J.B. v. D.B.

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

24-P-151

J.B.1

vs.

D.B.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, D.B., appeals from the extension of a

harassment prevention order issued pursuant to G. L. c. 258E,

§ 3. Concluding that the evidence supported the judge's

conclusion that the defendant committed an act of criminal

harassment and that such evidence is sufficient to permit the

extension of a harassment prevention order, we affirm.

1. Standard of review. "Our review of the order at issue

is 'or an abuse of discretion or other error of law.'"

Wilhelmina W. v. Uri. U., 102 Mass. App. Ct. 634, 637 (2023),

The plaintiff, as is her right, did not file a brief in
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this appeal. Although the order has since expired, this does
not make the appeal moot. See A.S.R. v. A.K.A., 92 Mass. App.
Ct. 270, 270 n.1 (2017).
quoting 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." Vera V. v. Seymour S., 98 Mass. App. Ct. 315,

318 (2020), quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 393

(2018).

2. Basis for extension. There are two permissible bases

for granting a harassment prevention order. See G. L. c. 258E,

§ 1. "Most harassment prevention orders are granted based on

'[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.'"

Yasmin Y., 101 Mass. App. Ct. at 256, quoting Orla O. v.

Patience P., 100 Mass. App. Ct. 126, 127 (2021). "There is,

however, another basis for a harassment prevention order: proof

that the defendant '"by force, threat, or duress cause[d the

plaintiff] to involuntarily engage in sexual relations" [or

proof that the] defendant committed any of twelve specifically

enumerated sex crimes.'" Yasmin Y., 101 Mass. App. Ct. at 256,

quoting F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599 (2015).

One of these crimes is criminal harassment under G. L. c. 265,

§ 43A. See G. L. c. 258E, § 1.

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Here, in ruling on the extension, the judge repeated the

language of the criminal harassment statute, demonstrating his

intention to extend the order based on the defendant's

commission of an act of criminal harassment. Contrary to the

defendant's argument, a judge may extend a harassment prevention

order on this basis. See A.S.R. v. A.K.A., 92 Mass. App. Ct.

270, 276-277 (2017).2

3. Evidence supporting criminal harassment. To establish

the crime of criminal harassment, a party must prove that the

defendant "willfully and maliciously engage[d] in a knowing

pattern of conduct or series of acts over a period of time

directed at a specific person, which seriously alarm[ed] that

person and would cause a reasonable person to suffer substantial

emotional distress." G. L. c. 265, § 43A (a). See O'Brien v.

Borowski, 461 Mass. 415, 420 (2012). Specifically, criminal

harassment requires proof of "three or more predicate acts of

harassment that were 'directed at a specific person.'"

Commonwealth v. Brennan, 481 Mass. 146, 151 (2018), quoting

Commonwealth v. Johnson, 470 Mass. 300, 312 (2014). These

2 We need not address the defendant's argument -- raised for
the first time at oral argument -- that a harassment prevention
order extended on this basis requires a criminal charge or
conviction. See Prism Group, Inc. v. Slingshot Techs. Corp.,
104 Mass. App. Ct. 785, 797 n.8 (2024) (argument raised for
first time in oral argument waived). We note, however, that
there was no such charge or conviction in A.S.R., 92 Mass. App.
Ct. 271-274.

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predicate acts must be done "willfully and maliciously" by the

defendant. G. L. c. 265, § 43A (a). As applicable here,

"[w]ilful conduct is that which is 'intentional rather than

accidental'; it requires no evil intent, ill will, or

malevolence." Brennan, 481 Mass. at 154, quoting Commonwealth

v. McDonald, 462 Mass. 236, 242 (2012). Malicious conduct, for

purposes of criminal harassment, "is an 'intentional, wrongful

act done willfully or intentionally against another without

legal justification or excuse.'" Brennan, supra, quoting

McDonald, supra.

In contrast to civil harassment, we have "specifically

rejected the argument that a defendant must have 'act[ed] out of

"cruelty, hostility, or revenge"' to be guilty of criminal

harassment." Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221

(2017), quoting Commonwealth v. Paton, 63 Mass. App. Ct. 215,

219 (2005).3 Further, malice can be inferred through conduct

alone. See Paton, supra at 219-220 ("[T]he defendant's behavior

alone was sufficient in this case for a rational trier of fact

3 There is a specific definition of "malicious" for purposes
of the first definition of civil harassment, that of three or
more acts committed with the intent to cause fear, intimidation,
abuse, or damage to property. G. L. c. 258E, § 1. For those
purposes, "malicious" is defined as "characterized by cruelty,
hostility or revenge." G. L. c. 258E, § 1. That definition,
however, applies only to the word "malicious" "[a]s used in this
chapter [258E]." G. L. c. 258E, § 1. It does not change the
definition of "maliciously" in G. L. c. 265, § 43A (a).

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to conclude that the defendant acted maliciously. The

defendant's staring at the victim in the bar without speaking

and then unexpectedly appearing in proximity to her in other

places . . . caused the victim anxiety and apprehension").

To satisfy the statutory definition of criminal harassment,

the harassing acts "must 'seriously alarm[]' the targeted

victim." O'Brien, 461 Mass. at 420, quoting G. L. c. 265,

§ 43A. The plaintiff, however, does not have to be aware of, or

be alarmed by, the defendant's conduct at the time it occurs.

See Commonwealth v. Walters, 472 Mass. 680, 687, 699 (2015),

S.C., 479 Mass. 277 (2018). Instead, "the 'cumulative effect of

the defendant's pattern of conduct [must] "seriously alarm[]"

[the plaintiff].'" Brennan, 481 Mass. at 152, quoting Walters,

supra at 699. It is not necessary "that each individual

incident was alarming." Brennan, supra, quoting Walters, supra.

Finally, "the pattern of harassment [must be such that] 'would

cause a reasonable person to suffer substantial emotional

distress'." O'Brien, supra, quoting G. L. c. 265, § 43A.

Here, the defendant took over one thousand photos of the

plaintiff over forty days while they were at work together, each

of which could be an act. In addition, on the evening the

defendant was fired, he appeared approximately four hundred feet

from the plaintiff's home. The defendant then sent the

plaintiff a text message. The judge did not need to specify

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three harassing acts where there "was evidence supporting a

conclusion that there were many more than three harassing acts."

A.S.R., 92 Mass. App. Ct. at 277.

That the plaintiff was not aware of the photographs at the

time they were taken would be a problem had the extension been

based on three acts "with the intent to cause fear,

intimidation, abuse or damage to property, G. L. c. 258E, § 1,

but criminal harassment has no such requirement. See O'Brien,

461 Mass. at 420. "Adding an awareness element to § 43A would

frustrate the purpose of the law." Brennan, 481 Mass. at 152.

This case is controlled by Commonwealth v. Brennan, 481

Mass. 146. There, the court found that the defendant's

placement of global positioning tracking devices on the motor

vehicles of the two victims constituted acts of criminal

harassment even though neither was aware of their placement or

of the defendant's checking the victims' locations with his

phone at the time. Id. at 154. Later, the victims became

seriously alarmed when the devices were discovered. Id.

Similarly, here, the plaintiff testified that, after she was

made aware that the defendant had taken photographs of her,

"this has been incredibly traumatic for me to think that I had

somebody that I trusted that was a colleague of mine, that we

could, I don't know, have boundaries, and I feel incredibly

violated that to find out the information that I did through the

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investigation." In combination with evidence that the defendant

showed up in proximity to the plaintiff's home and sent the

victim a text message, this evidence provided an adequate basis

for the judge to find that the defendant committed the crime of

criminal harassment against the plaintiff.

Order dated August 25, 2023,
affirmed.

By the Court (Neyman,
Ditkoff & Wood, JJ.4),

Clerk

Entered: March 4, 2025.

4 The panelists are listed in order of seniority.

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