Opinion
21-P-562
07-19-2022
R.M. v. E.B.
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 23.0
The defendant, E.B., appeals from a November 23, 2020 order extending a G. L. c. 258E harassment prevention order issued against him in District Court on November 2, 2020. The judge found that R.M. "suffer[ed] from criminal harassment" and extended the order for one year on that basis. E.B. argues that we should vacate the order because the evidence was insufficient to support a violation of the criminal harassment statute, G. L. c. 265, § 43A. We affirm.
R.M. did not file a brief.
Background.
We summarize the judge's factual findings and the evidence adduced at the hearing, reserving additional facts for later discussion. R.M. is a priest, and, when he served in Virginia, E.B. was a member of his church. E.B. "has harassed [R.M.] and [his] family in churches [R.M. has] served in for over five years." From January 2018 to January 2020, E.B. was subject to an order protecting R.M. that was issued by a Virginia court. In the winter and spring of 2018, after the Virginia protective order had been put in place, E.B protested outside of R.M.'s church dozens of times and left cards and pamphlets in the surrounding neighborhood protesting R.M.'s "abuse." E.B. also verbally attacked members of R.M.'s family and congregation. E.B. filed a civil stalking complaint against R.M. and sued him for abuse of process, defamation, and intentional infliction of emotional distress.
The judge held an ex parte hearing on November 2, 2020, and a harassment prevention order issued the same day. The judge extended the harassment order after hearings on November 12 (ex parte) and November 23, 2020. We refer to the November 23 hearing, at which both parties appeared.
R.M. testified that E.B. created a website where he posted photos of R.M. "with comments underneath," and that this had been ongoing for four years. R.M. testified that, while E.B. had "several blog sites," he maintained one blog on "Fairfax Underground" that "ha[d] the most offensive" pictures and comments, including a photograph depicting the gravesites of R.M.'s relatives, including his mother. In other posts, E.B. threatened to set dogs loose in R.M.'s congregation -- these posts included a picture of a snarling wolf or dog -- and referred to a group of people called the "killer bees." These posts referred to R.M. by name and named other members of his former church. E.B. also posted photos of R.M.'s daughter, referred to her as a "cunt," and made other derogatory comments about her and R.M.'s wife. E.B. testified that he has blogged about R.M. and his family but did not admit to making all the foregoing posts.
In October of 2019, R.M. relocated to Massachusetts. E.B. read and blogged about the move. E.B. "began harassing the congregation in [R.M.'s new town] on the internet." E.B. testified that he contacted a bishop in Massachusetts to express his "objection to a priest serving in the diocese who is a perjurer" and admitted that, in the winter of 2019-2020, he created a "fake" website impersonating R.M.'s church in Massachusetts. Over four to five months, E.B. made ten to twenty posts on that website, including criticism of the congregation for hiring R.M. as the interim rector and allegations that R.M. is a perjurer.
On October 28, 2020, after a complaint by the leadership in R.M.'s church, the web host took down the "fake" website for violating "Blogger Content Policy." Four days later, on November 1, 2020, E.B. drove from Virginia to R.M.'s church in Massachusetts and, for two hours during morning services, stood across the street displaying a sign with R.M.'s name and the statement "Perjuring Priest." R.M. knew that E.B. had driven over 450 miles to confront him because he saw E.B.'s car, with Virginia plates, seventy-five yards away from the church; police officers confirmed that the car was E.B.'s. R.M found it "very disturbing" that E.B. made the effort to come all the way to Massachusetts, and applied for this harassment prevention order the following day.
Discussion.
E.B. contends that there was insufficient evidence of criminal harassment. We are unpersuaded. "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). As relevant, G. L. c. 258E defines "[h]arassment" as conduct that "constitutes a violation of [G. L. c. 265, § 43A]," the criminal harassment statute. G. L. c. 258E, § 1 (ii) (B). The criminal harassment statute punishes "[w]hoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress." G. L. c. 265, § 43A (a.) . "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), citing Commonwealth v. Luna, 418 Mass. 749, 753 (1994). A "malicious act" is an "intentional, wrongful act done willfully or intentionally against another without legal justification or excuse." Id., quoting Black's Law Dictionary 1043 (9th ed. 2009).
"A conviction under § 43A requires proof that (1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, willfully and maliciously" (quotation and citation omitted). Commonwealth v. Bigelow, 475 Mass. 554, 561 (2016).
"The definition of 'harassment' in c. 258E was crafted by the Legislature to 'exclude constitutionally protected speech,' . . . and to limit the categories of constitutionally unprotected speech that may qualify as 'harassment' to two: 'fighting words' and 'true threats.'" Van Liew v. Stansfield, 474 Mass. 31, 37 (2016), quoting O'Brien v. Borowski, 461 Mass. 415, 425 (2012). "True threats" are "'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.'" Seney v. Morhy, 467 Mass. 58, 63 (2014), quoting O'Brien, supra. Whether a communication constitutes a threat or a true threat is usually a matter to be decided by the trier of fact. Commonwealth v. Bigelow, 475 Mass. 554, 567 (2016).
"Both civil and criminal harassment require proof of three or more acts of wilful and malicious conduct aimed at a specific person." O'Brien, 461 Mass. at 420. "The plaintiff bears the burden of proof" and "[w]e review the judge's factual findings for clear error." Ilan I. v. Melody M., 96 Mass.App.Ct. 639, 645 n.9 (2019), and cases cited.
Here, the judge found that R.M. proved by a preponderance of the evidence that E.B. engaged in conduct constituting criminal harassment under § 43A:
"[E.B.] engaged in a known pattern of conduct or speech or in a series of acts on more than three occasions that [E.B.] intended to target [R.M.] with this misconduct, speech, and series of acts on each occasion, that the conduct, speech, and series of acts, were such a nature that they seriously alarmed [R.M.], that the conduct and speech and series of acts were of such a nature that they would cause a reasonable person to suffer substantial emotional distress, and [E.B.] committed the conduct and speech and series of acts willfully and maliciously."
On appeal, E.B. maintains that (a) the conduct and speech that R.M. complained of at the hearing is constitutionally protected speech, and because protected speech cannot form the basis for a harassment prevention order, we must vacate the c. 258E extension order; and (b) even if the acts were not protected, "none of them can be interpreted to have the malicious intent required or be anything a reasonable person could be put in (the adequate type) of fear necessary." While constitutionally protected speech cannot constitute a qualifying act of harassment for purposes of c. 258E, see O'Brien, 461 Mass. at 425, the record reveals at least three other acts that support the judge's findings. See A.S,R., 92 Mass.App.Ct. at 277.
First, the judge could reasonably infer that, viewed against the backdrop of E.B.'s conduct in Virginia, E.B.'s act of driving to Massachusetts from Virginia to stand outside R.M.'s church during morning services was willful and malicious, directed at R.M., seriously alarmed R.M., and would cause a reasonable person to suffer substantial emotional distress. E.B.'s several-hundred-mile drive from Virginia to Massachusetts and his positioning outside of R.M.'s church reflects intentional, rather than accidental, conduct, allowing a judge to reasonably conclude that this action was willful. E.B.'s malicious intent can be inferred from the totality of the circumstances, which includes the reasonable inference that E.B. appeared in Massachusetts in retaliation for the web-hosting service's action, three days earlier, of taking down his website impersonating R.M.'s church. See V.J, v. N.J., 91 Mass.App.Ct. 22, 28 (2017) (malicious intent can be inferred from context of defendant's entire course of conduct). See also G. L. c. 258E, § 1 ("malicious" means "characterized by cruelty, hostility or revenge"). Assuming without deciding that the act of protesting outside the church with the "Perjuring Priest" sign is a constitutionally protected act, the judge could nonetheless credibly have found that, after five years of harassing and threatening behavior, E.B.'s act of following R.M. from Virginia to Massachusetts, which was unquestionably directed at R.M., targeted R.M.
E.B.'s appearance seriously alarmed R.M., who said that he found it "very disturbing" and was "worried about the physical threat that [E.B.'s] irrational behavior on the internet and now coming up here from Virginia represents." When viewed in the context of years of E.B.'s blogging about R.M. and his family, E.B.'s filing of civil lawsuits against R.M., and the web-hosting service's recent decision to take down E.B.'s website, this unexpected in-person appearance is of such a nature that a reasonable person in R.M.'s position would suffer substantial emotional distress. See Commonwealth v. Paton, 63 Mass.App.Ct. 215, 221 (2005) (criminal harassment conviction affirmed where defendant's "menacing and unexpected appearances" caused victim substantial emotional distress, which was reasonable under circumstances).
Second, the judge could reasonably have concluded that E.B.'s blog posts threatening to set dogs loose in the congregation, which included both pictures of snarling wolves or dogs and R.M.'s name, were true threats. "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual," i.e., "words that are intended to place the target of the threat in fear [of physical harm or physical damage to property], whether the threat is veiled or explicit" (quotations and citations omitted). O'Brien, 461 Mass. at 423-424 & 427. Viewing the content of the posts against the backdrop of continuous online and in-person harassment, it was not clear error for the judge to infer that E.B. intended the posts to place R.M. in fear of physical harm. Therefore, the judge could conclude that these posts were a true threat. See A.S,R., 92 Mass.App.Ct. at 279-280 (defendant's relentless harassment, carried on over a period of months and frequently containing explicit references to violence, satisfied definition of true threat).
After concluding that the posts were a true threat, the judge could have also found that they were an act of criminal harassment. E.B.'s decision to contact R.M.'s superior to express his disagreement with R.M.'s position in the church and E.B.'s creation of a website impersonating the church reflect an obsession with preventing R.M. from serving in the church. In that context, these blog posts can be interpreted as E.B.'s intentionally and wrongfully intimidating R.M. for his continued service to the church. E.B. named R.M. in the posts, directing them at him, and R.M. was seriously alarmed. It can also be inferred that E.B.'s actions would cause a reasonable person to suffer substantial emotional distress. E.B.'s obsessive behavior was objectively intimidating, irrational, and meant to instill fear. Where E.B. openly and negatively blogged about R.M. and his family, expressed his disagreement with R.M.'s position as a priest, and then threatened to set dogs or wolves loose, a reasonable person in R.M.'s position would suffer substantial emotional distress upon seeing the posts. See A.S,R., 92 Mass.App.Ct. at 279 (defendant's actions given volume and nature of her messages, combined with unexpected appearances, "would cause a reasonable person to suffer substantial emotional distress").
Third, the judge could credibly have found that E.B.'s posting of a photo of R.M.'s family graves, including R.M.'s mother's grave, was a veiled threat meant to instill fear of physical harm or death in R.M., and thus a true threat. See A.S,R., 92 Mass.App.Ct. at 280 (true threat does not require explicit statement of intention to harm victim, so long as circumstances support victim's fearful or apprehensive response).
At oral argument, E.B. conceded that, if there is sufficient evidence that E.B. posted images of R.M.'s relatives' gravestones - which the judge implicitly found there was - that this post could be seen as a true threat.
While E.B. denied posting the photograph of the gravesite on Fairfax Underground, he admitted to posting on the site about R.M. and his family. This admission, coupled with R.M.'s testimony that E.B. posted the gravesite image and has been blogging about R.M. on the site for years, allowed the judge credibly to determine that E.B. did indeed post the photo. See F.A.P. v. J.E.S., 87 Mass.App.Ct. 595, 601 (2015) (judge in best position to make credibility determinations).
Therefore, the judge could reasonably conclude that the act of procuring and posting a photo of R.M.'s relatives' gravesites was intentional, wrongfully intended to instill fear of physical harm or death in R.M., and directed at R.M. R.M.'s testimony provides sufficient evidence for the judge to conclude that E.B.'s "irrational behavior on the internet" seriously alarmed R.M.; seeing photos of a family member's gravesite in this manner would cause a reasonable person to suffer substantial emotional distress. See Commonwealth v. O'Neil, 67 Mass.App.Ct. 284, 294 (2006).
November 23, 2020 extension order affirmed.
The panelists are listed in order of seniority.