Argued June 3, 2015
Complaint for protection from harassment filed in the Essex County Division of the Juvenile Court Department on May 23, 2014.
The case was heard by Garrett J. McManus, J., and a motion for a new trial was considered by him.
Harassment prevention order as modified by single justice of the Appeals Court affirmed. Order denying motion for new trial affirmed.
Janice Bassil ( John E. Oh with her) for the defendant.
Charlene A. Caldeira ( Stephen MacKenzie with her) for the plaintiff.
Present: Cypher, Berry, Meade, Hanlon, & Blake, JJ.
After a hearing, a judge of the Juvenile Court
extended a harassment prevention order against the juvenile defendant. See G. L.
c. 258E, § § 2-4. The defendant appeals, arguing, among other things, that the
plaintiff did not present sufficient evidence of harassment under the statute
and that the
Legislature did not intend for the harassment prevention statute to apply in circumstances such as these. We affirm.
The judge stated at the beginning of the hearing that he had reviewed the affidavit filed by the plaintiff and her father at the time of an earlier, ex parte hearing. G. L. c. 258E, § 5. He then heard testimony from both the plaintiff and the defendant. He made it clear in his findings that he found the plaintiff credible; the essential underlying facts are not in dispute.
At the time of the incidents, the defendant was eleven years old and in the sixth grade at a small private school; there were only twelve students in his class, and the plaintiff was one of them. The parties had been friends for two years and had become " boyfriend and girlfriend" within the week preceding the events at issue. On March 21, 2014, the defendant contacted the plaintiff through a telephone video chat program called " FaceTime." The tone of the conversation initially was friendly, but it changed when the defendant said to the plaintiff, " Sometimes in math when I act like I'm staring at nothing I'm actually staring at your big jugs of milk." This made her " [s]ad and afraid," " angry," and " embarrassed," and she hung up the telephone. In addition, she later learned that one of the defendant's friends had been present with the defendant during the conversation and that the friend had made a video recording of it. The friend sent her the recording a short time afterwards; she showed it to her mother, who immediately deleted it.
The day after the conversation, when both parties were walking back from physical education class, the defendant told the plaintiff that, if she showed the video recording to anyone, he would " make her life a living hell."  The plaintiff testified that she was then " very scared that [the defendant] was going to do something."
The plaintiff also testified that, soon afterwards, while the class was eating lunch in the school cafeteria, she heard the defendant " telling his sexual fantasy about [her]." On cross-examination, she clarified that the defendant's friend was relating the defendant's fantasy, with the defendant interrupting and correcting him
about details, " to make sure it was correct because it was his fantasy." While she did not remember details about the fantasy, she explicitly described it as a " sexual fantasy" and agreed with her lawyer that " [i]t had something to do with [her] body."  " [A]lmost [their] whole class" was seated around the table, and the " other kids [were] overhearing and saying, 'Whoa.'"
Following these incidents, the parties' parents communicated with each other, the school, and the local police department. Unhappy with the school's proposed plan for the situation, the defendant's parents voluntarily withdrew him from school and homeschooled him for the remainder of the school year. The defendant also sent, at his parents' request, a letter of apology to the plaintiff and her parents.
Afterwards, on May 21, 2014, the defendant attended a school play with his mother; the plaintiff also attended, as did her mother and sisters. After the play was over, all of the students gathered outside and the defendant told one of the plaintiff's friends that " he wanted to punch [the plaintiff] in the titties." The friend repeated the statement to the plaintiff, and then the defendant said it again, directly to the plaintiff. She walked away and " ran to [her] mom, and [they] drove home." At the hearing, the defendant admitted that he had expected the plaintiff to hear what he said. The plaintiff also testified that, on more than one ...