T.D. v. E.S.

NOTICE: 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-545

T.D.

vs.

E.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a harassment prevention order

issued against him, and extended for one year, under G. L.

c. 258E. He contends that the order was issued and extended in

error, because the plaintiff did not present sufficient evidence

of three acts of "harassment," as the statute requires. We

agree and accordingly vacate the orders.

Background. The plaintiff and the defendant were involved

in a dating relationship intermittently between 2015 and 2019.

In May of 2021, after their relationship had ended, the

plaintiff sought an abuse prevention order against the defendant

pursuant to G. L. c. 209A. In support of her application, the

plaintiff averred that (1) in February of 2021, the defendant

posted "sexually provocative photos" of her on the Internet, (2)

the defendant had "attempted to contact [the plaintiff] . . .
several times" via various means, including in May and November

of 2020, and (3) the plaintiff saw the defendant outside of her

apartment in March of 2021. At an ex parte hearing on May 11,

2021, a District Court judge declined to issue an abuse

prevention order under G. L. c. 209A, because the plaintiff

testified, in response to questions by the judge, that the

defendant had not caused her physical harm, had not threatened

to do so, and had not caused her to fear imminent serious bodily

injury. The judge did, however, issue a harassment prevention

order under G. L. c. 258E, based on the plaintiff's testimony

that the defendant had been posting nude photographs of her on

the Internet, and that she had seen the defendant outside of her

apartment.

On May 25, 2021, the plaintiff and the defendant appeared

before a different judge for a hearing on whether to extend the

order. At this hearing, the plaintiff testified that the

defendant had posted naked photographs of her on the Internet in

the past (around five or six years prior), and more recently,

the photographs had been reposted on various websites. The

plaintiff testified that she had reported the postings to the

police several times, and that in each instance the police had

tracked the postings back to "China or India."1

1 The plaintiff agreed that she did not have direct proof that it
was the defendant who had posted the photographs, but testified

2
The plaintiff also submitted in evidence some of the

electronic messages referenced in her affidavit. Sequentially,

the first was a text message exchange from August of 2018, in

which the defendant called the plaintiff a "slut." The second

was a social media message from the defendant in November of

2018, in which the defendant expressed regret for (unspecified)

prior actions, but which also contained the phrase "I know you

live close to me," and ended by calling the plaintiff "dick

breath."2 Several times, the plaintiff sent electronic messages

to the defendant stating, "Please stop contacting me." After

that, in May of 2020, the defendant sent her a third social

media message asking "[a]re you busy?" The plaintiff also

described a fourth text message, which she did not produce, from

November of 2020, in which the defendant had again expressed

that he knew where she lived.3 Finally, the plaintiff testified

that the defendant was the only one to whom she had sent them.
The defendant denied having posted the photographs.
2 The message read:

"Okay, well I think I’m blocked, but I know you live close
to me. I’m sorry that I took out the hate for myself on
you so many times. I regret it, but I’m happy to have you
as a part of my life. You taught me to care when you
didn’t want to, . . . showed me loyalty should be shown
even when others don’t show it. And, most of all care by
you even when you didn’t care about yourself. Good luck,
dick breath."

3 The message was not introduced in evidence or inspected by the
judge, see Mass. G. Evid. § 1119(c) (2022), because the
plaintiff "could not find" it.

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that, one evening at about 10 P.M. in March of 2021, she saw the

defendant outside of her apartment staring at her as she walked

into the building.4 She stated that she thought the defendant's

actions were intentional and malicious, and intended to

intimidate and threaten her.

The judge extended the order for one year, finding that the

defendant had "harassed [the plaintiff] as per the statute."

The judge stated his reasons on the record. He expressly did

not base his determination "on the anonymous posting of the

photographs," finding the evidence insufficient to conclude that

the defendant was the poster. Instead, he cited the defendant's

"name calling, the persistent contact, and the contact as recent

as November of" 2020. He further "did not credit" the

defendant's testimony that he had not been outside the

plaintiff's apartment.

Discussion. On appeal, the defendant argues that the

evidence was insufficient to establish "harassment," as defined

in G. L. c. 258E, and thus that the harassment prevention order

was issued and extended in error. "Harassment" in this context

requires a pattern, specifically, "[three] or more acts of

willful and malicious conduct aimed at a specific person

4 The defendant testified that he was not at the plaintiff's
apartment in March of 2021 and that he was not aware the
plaintiff lived at that location until he received notice of the
ex parte order.

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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.

Where, as here, some of the conduct involves speech, that speech

must constitute "true threats" or "fighting words" to qualify as

an act of harassment. Seney v. Morhy, 467 Mass. 58, 63 (2014).

O'Brien v. Borowksi, 461 Mass. 415, 423-425 (2012). We review

to determine "whether the judge could find, by a preponderance

of the evidence, together with all permissible inferences, that

the defendant committed acts that constituted" harassment.

A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 274 (2017). Because

the judge here did not articulate which of the defendant's

actions constituted the three acts, our review is based on the

entirety of the record. See Yasmin Y. v. Queshon Q., 101 Mass.

App. Ct. 252, 256 (2022).

To begin, we note that the judge did not base his decision

on the defendant's alleged postings of the nude photographs,

finding that the evidence was insufficient to attribute those

postings to the defendant. The alleged postings therefore could

not have constituted an act of harassment.5 Cf. R.S. v. A.P.B.,

5 Despite the judge's comment that "the reasonable inference"
could trace the posts back to the defendant, he ultimately "did
not find the evidence sufficient to put that posting on him
directly" and did not "base" his order "on the anonymous posting
of the photographs."

5
95 Mass. App. Ct. 372, 377 (2019) ("evidence of who sent"

messages from a "fake [social media] account . . . was

insufficient to conclude that it was the defendant").

The defendant's waiting outside of the plaintiff's

apartment at night in March of 2021 and staring at her qualified

as an act of harassment. The judge expressly did not credit the

defendant's testimony that he was not present, and the judge

could have found an act of harassment based on the plaintiff's

testimony that she saw the defendant staring at her and that

this, along with the defendant's other actions, had intimidated

her. See A.S.R., 92 Mass. App. Ct. at 279 (enough evidence of

intent where judge "disbelieve[d]" defendant's testimony).

We turn to the electronic messages, all of which were sent

before that March 2021 incident. In order to qualify as acts of

harassment, the electronic messages had to rise to the level of

"true threats" or "fighting words." "True threats" are "words

or actions that" in context "cause the victim to fear [physical]

harm . . . and evince intent on the part of the speaker . . . to

cause such fear"; "fighting words" are those "inherently likely

to provoke violence." O'Brien, 461 Mass. at 423-425.

As to the August 2018 electronic message, as crude as it

was, it did not as a matter of law constitute an act of

harassment, particularly because the plaintiff had told the

judge that the defendant had never threatened her with physical

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harm or put her in fear of serious bodily injury. Without

evidence that the defendant's words placed the plaintiff in fear

of physical harm, that the defendant called the plaintiff

offensive names in August 2018 did not amount to a true threat.

See Van Liew v. Stansfield, 474 Mass. 31, 39 (2016) ("insults

. . . failed to qualify as fighting words or true threats");

A.R. v. L.C., 93 Mass. App. Ct. 758, 761 (2018) ("conduct . . .

considered harassing . . . in the colloquial sense . . . [might]

not [be] adequate to meet the [O'Brien] standard"). And nothing

else about that message, or its context, evinces that the

defendant intended to cause the plaintiff fear of physical harm.

See R.S., 95 Mass. App. Ct. at 376 (persistence alone

insufficient to establish harassment).

We are of the same view regarding the defendant's social

media message from November of 2018, two plus years before the

plaintiff sought the harassment prevention order. True, that

posting does contain a line that the defendant knew the

plaintiff lived close to him, which, in another context, might

be a veiled threat. But the message's entire context renders

such an inference unreasonable. The message noted that, as of

November 2018, the defendant apparently was having difficulty

communicating with the plaintiff, as he had been "blocked," but

the message expressed no threat. Among other things, the

defendant expressed remorse for his past actions and

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"happ[iness]" for the way the plaintiff had treated him.

Considering that context, the November 2018 message could not

qualify as a "true threat" for G. L. c. 258E purposes. See

O'Brien, 461 Mass. at 425 (context considered).

The defendant sent the May 2020 social media message asking

"[a]re you busy?" after the plaintiff had told him not to

contact her. In some circumstances, evidence that a defendant

made contact after having been told not to do so might show that

the defendant intended to cause fear and thus qualify as an act

of harassment. Cf. 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"). See O'Brien, 461 Mass. at 426 n.8

(judge "must look to the cumulative pattern of harassment, and

need not find that each act in fact caused fear, intimidation,

[or] abuse"). Here, however, in the context of the plaintiff's

telling the judge that the defendant had never threatened her

with physical harm or put her in fear of serious bodily injury,

the message "[a]re you busy?" did not amount to an act of

harassment.

As for the plaintiff's testimony that in November 2020 the

defendant sent her a text message saying that he knew where she

lived, we need not reach the question whether it constituted a

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threat or fighting words, as it would comprise only the second

act where three are required.

Accordingly, the now-expired ex parte and extension orders

must be vacated. We remand to the District Court for entry of

an order vacating and setting aside the harassment prevention

orders and for further actions required by G. L. c. 258E, § 9.

See F.K. v. S.C., 481 Mass 325, 335 (2019); Seney, 467 Mass. at

60-61.

So ordered.

By the Court (Englander,
Grant & Brennan, JJ.6),

Clerk

Entered: March 22, 2023.

6 The panelists are listed in order of seniority.

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