Opinion
16-P-301
04-10-2017
M.D. v. W.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the issuance of a harassment prevention order, granted pursuant to G. L. c. 258E, and the one-year extension of the same, alleging error by the judge. We affirm.
Background. The plaintiff, at the time of the events in question, was attending college in her junior year. The defendant was forty-three years old. The plaintiff sought, and was granted, an ex parte harassment prevention order against the defendant after a series of encounters between the parties left the plaintiff severely shaken and afraid for her safety.
The first encounter occurred on October 30, 2014, at a gym where the plaintiff and the defendant were both members. The plaintiff often noticed the defendant placing himself near her as she exercised. On that day, the plaintiff noticed that the defendant was following her while she exercised, staring at her, and did "handstands over" her while she exercised on the floor.
The second encounter occurred the next day, on October 31, 2014, after the plaintiff was again at the gym and noticed the defendant staring at her and invading her personal space. After she left the gym and drove to her job in a nearby city, she parked in a lot across the street, with a fence on the driver's side of the car. When she looked up, the defendant was standing directly outside her window, staring in at her. He walked away, and the plaintiff went inside her office to tell another employee what happened. That employee went outside to speak with the defendant, who hid behind a car and eventually fled. The plaintiff called the police, but the defendant was gone when they arrived.
The third encounter occurred on March 21, 2015, at a store located in the same city as the gym. The plaintiff stated that she went into the store and a man entered shortly after her. When she turned around, she saw the defendant staring at her, and when she left the store, he followed her out, continued to stare, and winked at her suggestively.
On March 26, 2015, the plaintiff went to the District Court and filed for a harassment prevention order pursuant to G. L. c. 258E (order), which was granted, ex parte, until April 8, 2015. See G. L. c. 258E, § 5. Following a hearing on April 8, a second judge granted the plaintiff's request to extend the order for one year. At that hearing, the plaintiff testified that she was in great fear of the defendant. She testified that as a result of her fear, she quit her job, switched gyms, her father hired a friend to follow her around, she drove a rental car, she had nightmares, and she was afraid to be alone anywhere. The defendant now appeals both the ex parte order and the extension order.
Discussion. We first note that the extension order at issue expired on April 7, 2016, and the plaintiff did not move to extend the order. See O'Brien v. Borowski, 461 Mass. 415, 417 (2012). However, it is appropriate for us to reach the merits of this case. See Seney v. Morhy, 467 Mass. 58, 62 (2014) (noting that harassment prevention orders often expire during pendency of appeal, but should still be reviewed "where the parties have a continuing interest in the case").
Civil harassment, insofar as is relevant here, is defined as "3 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, inserted by St. 2010, c. 23. See O'Brien, supra at 419; Seney, supra at 60. "In the context of a civil order, the test is a subjective one; if all of the other elements are present, it is sufficient to show that the harassment actually caused fear, intimidation, or abuse to the plaintiff, even if a reasonable person in the plaintiff's situation would not have been so affected. ... In addition, while the plaintiff must show that the defendant committed three specific acts, ... it is 'the entire course of harassment, rather than each individual act, that must cause fear or intimidation."' Petriello v. Indresano, 87 Mass. App. Ct. 438, 444-445 (2015), quoting from O'Brien, supra at 426 n.8.
In reviewing a civil harassment prevention order, we examine the record to determine whether "the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed" the three requisite acts. Petriello, supra at 444. If there was evidence to support such an order, we will not reverse it unless there was clear error. See Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 309 (1981).
Here, the defendant argues there was not sufficient evidence to support a finding that he committed the three acts. At the April 8, hearing, the defendant admitted to being in the vicinity of the plaintiff on those three occasions, but denied that his presence was the result of any desire to harass the plaintiff. His theory was that those encounters were all coincidences, that he happened to run into the plaintiff while he was doing other things, and that the plaintiff's fears were an unreasonable overreaction. Thus, the argument boils down to a determination of the credibility of the two parties' testimony. Whether to believe a witness and how much weight and importance to give to the testimony of a witness are determinations for the judge to make because he is in the best position assess credibility. Thus, we give substantial deference to the judge's factual determinations. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509-510 (1997) ; Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636-637 (2010). While here the judge did not make specific findings, he stated that he had "really take[n] to heart the young woman's statements and the fear that she feels." "In the absence of subsidiary findings on the issue of credibility, we assume that the judge's determination was adverse to the losing party." Commonwealth v. Quigley, 391 Mass. 461, 463 (1984). Therefore, we assume that the judge credited the entirety of the plaintiff's testimony, and did not credit the defendant's testimony.
On the record before us, there was a basis for the judge to find by a preponderance of the evidence that the defendant committed three acts (the first incident took place at the gym, the second the next day began at the gym and continued in a parking lot, and the third took place at the store) that were directed at the plaintiff. When those acts are viewed together and not considered in isolation, see V.J. v. N.J., 91 Mass. App. Ct. 22, 25, 27 (2017), the judge was warranted in finding by a preponderance of the evidence that they were done with the intent to intimidate the plaintiff, were done wilfully and maliciously, and did in fact intimidate her and cause her to be in fear of imminent physical harm. See Seney, 467 Mass. at 63. The defendant's conduct, which involved purposely placing himself in close physical proximity to the plaintiff in circumstances that went beyond what might be termed simply annoying behavior and which would permit an inference that he was following her, was no less intimidating to her because he did not utter any words.
Accordingly, we conclude that there was no error by the judges in finding a basis for the issuance of the order and its subsequent extension.
March 26, 2015, order affirmed.
April 8, 2015, extension order affirmed.