Commonwealth v. John Ecker.

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-704

COMMONWEALTH

vs.

JOHN ECKER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, John Ecker, appeals from an order of a

Superior Court judge revoking his probation. The defendant

argues that at his probation revocation hearing, the judge

admitted e-mail messages that were not properly authenticated,

and the evidence was insufficient to support a finding that he

violated his probation. We affirm.

Background. In July 2014, a jury convicted the defendant

of two counts of criminal harassment, of two different female

victims, in violation of G. L. c. 265, § 43A (a), as then in

effect1; stalking, in violation of G. L. c. 265, § 43 (a), as

1The statute was amended in 2024. All references to § 43A
are to the version effective May 3, 2010.
then in effect2; seven counts of violating a harassment

prevention order, in violation of G. L. c. 258E, § 9;

intimidating a witness, in violation of G. L. c. 268, § 13B, as

then in effect3; and attempt to commit a crime (violation of a

harassment prevention order), in violation of G. L. c. 274, § 6.

In addition to terms of incarceration on other convictions, the

defendant was sentenced on the stalking conviction to fifteen

years' probation, beginning on September 2, 2014, on conditions

including that he not commit any new offenses. On appeal, this

court affirmed the convictions.4 Commonwealth v. Ecker, 92 Mass.

App. Ct. 216, 223 (2017).

On September 22, 2023, a complaint issued in the District

Court alleging that the defendant had engaged in criminal

harassment and witness intimidation of a third woman, Sophia.5

After notice to the defendant, on October 27, 2023, a probation

revocation hearing was held in the Superior Court, at which the

defendant's probation officer and Sophia testified as follows.

2 The statute was amended in 2014.

3 The statute was amended in 2018.

4 On appeal, the defendant did not challenge his convictions
of intimidation of a witness and seven counts of violating a
harassment prevention order. See Ecker, 92 Mass. App. Ct. at
217 n.1.

5 A pseudonym.

2
In July 2022, the defendant applied in person for

Supplemental Nutrition Assistance Program (SNAP) benefits from

the Department of Transitional Assistance. Sophia, who was a

SNAP case worker, assisted him. The next day, the defendant

telephoned Sophia's workplace and left her a voicemail message

that "concerned" her.

About one year later, the defendant sent two handwritten

letters to Sophia at her workplace. Sophia applied for a

harassment prevention order, which was not issued. Shortly

thereafter, on September 1, 2023, Sophia testified by

videoconference at a probation revocation hearing at which it

was alleged that the defendant's conduct described in the

application for the harassment prevention order constituted a

probation violation. The judge did not find the defendant in

violation of probation.

Between September 12 and September 18, 2023, Sophia

received six e-mail messages from "eckerjohn7@outlook.com,"

which was the e-mail address the defendant used to communicate

with his probation officer. Most of these e-mail messages

contained the typewritten signature "John Ecker." The content

of the e-mail messages included purportedly romantic overtures

toward Sophia, such as, "Will you marry me?" The e-mail

messages made Sophia feel "[a]ppalled, concerned, scared, [and]

confused." Attached to one of the e-mail messages was a

3
document captioned as the will of testator "John Leonard Ecker,

Jr.," which named Sophia as the testator's wife. Another e-mail

message read, "I am sending you links to join my YouTube Family

Premium, Microsoft 365 Family subscription, and links to some

videos I created at my studio on YouTube," and contained a link

to a YouTube video recording depicting the defendant. A few

minutes after receiving that e-mail message, Sophia received two

e-mail messages from those digital platforms, one originating

from a subscriber named "John" and the other from "John Ecker,"

inviting her to join his family subscriptions. Yet another

e-mail message stated, "[D]o we need to send a search and rescue

team into [Sophia's home address]?" Sophia had never given the

defendant her home address.

Sophia never replied to any of the e-mail messages; she

turned them over to the police. A District Court judge issued a

harassment prevention order and ordered the defendant to stay

away from and not contact Sophia.

At the probation revocation hearing in the Superior Court,

the defendant objected, on grounds including authentication, to

the admission of copies of the e-mail messages. Overruling

those objections, the judge found that the e-mail messages sent

to Sophia and an e-mail message sent to the defendant's

probation officer were "substantially reliable" as well as

"consistent internally, and . . . consistent with each other."

4
The judge concluded that the defendant had violated his

probation by engaging in criminal harassment of Sophia, in

violation of G. L. c. 265, § 43A; the judge did not find a

violation based on witness intimidation. The defendant moved to

reconsider the finding of probation violation, arguing that the

contents of the e-mail messages were speech protected by the

First Amendment to the United States Constitution. The judge

denied that motion. The judge revoked the defendant's probation

and imposed a sentence. The defendant appeals.6

Discussion. "At a probation violation hearing, the

Commonwealth bears the burden of proving a violation of a

condition of probation by a preponderance of the evidence"

(citation omitted). Commonwealth v. Jarrett, 491 Mass. 437, 445

(2023). The judge's decision to revoke probation and underlying

evidentiary decisions are reviewed for an abuse of discretion.

See Commonwealth v. Rainey, 491 Mass. 632, 648 (2023); Jarrett,

supra.

1. Authentication. The defendant argues that the judge

abused his discretion in admitting the e-mail messages in

evidence because they were not properly authenticated. We are

not persuaded.

6 The judge also denied in part the defendant's motion for
credit for time served. The defendant does not make a separate
argument as to that denial on appeal.

5
"Where evidence is not authentic, it is irrelevant, and

thus, it cannot be a reliable basis for revoking probation."

Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 30 (2020). "In

the case of a digital communication that is relevant only if

authored by the defendant, a judge is required to determine

whether there is sufficient evidence to persuade a reasonable

trier of fact that it is more likely than not that the defendant

was the author." Commonwealth v. Meola, 95 Mass. App. Ct. 303,

308 (2019). Formal procedures for authenticating evidence are

not required in the probation revocation context because these

proceedings "must be flexible in nature" and "all reliable

evidence should be considered." Sargent, supra, quoting

Commonwealth v. Durling, 407 Mass. 108, 114 (1990).

Here, there was ample basis for the judge to conclude that

the e-mail messages were authored or sent by the defendant.

First, the e-mail messages bore the defendant's name as the

sender. Although "[e]vidence that the defendant's name is

written as the author of an e-mail . . . is not sufficient alone

to authenticate the electronic communication as having been

authored or sent by the defendant," such evidence may be a

confirming circumstance. Commonwealth v. Purdy, 459 Mass. 442,

450 (2011). Second, the e-mail address from which the e-mail

messages to Sophia originated was the same one that the

defendant used to communicate with his probation officer.

6
Third, the e-mail messages were authenticated by evidence that

one of them contained a link to a YouTube video recording

depicting the defendant. See Purdy, 459 Mass. at 451 (e-mail

message authenticated by evidence including attached photograph

of defendant); Meola, 95 Mass. App. Ct. at 314 (Facebook message

authenticated by evidence including attached videotape depicting

defendant). Finally, the e-mail messages were sent to Sophia

about two weeks after she testified against the defendant at the

September 2023 probation revocation hearing, and thus the timing

of the e-mail messages was also a confirming circumstance. See

Commonwealth v. Welch, 487 Mass. 425, 441-443 (2021) (text

messages authenticated where contents contained private details

of defendant's and victim's lives, including defendant recently

being fired and arrested). Cf. Commonwealth v. Middleton, 100

Mass. App. Ct. 756, 763-764 (2022) (timing of e-mail messages

sent shortly after G. L. c. 209A order made permanent supported

inference that defendant intended to intimidate or harass

witnesses).

Because the judge had ample basis to conclude that the

e-mail messages were authenticated as originating from the

defendant, the statements within them were "presumptively

reliable" as nonhearsay statements of an opposing party, and

therefore admissible at the probation revocation hearing.

7
Durling, 407 Mass. at 118. See Mass. G. Evid. § 801(d)(2)(A)

(2025).

2. Sufficiency of the evidence. The defendant argues that

the evidence was insufficient to support the finding that he

criminally harassed Sophia. He contends that the Commonwealth

did not prove the defendant committed at least three separate

acts that "seriously alarm[ed]" Sophia and "would cause a

reasonable person to suffer substantial emotional distress."

G. L. c. 265, § 43A. See Commonwealth v. Johnson, 470 Mass.

300, 307 (2014). The argument is unavailing.

The judge heard evidence that in September 2023 the

defendant sent six e-mail messages to Sophia and instigated the

two contacts to her from digital platforms; those were in

addition to his July 2022 voicemail message and two letters in

the summer of 2023. That evidence sufficed to prove "a knowing

pattern of conduct or series of acts" for criminal harassment.

G. L. c. 265, § 43A. The judge credited Sophia's testimony that

the e-mail messages made her feel "threatened," "afraid that

[the defendant] might hurt [her]," "very scared[,] anxious," and

"very concerned for [her] safety," and that the defendant's

persistent, unwanted romantic overtures made her feel

"[a]ppalled, concerned, scared, [and] confused." See

Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 285-286, 294

(2006) (defendant's multiple telephone calls and letters

8
containing "obsessive tone and fabricated familiarity with the

victim" reasonably caused alarm and severe emotional distress to

victim, who had no relationship with defendant beyond having

attended same high school). Cf. A.S.R. v. A.K.A., 92 Mass. App.

Ct. 270, 271, 276-277, 280 (2017) (tone and persistence of

numerous e-mail messages, text messages, and voice messages to

former romantic partner "reasonably can be described as criminal

harassment").

The judge's finding that the defendant violated his

probation was supported. See Jarrett, 491 Mass. at 445. Cf.

Middleton, 100 Mass. App. Ct. at 763-764 (testimony supported

witness intimidation conviction where witnesses were "seriously

alarmed or annoyed" by five e-mail messages).

3. First Amendment. In the Superior Court, the defendant

in his motion to reconsider argued unsuccessfully that his

statements in the e-mail messages were speech protected by the

First Amendment because they did not contain "threats." In his

brief on appeal, the defendant does not raise that argument,

even though he filed his brief after the United States Supreme

Court considered a similar issue in Counterman v. Colorado, 600

U.S. 66, 75 (2023).7 In his reply brief, the defendant attempts

7 The defendant's motion to reconsider did not cite
Counterman, 600 U.S. at 75, which had been decided more than
four months before.

9
to raise his First Amendment argument, relying on Counterman,

id. at 69, 75, and Commonwealth v. Cruz, 495 Mass. 110, 113-114

(2024) (issued after defendant filed his primary brief). This

argument is waived. See Mass. R. A. P. 16 (c), as appearing in

481 Mass. 1628 (2019) ("No new issues shall be raised in the

reply brief"); Commonwealth v. Hampton, 64 Mass. App. Ct. 27, 33

n.8 (2005) ("arguments raised for the first time in a reply

brief are waived"). If we did consider it, we would conclude

that based on the evidence that Sophia had previously sought a

harassment prevention order and testified at the prior probation

revocation hearing, the judge could find by a preponderance of

the evidence that when the defendant sent the e-mail messages to

Sophia, he "was aware that [she] could regard his statement[s]

10
as threatening violence and delivered [them] anyway." Cruz,

supra at 114.

Orders finding probation
violation, revoking
probation, and imposing
sentence affirmed.

Order denying motion for
reconsideration of finding
of probation violation
affirmed.

By the Court (Hand, Grant &
Wood, JJ.8),

Clerk

Entered: June 26, 2025.

8 The panelists are listed in order of seniority.

11