June 19, 2014
BRADFORD HARDIE, II
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
Green, Meade & Sullivan, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In July, 2013, after a hearing, a judge of the District Court issued a harassment prevention order under G. L. c. 258E. The order directs the defendant to not abuse or harass the plaintiff, to refrain from contacting her, to stay away from her, and to remain away from her residence and workplace. On appeal, the defendant claims that his conduct did not meet the standard for civil harassment.
As found by the judge after the hearing, the seventeen year old pro se plaintiff first encountered the fifty-eight year old defendant when she was running in her neighborhood in Boxborough. Prior to this, the plaintiff and defendant were not known to one another. As the plaintiff was running on the side of the street, the defendant was driving behind her and slowed down to take a photograph of her with his cellular telephone. After driving past the plaintiff, the defendant turned around, drove back toward her, and slowed down again to take another photograph of her. The defendant's conduct upset and intimidated the plaintiff; she notified the police. When the police later stopped the defendant, he admitted to the above facts and that he had a habit of photographing women with his cellular telephone. After being served with a temporary harassment prevention order, the defendant drove by the plaintiff's residence. The judge specifically discredited the defendant's testimony that his driving by the plaintiff's home was inadvertent.
The defendant raises several claims on appeal, but we need only address his claim that there were an insufficient number of acts to justify the issuance of the order. " [A] protective order under c. 258E requires a finding of 'harassment,' defined in G. L. c. 258E, § 1, as '[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.'" O'Brien
v. Borowski, 461 Mass. 415, 419, 961 N.E.2d 547 (2012).
In Smith v. Mastalerz, 467 Mass. 1001, 1001, 3 N.E.3d 576 (2014), the defendant drove past the plaintiff " while she unpacked her vehicle at the front of her home, stopped a few houses away on that street, turned around, drove past her again, and a few seconds later drove by the home again." While the defendant in Smith drove past the plaintiff three times, the Supreme Judicial Court held that this did not constitute three separate acts, but rather was " one continuous act." Ibid . The judge here did not have the benefit of Smith when she issued the order, and despite the plaintiff's admirable and able representation of herself in the District Court and this court, we are constrained to follow Smith 's holding. In other words, approaching the plaintiff from behind and taking her photograph, then driving by her, turning around, and taking another photograph a few moments later, constituted one continuous act. As a result, there were an insufficient number of acts to support the order.
Harassment prevention order dated July 25, 2013, reversed .