J.D. v. A.M.

J.D. v. A.M.

No. 20-P-1218

Appeals Court of Massachusetts

October 27, 2021

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0

The defendant, A.M., appeals from a G. L. c. 258E harassment prevention order issued against her in District Court on September 4, 2020. She argues that the order should be vacated because the plaintiff, J.D., did not prove three incidents of harassment within the meaning of the statute. We disagree and affirm the order.

Background.

The judge found that there were "at least three separate incidents" of harassment, as evidenced by the plaintiff's testimony to "multiple incidents over the last two years," an August 19, 2020 incident, and a previous harassment prevention order. The judge heard the sworn testimony of the plaintiff that the defendant "continuously drives by my house, beeps," and "giv[es] the finger." The plaintiff testified that she had been "going through this for five years," and had a prior harassment prevention order against the defendant that had expired in August 2018.

The judge had before him a memorandum and order of a panel of this court vacating that prior harassment prevention order. J.D. v. A.M., 95 Mass.App.Ct. 1103 (2019). That panel concluded that the plaintiff had not shown three acts of harassment, but had proven at least one such act when on August 16, 2017, the defendant drove behind the plaintiff's car and then tailgated the plaintiff, beeping her horn, gesturing with her middle finger, and mouthing, "Fuck you." After the plaintiff changed lanes, the defendant too changed lanes and followed closely behind the plaintiff, shaking her up so much that she suffered an anxiety attack. The panel held that that incident qualifies as an act of harassment.^[1]

In addition to the plaintiff's testimony, police reports documented several of the more recent incidents of harassment. On August 17, 2020, the defendant drove up behind a vehicle driven by the plaintiff's eighteen year old son, honked her horn, and then drove past him while raising her middle finger at him. The plaintiff testified that the defendant "tried to drive [her] . . . son off the road."

On the afternoon of August 19, 2020, the plaintiff was in front of her apartment building with her seven year old daughter when the defendant drove her vehicle toward them, accelerating and making the plaintiff and the daughter terrified that she would run them down.^[2]

On August 21, 2020, while the plaintiff's son was outside with his friends, the defendant was nearby in her vehicle harassing them. When reporting the incident to police, the plaintiff was extremely emotional and in fear for her safety. A police officer telephoned the defendant, and she admitted that she had parked near the plaintiff's home and played loud music, intending it to be disturbing and choosing specific songs to send a message to the plaintiff. The defendant repeatedly told the officer that there was "nothing [police] can do." About thirty minutes later, the defendant called the officer back and informed him that she has been doing this "for quite some time," and that she knows her behavior offends people and knows that the plaintiff gets the message. The defendant said that there was nothing that she could do to the plaintiff that would be worse than what the plaintiff had done to her already. When the officer suggested that it would be better for everyone if the defendant would just stay away from the plaintiff, the defendant abruptly terminated the call.

Discussion.

As we previously explained,

"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" (citation 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 . . . .'" A.T. v. C.R., 88 Mass.App.Ct. 532, 535 (2015), quoting O'Brien v. Borowski, 461 Mass. 415, 427 (2012) . "But, in determining whether these three acts did 'in fact cause fear, intimidation, abuse or damage to property,' the [judge] must look to the cumulative pattern of harassment, and need not find that each act in fact caused fear, intimidation, abuse, or damage to property." 0'Brien, supra at 426 n.8, quoting G. L. c. 258E, § 1.

In looking to that cumulative pattern of harassment, the judge could consider that the defendant's statements to police on August 21, 2020, proved that her intent during prior incidents was to cause the plaintiff to be afraid and intimidated. The defendant said that she had been bothering the plaintiff "for quite some time," that she believed there was nothing police could do about it, and that nothing she could do to the plaintiff would be worse than what the plaintiff had done to her. Those statements, made even after the prior harassment prevention order and appeal to this court, shed light on the defendant's intent. See Ilan I. v. Melody M., 96 Mass.App.Ct. 639, 646 (2019) (defendant "displayed a pattern of escalating conduct that no amount of entreaties, a no trespass notice, or threat of litigation had quelled"). We conclude that the judge properly ruled that the plaintiff had met her burden to show that the defendant had committed at least three acts of harassment directed at her.^[3] First, as a panel of this court has already held, the incident on August 16, 2017, constituted an act of harassment. J.D., 95 Mass.App.Ct. 1103. Contrary to the defendant's argument, the fact that the panel vacated the prior harassment prevention order did not negate the ruling that one of the incidents underlying it constituted an act of harassment.

Second, the August 19, 2020 incident, when the defendant drove her vehicle in a threatening manner toward the plaintiff and her young daughter, constituted an act of harassment. The judge could infer that the defendant did so "with the intent to cause fear [or] intimidation," G. L. c. 258E, § 1, and could find from the plaintiff's statement that she was "terrified" that the harassment indeed caused fear. See Ilan I., 96 Mass.App.Ct. at 645 (driving car across plaintiffs' lawn and blocking driveway showed "level of physical intrusion and . . . display of physical force" to constitute harassment).

Finally the...