D.S. v. T.M. (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, T.M., appeals from a harassment prevention order issued against her pursuant to G. L. c. 258E. She contends that a District Court judge erred in issuing the order, because the plaintiff did not present sufficient evidence of three acts of “harassment,” as required by G. L. c. 258E. We affirm.

Background. In the summer of 2021, the defendant was in need of housing and posted to social media looking for a lead. The plaintiff's friend, Eric,¹ saw the post and, knowing that the plaintiff had a temporarily vacant room, put the defendant and the plaintiff in contact. The plaintiff, his roommates, and the defendant agreed that the defendant could live in the room rent free while it went unoccupied, and the defendant moved in soon thereafter.

Shortly after she moved in, and with no apparent provocation, the defendant began accusing the plaintiff of sexual harassment and racism. The plaintiff considered these accusations to be completely unfounded. The situation escalated quickly thereafter. The defendant began “yelling” at her roommates and otherwise engaging in “[e]rratic behavior.” She also sent over fifty text messages in less than one day to a group discussion that included the plaintiff, in which the defendant accused the plaintiff of “commit[ting] genocide,” and threatened to have “a quick answer for a dumbass” if anyone spoke negatively of the defendant. The defendant also sent at least 200 text messages to the plaintiff's friend, Eric, about the plaintiff, claiming, among other things, that the plaintiff was a white supremacist, a racist, and genocidal. Eric relayed these text messages to the plaintiff, who testified that the messages caused him concern for his safety. The plaintiff and his other housemates “vacate[d] the premises for their own safety.”

After vacating, the plaintiff asked the defendant to move out of the apartment within forty-eight hours. The plaintiff eventually returned to the apartment with the police, to ensure that the defendant had moved out as requested. She had not. Rather, when the plaintiff arrived, the defendant began filming the interaction with the plaintiff, shouting the plaintiff's name and address, calling him a white supremacist, and threatening to post the video online. The plaintiff then filed for a harassment protection order, averring that he was afraid to return to his home while the defendant remained.

A two-party hearing was held on August 4, 2021, at which the defendant represented herself. The plaintiff testified that the defendant had since published the video on social media. In the video and associated written posts the defendant stated the plaintiff's name and address, indicated that the plaintiff was a racist and sexual harasser, and stated explicitly that the plaintiff was “afraid to show [his] face[ ].” The plaintiff also testified that, upon returning to his apartment, he discovered that the handle had been ripped off his bathroom sink and shoved into the toilet, causing the bathroom to flood; the defendant was the only one with access to the apartment when the damage occurred.² The plaintiff also testified that the defendant's actions made him feel intimidated, afraid, and threatened.

The judge granted the harassment prevention order, and in addition ordered the defendant to remove from social media any posts that were “intimidating, threatening or meant to incite violence toward the plaintiff.” The defendant timely appealed.

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” in this context is defined as “[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.”³ G. L. c. 258E, § 1. “Conduct may constitute civil harassment where an individual wilfully and maliciously uses 'fighting words' ․ or uses 'true threats.'” Seney v. Morhy, 467 Mass. 58, 63 (2014). Where the judge did not make specific findings as to what constituted the three requisite acts of harassment, we review the entirety of the record in our assessment. See Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022) (“[W]here we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required” [citation omitted]).

The defendant argues that the evidence was insufficient to establish the three requisite acts. She argues (1) that her accusations of racism, her online posts, and her text messages were protected speech -- that is, were not true threats or fighting words, and/or (2) were not “aimed at” the plaintiff. We disagree.

At the outset, the defendant entirely ignores the plaintiff's evidence that she committed an act of “damage to property” -- that is, there is sufficient evidence to conclude that the defendant ripped the handle off the plaintiff's bathroom sink and shoved it in the toilet. There were pictures of the damage, and the plaintiff testified that the defendant was the only one in the apartment when the damage occurred.⁴ That act was willful and malicious, and aimed at the plaintiff, where it occurred in his apartment bathroom. Cf. F.W.T. v. F.T., 93 Mass. App. Ct. 376, 378-379 (2018) (assuming that alleged harassing conduct was “intended to target” property owner). The judge could have found that this constituted one act of harassment. The question thus becomes whether the defendant's text messages and social media posts supply the additional two acts needed under G. L. c. 258E.

The defendant argues that her text messages cannot constitute an act of harassment because (1) they were not directed to the plaintiff, but to Eric, and (2) they did not contain true threats or fighting words. The defendant's first argument fails, because she sent at least fifty text messages, over a short period of time, directly to the plaintiff.⁵ See DeMayo v. Quinn, 87 Mass. App. Ct. 115, 117 (2015) (“aimed at” equates to “directed at”).

Nor are we convinced that those text messages did not qualify as “true threats.” As noted, “[c]onduct may constitute civil harassment where an individual wilfully and maliciously ․ uses 'true threats.'” Seney, 467 Mass. at 63. True threats are “words or actions that -- taking into account the context in which they arise -- cause the victim to fear [physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear” (emphasis added). O'Brien v. Borowski, 461 Mass. 415, 425 (2012). This includes “words that are intended to place the target of the threat in fear [of physical harm], whether the threat is veiled or explicit” (citation omitted). Id. at 423-424.

The judge permissibly could have concluded that this standard was met here. First, the judge could have found the defendant's conduct to be willful and malicious, given the content of the messages, their repetitive nature, and their escalation upon the plaintiff asking the defendant to move out. See A.S.R., 92 Mass. App. Ct. at 277 (“hundreds of communications” evidenced willful and malicious nature of conduct). Moreover, the judge permissibly could have concluded that the messages were intended to place the plaintiff in fear of physical harm. The messages were obsessive and aggressive -- the plaintiff characterized them as “unhinged.” They employed language that could reasonably cause one to be concerned that physical violence might follow. See id. at 280 (“[a] true threat does not require an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response” [citation omitted]). At least one contained a veiled threat of violence -- to “have a quick answer for a dumbass.” Cf. id. (communications “contain[ing] explicit references to violence” constituted true threats). Indeed, the defendant's actions in fact caused the plaintiff to fear for his safety, such that he vacated the apartment and only returned when accompanied by the police. See O'Brien, 461 Mass. at 426 n.8 & 427-428 (whether actions in fact caused fear informed by “entire course of harassment”). The judge therefore could have concluded that these text messages formed the second act of harassment.⁶

Finally, the evidence was sufficient to conclude that the defendant's Internet postings -- specifically, posting the video of the plaintiff and his home on social media ⁷ -- constituted a true threat willfully and maliciously made.⁸ Posting the video was plainly willful, and the judge permissibly could have inferred that the defendant's actions were malicious -- that is, characterized by revenge. Although the defendant argues that the posts were not “direct threats of imminent physical harm,” as noted, the true threats doctrine is not limited to “direct threats,” but also includes “words or actions that,” in the context in which they were made, “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, 461 Mass. at 425. The defendant filmed the plaintiff and his home, announced the plaintiff's name and address, called the plaintiff racist and a sexual harasser, and then published the video (and accompanying audio) to an online audience. She did so after incessantly contacting the plaintiff -- lodging a veiled threat of violence in the process -- and damaging the plaintiff's property. This purposeful and repeated conduct marks the defendant's intent to cause the plaintiff fear, and indeed, the defendant expressly acknowledged in her social media posts that the plaintiff was “afraid.” Under these circumstances, the judge could have concluded that the defendant's Internet postings constituted the third act of harassment.

Harassment prevention order affirmed.

FOOTNOTES

1.   A pseudonym.

2.   The plaintiff submitted pictures of the damage.

3.   “Malicious” is defined as “characterized by cruelty, hostility or revenge.” G. L. c. 258E, § 1. “Wilful conduct is that which is 'intentional rather than accidental'; it requires no evil intent, ill will, or malevolence.” Commonwealth v. McDonald, 462 Mass. 236, 242 (2012), quoting Commonwealth v. Luna, 418 Mass. 749, 753 (1994).

4.   Although the defendant disputed that she caused the damage, the judge was not required to credit that testimony. See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) (“[C]redibility of a party or other witness who appeared at trial is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings”).

5.   In any event, we are not persuaded that the over 200 text messages to Eric were not “aimed at” the plaintiff -- the judge could have found that the defendant knew that Eric would tell the plaintiff about the text messages (and intended that he do so) because they directly mentioned and concerned the plaintiff. Cf. Ilan I. v. Melody M., 96 Mass. App. Ct. 639, 647 (2019) (reasonable to infer conduct was aimed at both plaintiffs despite one's physical absence).

6.   Even if the text messages to Eric were not “aimed at” the plaintiff, they are nonetheless relevant in assessing whether the texts to the plaintiff constituted true threats; the true threat assessment is made “taking into account the context in which they arise.” O'Brien, 461 Mass. at 425. Here, that context includes hundreds of additional text messages to Eric concerning the plaintiff that the plaintiff testified caused him to fear for his safety.

7.   Although the video was not before the judge below, the plaintiff and the defendant described its contents consistently.

8.   The plaintiff describes the defendant's actions as “doxing,” which he explained to the judge as “revealing the personal information online of a person as intended to make people online dislike them,” and which “can result in threats.”