendant hired the plaintiff, he said to her, “Working with me will be the biggest regret of your life.” At the time she thought it was a joke, but she later came to believe it was “a warning or a threat.”

(2) On May 28, 2019, the defendant made “unwanted physical contact” with the plaintiff and her daughter when he “barg[ed] past [them], on the edge of the stage and stairs, in a fit of anger.” The incident was reported to police, who sought an assault and battery complaint against the defendant.

(3) On August 1, 2019, after the plaintiff had made statements at an employee meeting outside the defendant's presence about his “violent past,” she drove past him on a public street and he “star[ed] her down.”

(4) On August 4, 2019, the defendant sent an email to third parties “trying to discredit [the plaintiff's] professional reputation” because of a dispute about whether it was his or the plaintiff's obligation to pay another employee.

(5) On August 6, 2019, the plaintiff learned from her coworkers that the day before the defendant had been seen working at a business “two doors down” from her workplace.

“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). “Abuse” is limited to “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm” (citations omitted). A.R. v. L.C., 93 Mass. App. Ct. 758, 761 (2018). “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 ‘fear of physical harm ․’ ” (emphasis added). A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting O'Brien v. Borowski, 461 Mass. 415, 427 (2012).

The “acts” of speech on which an order may be grounded are limited to those that amount to “true threats” or “fighting words.” A.R., 93 Mass. App. Ct. at 760. See also O'Brien, 461 Mass. at 423 (fighting words “are likely to provoke a fight: face-to-face personal insults that are so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace”). “To qualify as a true threat, a threat must demonstrate ‘a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (citation omitted). A.R., supra at 760. “[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.” O'Brien, supra at 425. Statements that are not “true threats” or “fighting words” are constitutionally protected speech. See A.R., supra at 760.

After careful review of the evidence presented at the hearing, including the plaintiff's affidavit and testimony, we conclude that the judge could have found that the defendant's conduct on May 28, 2020, including “yelling and screaming,” and “barg[ing] right past” the plaintiff and her daughter, “basically shoulder checking [her] on his way past” causing her to need to “hold [her] balance not to fall” put the plaintiff “in fear of imminent serious physical harm,” and amounted to abuse. G. L. c. 258E, § 1.

However, the other four incidents alleged by the plaintiff, while upsetting to her, did not amount to abuse within the meaning of G. L. c. 258E, § 1. See A.R., 93 Mass. App. Ct. at 760 (the statutory definition of “harassment” is narrower than the colloquial use of the term). The defendant's comment that working with him would be the plaintiff's “biggest regret” did not amount to true threats or fighting words. See id. at 760. Similarly, the defendant's e-mail to third parties disparaging her because of an employment dispute did not meet the statutory definition. See O'Brien, 461 Mass. at 427 (“fear of economic loss, [or] of unfavorable publicity” insufficient to support harassment for purposes of G. L. c. 258E); Seney, 467 Mass. at 63 (e-mail sent to third party “was not directed at [plaintiff]”). Contrast Petriello v. Indresano, 87 Mass. App. Ct. 438, 446-447 (2015) (false accusation aimed to cause fear, intimidation, or abuse may be considered an act of harassment if the record shows statement was made to plaintiff).

Nor did the defendant's “star[ing]” at the plaintiff's car as she drove past him amount to harassment within the meaning of the statute. See Commonwealth v. McDonald, 462 Mass. 236, 244 (2012) (“We are reluctant to imbue ‘staring’ with any sinister connotation in the absence of an objective basis -- such as a description of something particular in the defendant's facial expression, verbal expression, or body language -- from which such a subjective assessment could have been made”). Contrast Commonwealth v. Robinson, 444 Mass. 102, 103-105 (2005) (defendant “glared” at victim, and blocked road forcing victim to drive over grassy area; and stared “menacingly” at the victim, parked near victim, and then followed victim home). Finally, the defendant's taking a job at a business “two doors down” from the plaintiff's workplace was not harassment. See McDonald, 462 Mass. at 243 (“[t]here [was] no evidence, nor [could] any reasoned inference be drawn from the evidence, that the defendant's attention or interest was particularly focused on the complainant and that he intended that she be aware of his attention, or that he otherwise harbored any wrongful or unlawful motive”). Contrast Commonwealth v. Paton, 63 Mass. App. Ct. 215, 216-219 (2005) (defendant appeared over twenty times at victim's place of employment when victim was working and asked for her by name).3

In short, there was insufficient evidence that the defendant committed three acts of harassment, as defined by the statute. Accordingly, the G. L. c. 258E order is vacated, and the matter is remanded to the District 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 records of the order. See G. L. c. 258E, § 9.

So ordered.

Vacated

FOOTNOTES

2.   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).

3.   To the extent that the plaintiff relies on her testimony that the defendant harassed her by repeatedly cancelling appointments for her to pick up her property from him, an allegation not included in her affidavit, we similarly conclude the plaintiff failed to establish that the conduct was “maliciously intended” to place her in “fear of physical harm.” A.T., 88 Mass. App. Ct. at 535.

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