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R.S. v. A.P.B.

Appeals Court of Massachusetts, Essex

May 28, 2019

R.S.
v.
A.P.B.

          Heard: March 4, 2019.

         Complaint for protection from abuse filed in the Lawrence Division of the District Court Department on October 16, 2017.

         The case was heard by Mark A. Sullivan, J.

          Francis T. O'Brien, Jr., for the defendant.

          Present: Wolohojian, Milkey, & Blake, JJ.

          BLAKE, J.

         The defendant, A.P.B., appeals from the issuance and extension of a G. L. c. 258E harassment prevention order (c. 258E order) in the District Court. He claims that the evidence was insufficient to support the issuance of the ex parte order and the order after notice. We agree and vacate the order that entered at the hearing after notice.[1]

         Background.

         The parties, who were students at the same college, had previously had a romantic relationship. By March, 2017, their on-again, off-again relationship had ended. At this time, the plaintiff, R.S., [2] began receiving an increasing number of text messages and other messages through various social media websites. She asked A.P.B. to stop messaging her and eventually blocked his telephone number and "Twitter" social media account. A.P.B. then reached out to friends of R.S. Thereafter, R.S. received messages that she described as "linked to [A.P.B.'s] name" as well as messages from what she called "fake accounts" and some that were "sexually aggressive."[3] R.S. contacted a mutual friend of the parties and asked him to ask A.P.B. to "stop." R.S. continued to receive messages from more fake accounts, causing her to file a police report with the college police department.

         Ex parte hearing. On October 16, 2017, R.S. applied for an abuse prevention order pursuant to G. L. c. 209A. In support of her request, R.S. filed an affidavit that recounted the parties' on and off relationship. In her affidavit, R.S. wrote that "[d]ue to [A.P.B.'s] persist[e]nce through his messages and graphic language, he has instilled fear in me." At the ex parte hearing, the judge asked R.S. a series of questions. He asked, "You were nervous about [the messages] but you weren't afraid at that point?" R.S. answered, "No." The judge then asked whether there had been "any problems with abuse or was [A.P.B.] being too physical with you or anything" during the relationship. She again answered, "No." The judge then asked, "[A]re you feeling like he is harassing you or do you feel like he is abusing you?" and before R.S. responded, the judge stated, "This needs to be a harassment order. This is not a -- abuse is defined as harming, threatening to harm you physically or placing you in fear of imminent harm. That's not what you're telling me. But you are telling me that you're afraid of him because he is harassing you with the volume of contact and the content of those contacts." R.S. replied, "Yes, the content." The judge did not issue a domestic abuse prevention order pursuant to G. L. c. 209A. Instead he issued a harassment c. 258E order.[4]

         Hearing after notice. On October 24, 2017, a different judge held an evidentiary hearing on R.S.'s request for an extension of the c. 258E order. A.P.B. appeared with counsel. R.S. appeared pro se and testified in narrative form, answering questions interposed by the judge. A detective lieutenant from the college police department was also present. R.S. recounted much of what was set forth in her affidavit concerning her receipt of social media and text messages. After blocking A.P.B. from her accounts on these sites in the spring of 2017, she continued to receive messages, as did some of her friends.[5]

         R.S. testified that she thereafter received messages on her "Snapchat" account[6] with three variations of A.P.B.'s name: "[A.P.B.] 123," "[A.P.B.] 96," and "[A.P.B.] 82."[7] None of these messages were abusive, malicious, or intimidating. At the end of the summer of 2017, she received a Snapchat message from someone whom she believed was A.P.B.'s eleven year old brother. There was no evidence of the content of this message. A.P.B. also messaged another friend of R.S. claiming he found something that belonged to R.S. R.S. asked the friend to tell A.P.B. to leave R.S. alone.

         Upon her return to school in the fall of 2017, R.S. described receiving "a[d]ds" on her Snapchat account from people she did not know. Most of the names[8] included the number 59, a number that had no significance to her. R.S. replied to one of these messages, asked if they were coming from A.P.B., and asked for the messages to stop. The response was "just send me some nudes . . . send me pics." When R.S. asked who the messages were from, the sender responded, "the guy who wants to fuck you senseless." She asked if it was A.P.B. After some additional messaging the sender said, "[A.P.B.] gave me your Snap, though. I'm trying to fuck." R.S. asked to be left alone and the response was, "You sure you're good? You don't want to have any fun? Yes or no, final answer."

         Thereafter R.S. received a Snapchat "add" from "Matty P 559" with a message that read, "heard [R.S.] send[s] nudes for money." It continued, "what are you doing? A couple of nudes each, no ones [sic] got to know. . . . If you don't answer, I'm going to send you ...


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