Commonwealth v. Celeste Hedequist.

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

23-P-463

COMMONWEALTH

vs.

CELESTE HEDEQUIST.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from her conviction by a District

Court jury of violating a harassment prevention order (order or

HPO), in violation of G. L. c. 258E, § 9, stemming from an e-

mail that she copied to D.L., the plaintiff who obtained the

order. At trial, the Commonwealth proceeded on the theory that

the defendant violated two separate conditions of the order.

First, the Commonwealth argued that the defendant, by copying

her e-mail to D.L., violated the order's no-contact provision.

Second, the Commonwealth argued that the contents of the

defendant's e-mail constituted an act of harassment or abuse

prohibited by the order.
On appeal, the defendant claims her conviction must be

vacated because the evidence was insufficient to prove that the

defendant contacted, harassed, or abused the plaintiff in

violation of the order, particularly because the contents of the

defendant's e-mail constituted speech protected by the First

Amendment. The defendant also contends that the conviction must

be vacated as there was insufficient evidence for either of

these alternative theories of proof and the jury were not

required to designate which theory they unanimously agreed on in

reaching their verdict.

In addition, the defendant claims the judge erred in

denying her motion to dismiss the complaint because (1) it was

unsupported by probable cause, and (2) the clerk-magistrate

deprived her of her right to be heard.

Although we conclude the evidence was sufficient to

establish the defendant violated the no-contact condition of the

order by intentionally copying her e-mail to D.L., we conclude

the evidence was legally insufficient to establish the contents

of her e-mail amounted to a "true threat," or other

constitutionally unprotected speech, as required to constitute

an act of harassment. See O'Brien v. Borowski, 461 Mass. 415,

425 (2012) (abrogated on other grounds by Seney v. Morhy, 467

Mass. 58, 61-62 [2014]).

2
Therefore, we reverse the defendant's conviction, because

"it is impossible to tell" whether the jury based their verdict

on the ground for which the evidence was sufficient to convict,

or on the theory for which the evidence was insufficient.

Commonwealth v. Vizcarrondo, 427 Mass. 392, 398 (1998).

Finally, we conclude the judge did not err in denying the

defendant's motion to dismiss the complaint.1

Background. We summarize the evidence presented at the

trial in the light most favorable to the Commonwealth, reserving

some details for later discussion.

In 2016, the defendant and her husband had four children

between the ages of six and twelve years old in a Massachusetts

school district. By December 2016, the defendant maintained an

adversarial relationship with members of the school committee

and school educators and administrative staff, including D.L.,

for at least three reasons. First, the defendant was

dissatisfied with the school district's response to her formal

complaint that one of her children was being bullied at school.

Second, the defendant responded to a school principal's

discipline of one of her children by confronting the principal

1 On appeal, the defendant also claims her conviction must
be reversed on grounds that the judge abused his discretion
concerning two evidentiary issues, and because the
Commonwealth's closing argument was inflammatory. We do not
resolve these issues because we reverse the conviction on other
grounds.

3
in a manner the school found alarming.2 Third, the defendant and

her husband opposed a no-trespass order the school had obtained,

first against the defendant, and eventually against her entire

family.

The defendant and her husband met with D.L. on December 22,

2016, to discuss these ongoing issues. At the end of the

meeting, the defendant, ostensibly upset with D.L., stated she

wanted time with D.L.'s children to torture them.3

Based on this statement, as well as what D.L. described as

"a continuing pattern of harassing e-mails threatening my

family, disparaging me . . . ," he sought a harassment

prevention order against the defendant on February 10, 2017. An

order pursuant to G. L. c. 258E issued, and the order was served

on the defendant on the same day. The order prohibited the

defendant from contacting, abusing, or harassing D.L.

About nine months later, in November 2017, the defendant

and her husband appealed to M.K., a member of the school

committee, to rescind the school's no-trespass order. On

2 D.L. testified that the defendant, accompanied by two of
her children, pounded on the principal's school window after
school hours, and chanted to her, "You evil bitch." This
encounter was admitted as a prior bad act of the defendant. The
judge allowed its admission to explain the school
administration's rationale for obtaining a no-trespass order
against the defendant and her family.

3 This statement was also admitted as a prior bad act.

4
November 18, 2017, M.K. sent an e-mail to the defendant advising

her that the no-trespass order would remain in effect. Notably,

M.K. copied D.L. and another school committee member by adding

their respective e-mail addresses in the "Cc" field in his e-

mail to the defendant.

The defendant replied, via e-mail, to M.K. that same day by

stating:

"Dear [M.K.],

"I am sorry to report that [D.L.]'s order is not
legal, violates due process, is abusive, among other
things.

"I also noticed that you copied [D.L.] on your e-mail
to me. Please do not attempt again to have me respond
accidentally to a group e-mail with him copied on it
and in violation of any HPO.

"This again underscores your manipulation and your
pattern of deceptive and abusive behavior as you know
that there is to be no contact between him and myself.

"Take care,

"Celeste Hedequist." (Emphasis added.)4

Although the defendant added additional e-mail addresses to

the "Cc" field in her reply e-mail to M.K., she did not include

D.L.'s address in the Cc field.

At a meeting in December 2017, the defendant's husband

again appealed to M.K. to rescind the school's no-trespass

4 Both M.K. and D.L. testified they were familiar with the
defendant's e-mail address based on prior e-mail communications
with her.

5
order. On December 15, 2017, the defendant reacted to this

meeting by sending another e-mail to M.K. through the same

November 18, 2017 e-mail chain described above. The defendant

copied D.L. and a school committee member in this e-mail to M.K.

The defendant's December 15, 2017 e-mail, which served as the

basis for the criminal complaint, stated:

"[M.K.],

"Don't ever smirk at my husband again. We are going
to do to your children what you have done to ours.
You are so creepy, and Dan said you smell like feces.
You are so gross. Go take care of your poor, poor
special child. I hear your face gets red like a
tomato when you['re] mad. Is that from all the
alcohol you drink[?] When your children start to feel
what ours have felt, then you will be a better person.
We will help you, [M.K.], you fucking wack job
bastard."

D.L. forwarded this e-mail to police on December 19, 2017.

Discussion. 1. Sufficiency of the evidence. The

defendant claims that the contents of the December 15, 2017 e-

mail were protected as free speech and as such, could not

constitute either an act of abuse or harassment, or contact in

violation of the order.

The Commonwealth counters that the evidence was sufficient

to show the defendant violated the order, first, by making

intentional contact by copying D.L. on her e-mail to M.K.; and

second, because her speech constituted a true threat to D.L.,

and thus fell outside the protections of the First Amendment.

6
In reviewing a claim that the verdict was not supported by

sufficient evidence, the "question is whether after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt." Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).

To convict a defendant of violating a harassment prevention

order, the Commonwealth must prove that (1) a court had issued

such an order; (2) the order was in effect on the date that the

violation allegedly occurred; (3) the defendant knew the terms

of the order; and (4) the defendant violated the order.

Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721 (2019). The

issues on appeal pertain only to the element of whether the

defendant violated the order.

As discussed in more detail below, the jury instructions

for the single count of violation of the order provided

alternative theories of guilt by presenting the jury with the

choice whether the defendant committed the crime by either (1)

abusing or harassing D.L., or (2) contacting D.L. Because we do

not know which theory the jury relied on in reaching their

general verdict, we must examine the sufficiency of the evidence

underlying each alternate theory of proof. See, e.g.,

Commonwealth v. Kozubal, 488 Mass. 575, 594 (2021) (jury

7
instruction allowing for alternative grounds of proof, without

requiring jury to indicate on which they relied, did not amount

to reversible error because evidence for each ground was

sufficient to support verdict).

a. The no-contact provision. The order against the

defendant included the following no-contact provision:

"You are ordered not to contact the Plaintiff either in
person, by telephone, in writing or otherwise, either
directly or through someone else, and to stay at least [one
hundred] yards from the Plaintiff even if the Plaintiff
seems to allow or request contact. The only exception to
this Order is that you may send to the Plaintiff by mail or
by sheriff or other authorized officer copies of papers
filed with the court when that is requires by statue or
court rule."

Such an order "mandates that the defendant not communicate by

any means with the protected party." Commonwealth v. Finase,

435 Mass. 310, 314 (2001). The question whether the defendant

violated the order by contacting D.L. is a distinct and separate

inquiry from whether the contents of the message constituted

protected speech. See Commonwealth v. Thompson, 45 Mass. App.

Ct. 523, 525 (1998) ("The harm created by contact from an abuser

. . . is distinct from and unrelated to any message the abuser

might be seeking to send").

We reject the defendant's claim that the act of copying

D.L. on an e-mail constituted conduct that possessed sufficient

communicative character to be protected by the First Amendment.

See Texas v. Johnson, 491 U.S. 397, 404 (1989). It is the fact

8
that D.L. received the e-mail, not any idea expressed within the

e-mail, that violated the no-contact provision of the order.

The order would equally have been violated by an e-mail devoid

of text.

We thus conclude that the defendant's act of copying an e-

mail to D.L. did not constitute protected speech, but was

instead an act which would qualify under the broad definition of

contact prohibited by the order. See, e.g., Commonwealth v.

Russell, 46 Mass. App. Ct. 307, 309-310 (1999) (evidence of

unaccepted collect calls from incarcerated defendant to his wife

were sufficient to establish violation of "no contact" order

regardless of content of calls); Commonwealth v. Mendonca, 50

Mass. App. Ct. 684, 688 (2001) ("violation of an order not to

contact by telephone is established by proof of unexcused

conversation with a protected party over the telephone and

without proof that the protected party was placed in fear").

Accordingly, to prove a violation of the no-contact

provision of the order the Commonwealth was required to produce

sufficient evidence of such contact, but not that the contents

of the contact amounted to either abuse or harassment.

Acknowledging the Legislature "did not intend 'to make

accidents and mistakes crimes'" for the purposes of "no contact"

orders, Finase, 435 Mass. at 315, quoting Commonwealth v.

Collier, 427 Mass. 385, 388 (1998), we conclude the evidence was

9
sufficient for a rational jury to find that the defendant

intentionally made contact with D.L. in violation of the order

by copying his e-mail address to the defendant's December 15,

2017 e-mail to M.K. The evidence demonstrated the defendant was

familiar with the function and consequences of including an e-

mail address in the "Cc" field, as she, in her November 18, 2017

e-mail reply, reprimanded M.K. for exposing her to a potential

violation of the order by copying D.L.'s address in his e-mail

to her. The jury could also reasonably infer that the defendant

had intentionally removed D.L.'s e-mail address from the list of

copied recipients in her reply to M.K. on November 18, 2017, to

avoid violating the order's no-contact provision.

However, when the defendant, on December 15, 2017, sent an

e-mail to M.K. through the November 18, 2017 e-mail thread

discussed above, the evidence supported the jury concluding that

the defendant modified the existing intended recipients by

entering D.L.'s e-mail address in the "Cc" field.5 The jury was

free to reject the defendant's claim that she accidentally

copied D.L., and instead reasonably conclude based on the

circumstantial evidence that the defendant intentionally added

5 The defendant also added a new school committee member to
the "To" section of the e-mail.

10
D.L.'s e-mail address to her e-mail to M.K.6 See Collier, 427

Mass. at 389-390; Russell, 46 Mass. App. Ct. at 310.

Thus, we conclude the defendant's act of copying D.L. in

her e-mail to M.K. was sufficient to constitute a violation of

the "no contact" provision of the order. Finase, 435 Mass. at

314. See Russell, 46 Mass. App. Ct. at 309–310.

b. Refrain from harassment or abuse condition. It is

undisputed that the contents of the defendant's December 15,

2017 e-mail copied to D.L. constituted speech. "[T]he

Legislature crafted the civil harassment act, G. L. c. 258E,

with the intent that the definition of harassment exclude

constitutionally protected speech . . . ." O'Brien, 461 Mass.

at 425. For speech alone to constitute sufficient evidence of

either harassment or abuse under G. L. c. 258E, the speech must

not be protected by the First Amendment. Id. at 422, 427-429.

"While most speech is protected from government regulation by

the First Amendment to the United States Constitution and art.

16 of the Massachusetts Declaration of Rights, as amended by

art. 77 of the Amendments to the Massachusetts Constitution,

At the defendant's request, the judge instructed the jury
6

that the Commonwealth had the burden of proving "the alleged
violation did not arise by accident, unknowingly or through
inadvertence." See Commonwealth v. Podkowka, 445 Mass. 692, 699
(2006) ("Accident . . . is treated as if it is an affirmative
defense, which, when it negates an essential element of a crime
. . . must be disproved by the Commonwealth beyond a reasonable
doubt" [citations omitted]).

11
there are 'certain well-defined and narrowly limited classes of

speech' that are not protected," which include "true threats"

and "fighting words"7 (citations omitted). Id. at 422. Thus,

speech that constitutes "true threats," as relevant here, is

constitutionally unprotected and can amount to harassment or

abuse under G. L. c. 258E. Id. at 425.

For speech to rise to the level of a "true threat," the

speaker must "[mean] to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals." O'Brien, 461 Mass. at 423,

quoting Virginia v. Black, 538 U.S. 343, 359-360 (2003). The

"'true threat' doctrine applies not only to direct threats of

imminent physical harm, but to words . . . that -- taking into

account the context in which they arise -- cause the victim to

fear such harm now or in the future and evince intent on the

part of the speaker . . . to cause such fear." O'Brien, supra

at 425.

"In the usual case, whether a communication constitutes a

threat or a true threat is a matter to be decided by the trier

7 Speech amounting to "fighting words" is "limited to words
that are likely to provoke a fight: face-to-face personal
insults that are so personally abusive that they are plainly
likely to provoke a violent reaction and cause a breach of the
peace." O'Brien, 461 Mass. at 423. Because the Commonwealth
does not contend the defendant's e-mail to M.K. constituted
fighting words, our review is limited to whether the
communication amounted to a "true threat."

12
of fact" (quotation and citation omitted).8 Commonwealth v.

Bigelow, 475 Mass. 554, 567–568 (2016).

The Commonwealth argues that the contents of the

defendant's e-mail, placed in context of her prior statement she

made concerning D.L.'s children, constituted a true threat to

D.L. We are not persuaded.

Examining the defendant's e-mail in the context of her

conduct preceding it, her statements as directed to M.K. cannot

reasonably be construed as a serious expression of an intent to

cause physical harm to D.L. or his children, but rather

represented a hyperbolic expression of her frustration with the

school administration over a myriad of ongoing issues. Compare,

e.g., United States v. Fulmer, 108 F.3d 1486, 1490-1492 (1st

Cir. 1997) (defendant's voicemail message to agent that "[t]he

silver bullets are coming" amounted to sufficient evidence of

"true threat"), with Watts v. United States, 394 U.S. 705, 706-

708 (1969) (defendant's alleged statement that he would refuse

induction into Armed Forces and "[i]f they ever make me carry a

rifle the first man I want to get in my sights is L.B.J."

"[A] court may properly dismiss an indictment as a matter
8

of law if it concludes that no reasonable jury could find that
the alleged communication constitutes a threat or a true
threat." Bigelow, 475 Mass. at 567-568, quoting United States
v. Stock, 728 F.3d 287, 298 (3d Cir. 2013).

13
constituted "political hyperbole," rather than "true threat"

[quotation omitted]).

We allow that the contents of the defendant's e-mail to

M.K. were offensive, and that the words expressed failed to

represent a reasonable attempt to respectfully communicate a

position or dispute concerning the education of her children.

However, in determining whether speech constitutes a "true

threat," thus forfeiting constitutional protection, our

precedent requires either an explicit expression of the intent

to commit an act of violence to the victim, or evidence of

context that allows for a less explicitly threatening statement

to evince such intent to commit violence, nonetheless. O'Brien,

461 Mass. at 424-425, citing Commonwealth v. Chou, 433 Mass.

229, 236 (2001). It is undisputed that the defendant's e-mail

does not contain an explicit threat to harm either D.L. or his

children. The issue is whether the contents of the e-mail,

given the history of animus the defendant had toward D.L.,

allowed a rational jury to conclude the statement amounted to a

true threat.

This court provided an example of sufficient context

present to support an inference that speech constituted a "true

threat" in J.C. v. J.H., 92 Mass. App. Ct. 224, 225-229 (2017).

This court concluded that a defendant's statements to the

plaintiff of a restraining order that included "[you] should be

14
scared," "bitch," "[you will] pay the consequences," and that

"[t]his will end badly for [you]" amounted to sufficient

evidence of true threats when viewed in context of the defendant

refusing to stop following and contacting the victim over an

extended period of time, despite admonitions from law

enforcement. Id.9

Such context is lacking here. We disagree with the

Commonwealth that the defendant's prior statement that she

wanted to torture D.L.'s children provided sufficient context to

support the reasonable inference that, by copying D.L. in her e-

mail to M.K., she intended to convey an intent to physically

harm D.L. or his children.

Instead, the evidence supported the inference that the

defendant, upset by the school committee's refusal to rescind

the no-trespass order, lashed out at M.K., as she had done

9 The following cases provide further examples of sufficient
evidence of speech amounting to true threats: Chou, 433 Mass.
at 235-237 (defendant's flyers that included sexually charged
language and stated victim is missing constituted "true threat,"
as "defendant's language had no expressive purpose but was
instead, intended to 'get back' at the victim by placing her in
fear that she might suffer some sexual harm or wind up among the
'missing'"); Commonwealth v. Sholley, 432 Mass. 721, 725-727
(2000) (defendant's statement "Watch out, Counselor," to
assistant district attorney, amounted to "true threat" when
considering defendant's demeanor, tone of voice, and predictions
of "war" and "bloodshed"); A.S.R. v. A.K.A., 92 Mass. App. Ct.
270, 278-280 (2017) (defendant's statements to her former
boyfriend that "she fantasized about killing [him]," constituted
"true threat").

15
previously to D.L., by making comments about subjecting his

children to the bullying that she believed her child had

encountered at school. Although the contents of the defendant's

e-mail to M.K. may constitute harassment in the colloquial

sense, they did not rise to the level of a true threat. See

Seney, 467 Mass. at 59 & n.2, 63-64 (e-mail sent by little

league player's mother to head coach describing plaintiff "in

unflattering terms" and threatening to "forward this email along

to the rest of the team if these issues are not resolved" did

not amount to true threat sufficient for act of harassment

"because, at the very least, it was not directed at him," even

when considered in context of defendant's other explicit threats

to "punch [plaintiff] in the face" and "break both of [his]

knees"); Van Liew v. Stansfield, 474 Mass. 31, 33, 39 (2016)

(finding phone call where defendant yelled that plaintiff was

"wrong, uneducated or stupid" did not amount to "'true threat'

of imminent physical harm or words that would cause someone to

fear such harm" even considering defendant had previously

"threatened" to "com[e] after" victim [quotation and citation

omitted]).

We further conclude there was insufficient evidence to

persuade a rational fact finder that the e-mail caused D.L. to

fear that the defendant intended to commit an act of unlawful

violence to him or his children. D.L. testified that, four days

16
after being copied on the defendant's December 15, 2017 e-mail,

he forwarded it to the police "[b]ecause [he] felt like it was a

violation of [his] HPO." When the assistant district attorney

asked him if the e-mail "cause[d] [him] any personal concerns,"

D.L. responded that it did because "[a]ny contact with [the

defendant] causes [him] concern"; he was not asked to elaborate.

While it is understandable that the defendant's e-mail to M.K.

caused D.L. personal distress, his expression of concern did not

rise to the level of fear of physical harm required to meet the

standard set forth for harassment under G. L. c. 258E. See Van

Liew, 474 Mass. at 38-39; C.E.R. v. P.C., 91 Mass. App. Ct. 124,

127-128 (2017) (plaintiff's testimony that defendant's

"harassing and abusive" conduct caused her "stress and anxiety"

was insufficient evidence that act "cause[d] her fear" of

physical harm sufficient for harassment).10

c. Jury instructions. Our conclusion that the evidence

was insufficient for a rational jury to find the defendant's e-

mail amounted to harassment or abuse requires us to set aside

the verdict, even though there was sufficient evidence the

10Because we conclude the contents of the defendant's e-
mail did not constitute a true threat, and thus cannot form the
basis for a violation of the order, we need not consider whether
the contents sufficiently related to M.K.'s role as an elected
member of the school committee, and thus qualified as protected
political speech. See Bigelow, 475 Mass. at 567-568; Van Liew,
474 Mass. at 38.

17
defendant contacted D.L. in violation of the order, because

"[i]f the evidence presented to the jury would warrant a

conviction on one ground, but not on another, and it is

impossible to tell on which ground the jury relied, the verdict

must be set aside on appeal" (citation omitted).11 Commonwealth

v. Fragata, 480 Mass. 121, 129-130 (2018). This rule applies

when the grounds for conviction presented in a single charge may

be sufficiently distinct from each other to constitute different

factual bases, and either ground serves as an independent basis

for the conviction. Commonwealth v. Rollins, 470 Mass. 66, 78-

79 (2014) (setting aside defendant's conviction of one count of

possession of child pornography where it was impossible for

court to discern which of two photographs -- only one of which

met statutory definition of pornography -- submitted to jury

served as premise for their verdict).

For example, in Commonwealth v. Johnson, 45 Mass. App. Ct.

473, 475-478 (1998), this court reversed a conviction of

violating an abuse protective order, pursuant to G. L. c. 209A,

because the jury instruction permitted a conviction based on a

11We need not decide whether the defendant's objection to
the judge's instruction on harassment preserved this issue,
considering our conclusion that the uncertainty of which theory
the jury based their verdict created a substantial risk of a
miscarriage of justice that requires reversal. See Commonwealth
v. Rollins, 470 Mass. 66, 78-79 (2014).

18
finding that the defendant violated the order "by abusing [the

victim], '. . . and/or [by] contacting [her],'" where contact

was not prohibited by the order. This court concluded this

instruction created a substantial risk of a miscarriage of

justice. Id.

Here, the judge instructed the jury that they could convict

the defendant if they found the Commonwealth met its burden of

proving that "the defendant violated the order by abusing or

harassing [D.L.], or contacting [D.L.] directly or indirectly

. . . ."12 The issue whether the contents of the defendant's e-

mail constituted a true threat, and as such violated the order

to refrain from harassing or abusing D.L., is a sufficiently

distinct course of conduct, requiring different elements of

proof, from the issue whether the defendant violated the no-

contact condition by intentionally copying D.L. in her e-mail to

M.K. See, e.g., Fragata, 480 Mass. at 129-130 (evidence of

defendant's actions of (1) preventing victim from calling 911,

and (2) preventing victim from leaving her apartment constituted

The assistant district attorney asked the jury to find
12

the defendant guilty of both contacting and harassing D.L.
during the opening statement and closing argument. We note
that, "[w]here, as here, multiple theories of criminal liability
[were] presented to a jury, the Commonwealth would be well
advised to request a special verdict indicating the precise
basis for any conviction to avoid potentially needless
reversals." Commonwealth v. Manzelli, 68 Mass. App. Ct. 691,
695 n.8 (2007).

19
alternative ground to establish elements of witness

intimidation); Rollins, 470 Mass. at 78-79; Johnson, 45 Mass.

App. Ct. at 475-478. Contrast Commonwealth v. Oquendo, 83 Mass.

App. Ct. 190, 193–194 (2013) (force and threat of bodily injury

alternative ways to prove single element that defendant

compelled rape victim to submit, and not separate theories of

guilt).

Because the evidence of harassment or abuse was

insufficient, the verdict must be set aside. The Commonwealth

may retry the defendant on the ground that the defendant

contacted D.L. in violation of the order, considering sufficient

evidence was introduced to support a conviction on that basis.13

See Fragata, 480 Mass. at 130.

2. Motion to dismiss the complaint. We reject the

defendant's claim that the judge erred by denying her motion to

dismiss the complaint because (1) the clerk-magistrate failed to

consider the defendant's evidence as a complete defense to

probable cause that she violated the order; and (2) the clerk-

13We note the judge did not instruct the jury that the
Commonwealth bore the burden to prove that the speech at issue
in the defendant's e-mail qualified as constitutionally
unprotected speech that could constitute harassment. See
Bigelow, 475 Mass. at 567–568. The defendant raised no
objection to the absence of such instructions at trial, nor does
she raise the issue on appeal. The issue therefore is not
before us.

20
magistrate denied the defendant's right to be heard by refusing

to allow the defendant's husband to testify.

"After the issuance of a complaint, a motion to dismiss

will lie for a failure to present sufficient evidence to the

clerk-magistrate (or judge), for a violation of the integrity of

the proceeding, or for any other challenge to the validity of

the complaint" (citations omitted). Commonwealth v.

DiBennadetto, 436 Mass. 310, 313 (2002). We review a challenge

to the sufficiency of probable cause supporting the complaint de

novo, assessing the evidence submitted to the clerk-magistrate

in the light most favorable to the Commonwealth. See

Commonwealth v. Leonardo L., 100 Mass. App. Ct. 109, 111 (2021).

At the show cause hearing, a police officer read an

incident report detailing evidence of D.L.'s order against the

defendant and the text of the e-mail the defendant allegedly

copied to D.L. After the officer concluded his presentation of

the evidence, the defendant testified, in summary, that when

replying to M.K.'s e-mail, she accidentally copied D.L. She did

not deny that she had sent the e-mail.

Although the clerk-magistrate denied the defendant's

request to have her husband testify, she allowed the defendant's

husband to speak to the defendant on the record. In speaking to

her husband, the defendant sought to confirm her account that

21
her "reply all" to M.K.'s e-mail constituted an inadvertent

contact with D.L.

We conclude ample probable cause supported the complaint

against the defendant. Contrary to the defendant's argument,

the clerk-magistrate does not act as a fact finder, but rather

determines whether there is probable cause to issue a complaint

based on finding "reasonably trustworthy information . . .

sufficient to warrant a prudent [person] in believing that the

defendant had committed . . . an offense" (citation omitted).

Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013).

Even assuming arguendo that the clerk-magistrate erred by

declining to consider whether the defendant's claim of accident

established a complete defense, her probable cause determination

was still correct. Especially as the defendant did not dispute

the accuracy of the police report and instead only offered an

affirmative defense, the officer's testimony and the order

itself served as "reasonably trustworthy information" sufficient

to allow the clerk-magistrate to find ample probable cause the

defendant violated the no-contact provision of the order by

copying D.L. on her e-mail to M.K. Bell, 83 Mass. App. Ct. at

63. See Commonwealth v. Irick, 58 Mass. App. Ct. 129, 132

(2003) ("at a show cause hearing it is not enough for the

accused to contradict, or even cast some doubt on, the

complainant's statements"). The clerk-magistrate was bound to

22
view the evidence in the light most favorable to the

Commonwealth, see Leonardo L., 100 Mass. App. Ct. at 111, and

was not required to credit the defendant's claim of accident.

See Irick, supra at 132.

Furthermore, the clerk-magistrate's denial of the

defendant's request for her husband to testify did not deprive

the defendant's right to be heard considering her husband's

testimony would have been cumulative.14 "[T]he clerk-magistrate

retains discretion to limit the number of defense witnesses to

prevent cumulative or irrelevant testimony." DiBennadetto, 436

Mass. at 314. Here, the clerk-magistrate, decided that

testimony from the defendant's husband was unnecessary to her

probable cause determination only after hearing the defendant's

admission to the allegations in the complaint. Thus, if

allowed, the testimony of the defendant's husband would have

been inconsequential to the clerk-magistrate's probable cause

determination. We are therefore satisfied that the defendant

was properly afforded the "right to offer . . . her version of

events" at the hearing, providing the defendant the full

opportunity to be heard. Boston Globe Media Partners, LLC v.

Chief Justice of the Trial Court, 483 Mass. 80, 85 (2019).

14It is evident from his on-the-record conversation with
the defendant that the defendant's husband, if allowed to
testify, would have opined that the defendant accidentally
copied her e-mail to D.L.

23
Even if we were to find the clerk-magistrate erred by

declining to consider the defendant's accident defense and

refusing to allow her husband to testify, we see no compelling

reason to invalidate the complaint. The defendant was convicted

of violating a harassment prevention order after having "the

benefit of a full trial with jury . . . which was more than

adequate to safeguard the defendant's rights" against any of the

claimed errors made at the probable cause hearing. Irick, 58

Mass. App. Ct. at 133. "Because the defendant went to trial and

was found guilty, there is no basis for a claim of prejudice

resulting from a pretrial determination of probable cause."

Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 109-110 (2013),

citing Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 622

(2011).

3. Other claims of error. Because we reverse on the

grounds as stated, we do not reach the defendant's claims that

the judge erred by admitting evidence of the defendant's prior

bad acts, and excluding impeachment evidence pertaining to D.L.,

as these issues will not necessarily arise at a retrial based

solely on the alleged violation of the order's no-contact

provision. The defendant also claims that the prosecutor's

"inflammatory" closing argument amounted to prejudicial error

requiring reversal. While we need not decide these issues, we

do take the opportunity to remind the Commonwealth that misuse

24
of prior bad act evidence may be grounds for reversal. See

Commonwealth v. Howard, 469 Mass. 721, 744 (2014), S.C., 479

Mass. 52 (2018) ("using [evidence of] bad acts directly as

propensity evidence [in closing argument] is forbidden and

prejudicial").

Conclusion. The judgment is reversed, and the verdict is

set aside.

So ordered.

By the Court (Milkey, Sacks &
Smyth, JJ.15),

Clerk

Entered: August 26, 2024.

15 The panelists are listed in order of seniority.

25