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14-P-1408                                            Appeals Court

                           A.T.   vs.   C.R.


                            No. 14-P-1408.

            Essex.      June 3, 2015. - October 16, 2015.

        Present:   Cypher, Berry, Meade, Hanlon, & Blake, JJ.1


Civil Harassment. Harassment Prevention. Statute,
     Construction. Intent. Evidence, Intent. Jurisdiction,
     Juvenile Court. Juvenile Court, Jurisdiction.
     Constitutional Law, Sentence, Cruel and unusual punishment.
     Words, "Intimidation," "Threat."



     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.


     Janice Bassil (John E. Oh with her) for the defendant.
     Charlene A. Caldeira (Stephen MacKenzie with her) for the
plaintiff.



    1
       This case was initially heard by a panel comprised of
Justices Meade, Hanlon, and Blake. After circulation of the
opinion to the other justices of the Appeals Court, the panel
was expanded to include Justices Cypher and Berry. See Sciaba
Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993).
                                                                     2


     HANLON, J.    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.

     Background.    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.2    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

     2
       See Frizado v. Frizado, 420 Mass. 592, 597 (1995) ("A
defendant or his counsel should be given adequate opportunity to
consider any affidavit filed in the proceeding on which the
judge intends to rely before being required to elect whether to
cross-examine the complainant or any other witness").
                                                                    3


"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."3   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

      3
       When he testified at the hearing, the defendant admitted
that he had made this statement.
                                                                   4


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."4    "[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.5

     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

     4
       The plaintiff said, "I think it was like he had a party in
his basement, and I was a pizza delivery girl, and then we went
inside, but I don't remember." Later, she agreed with the
defendant's counsel that "[i]t was something that [she] didn't
like that had something to do with something sexual in nature."
     5
         The letter was not included in the record.
                                                                       5


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 occasion, the defendant

referred to her as ". . . bitch," a play on her name.6    This made

her "angry and mad, upset, afraid."

     Two days later, the plaintiff applied for and received an

ex parte harassment prevention order against the defendant under

the civil statute, G. L. c. 258E, ordering him not to abuse,

harass, or contact her, and to remain away from her residence.7

On June 20, 2014, following an evidentiary hearing at which both

parties testified, the judge extended the order for one year.

In response, the defendant moved for a new trial and alternative

relief, supported by affidavits from his mother and rabbi.       The

motion was denied without a hearing.8    This appeal followed.


     6
       The defendant admitted in his testimony that he had used
that name for the plaintiff.
     7
       On May 29, 2014, the judge extended the initial ex parte
order until June 20, 2014.
     8
       On July 28, 2014, following the denial of his motion for a
new trial, the defendant filed a motion with the single justice
of this court to stay or modify the order. After a hearing, the
single justice modified the order, in pertinent part, by
reducing the stay away order from one hundred yards to ten
yards, with additional provisions allowing the defendant to
attend school, as well as extracurricular, sporting, and
religious events, with certain limitations. On appeal, the
                                                                   6


    Discussion.    In reviewing a civil harassment order under

G. L. c. 258E, we consider whether the judge could find, by a

preponderance of the evidence, together with all permissible

inferences, that the defendant committed "[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 [did] in fact cause fear,

intimidation, abuse or damage to property."   G. L. c. 258E, § 1,

definition of "Harassment," inserted by St. 2010, § 23.    See

O'Brien v. Borowski, 461 Mass. 415, 420 (2012) (O'Brien); Seney

v. Morhy, 467 Mass. 58, 60 (2014).   The plaintiff bears the

burden of proving that each of the three qualifying acts was

maliciously intended, defined by G. L. c. 258E, § 1, as being

"characterized by cruelty, hostility or revenge," and that each

act was intended by the defendant to place the plaintiff in

"fear of physical harm or fear of physical damage to property."

O'Brien, supra at 427.   In the determination of whether the

three acts "did in fact cause fear, intimidation, abuse or

damage to property," it is "the entire course of harassment,

rather than each individual act, that must cause fear or

intimidation."   Id. at 426 n.8.




plaintiff does not challenge the amendments to the order made by
the single justice.
                                                                   7


    In finding sufficient evidence for the extension of the

order, the judge found that "there [were] clearly three distinct

acts of harassment.   Additionally, the defendant's description

of his sexual fantasy regarding the plaintiff (with his friend's

. . . help) in the presence of the plaintiff and their other

classmates, as well as the defendant's name calling of the

plaintiff (. . . bitch), are indicative of a cumulative pattern

of harassment.   It is entirely reasonable for the plaintiff to

fear continued acts of harassment at the hands of the defendant

without appropriate Court intervention."   Specifically, the

judge noted the following three acts:   (1) the sexual comment

made during the FaceTime video chat; (2) the threat to "make

your life a living hell" if she showed the video to anyone; and

(3) the expressed desire to punch the plaintiff in her breasts.

We agree that each of these was an act of harassment, and we

note that the public recounting of the sexual fantasy could

reasonably have been determined to be a fourth.

    If the first incident, the FaceTime video with the sexually

explicit comment, had been an isolated one, and if it had

occurred in a private conversation between the parties, it is

unlikely that it would be seen as an act of harassment.

However, given that the comment was made in the presence of a

classmate, who was videotaping the conversation, it becomes

something very different -- a humiliating and intimidating
                                                                    8


moment, capable of repetition on social media indefinitely, and

part of a larger pattern of harassment that continued in the

following days.

    The threat to make the plaintiff's life a living hell

clearly was intimidation.   The word "intimidation" has not been

addressed specifically in earlier harassment cases.   However,

it appears in the statute and we note "the well-established rule

of statutory construction that 'none of the words [of the

statute . . .] should be regarded as superfluous.'"   Lee v.

Board of Appeals of Harwich, 11 Mass. App. Ct. 148, 154 (1981),

quoting from Roblin Hope Indus., Inc. v. J.A. Sullivan Corp., 6

Mass. App. Ct. 481, 486 (1978).   It is clear, therefore, that

"intimidation" has a meaning other than "fear" and should be

separately addressed.   In so doing, the definitions supplied by

the courts in other contexts are useful.   See Commonwealth v.

Gordon, 44 Mass. App. Ct. 233, 235 (1998) (Gordon) ("Webster's

Third New International Dictionary 1184 [3d ed. 1993] defines

intimidate as 'to make timid or fearful:   inspire or affect with

fear'").   In Gordon, supra, quoting from Planned Parenthood

League, Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513

U.S. 868 (1994), we explained that, "[w]ithin the context of

G. L. c. 12, § 11H, the Massachusetts Civil Rights Act, our

Supreme Judicial Court has similarly defined the concept of

intimidation as 'putting in fear for the purpose of compelling
                                                                   9


or deterring conduct.' . . .   Neither definition includes the

requirement that to intimidate another, an individual must

somehow place that person in fear or apprehension of actual

harm."

    In this case, however, the defendant's threat to make the

plaintiff's life a living hell also falls within the court's

definition of a "true threat" as described in O'Brien, 461 Mass.

at 424.   Specifically, the court explained,

    "A true threat does not require 'an explicit statement of
    an intention to harm the victim as long as circumstances
    support the victim's fearful or apprehensive response.'
    [Commonwealth v. Chou, 433 Mass. 229,] 234 [(2001) (Chou)].
    See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.
    1997) ('use of ambiguous language does not preclude a
    statement from being a threat'); United States v. Malik, 16
    F.3d 45, 49 (2d Cir.), cert. denied, 513 U.S. 968 (1994)
    ('absence of explicitly threatening language does not
    preclude the finding of a threat'). Nor need a true threat
    threaten imminent harm; sexually explicit or aggressive
    language 'directed at and received by an identified victim
    may be threatening, notwithstanding the lack of evidence
    that the threat will be immediately followed by actual
    violence or the use of physical force.' Chou, supra at
    235. See [Virginia v.] Black, [538 U.S. 343,] 359-360
    [(2003)] (defining true threats without imminence
    requirement); Doe v. Pulaski County Special Sch. Dist., 306
    F.3d 616, 622 (8th Cir. 2002) ('serious expression of an
    intent to cause a present or future harm' is true threat)."

The third act of harassment, a threat to punch the plaintiff in

the breasts, is clearly an act of harassment, and it is

significant in evaluating the pattern of harassment as a whole

that this third act took place after the defendant had sent the

plaintiff some kind of a letter of apology.    Finally, the
                                                                    10


cafeteria incident provides further evidence that the FaceTime

incident was not just a dumb remark by a clueless eleven year

old, but part of a pattern of conduct intended to isolate and

intimidate this eleven year old girl.

    The "true threat" standard enunciated in O'Brien requires

that the plaintiff must have actually suffered fear, abuse,

intimidation, or damage to property.    There is "no . . .

reasonable person element."   O'Brien, 461 Mass. at 420.     That

is, we do not ask whether a reasonable person would have been

afraid in these circumstances, but whether this plaintiff

actually was afraid and/or intimidated.    Her testimony, credited

by the judge, was that she wanted the order extended "[b]ecause

without it, [she] [felt] unsafe and afraid of him."    The

affidavit also recited that the plaintiff's father had "fear for

her safety from this boy."

    In addition, "an essential element of civil harassment is

intent. . . .   The conduct must have been intended to cause

. . . abuse . . ., intimidation, fear of personal injury, or

damage to property" (emphasis supplied).    Seney v. Morhy, 467

Mass. at 63, quoting from O'Brien, 461 Mass. at 427.    In most

cases, because it is impossible to look into someone's mind to

determine his intent, fact finders are instructed to examine the

defendant's actions and all of the surrounding circumstances and

then to draw reasonable inferences to determine what was the
                                                                  11


defendant's intent.   See, e.g., Commonwealth v. Blake, 409 Mass.

146, 150 (1991).   In this case, the defendant's repeated and

escalating harassment of the plaintiff, each time involving

additional classmates, and then persisting after adult

intervention, would reasonably support an inference that he

intended to cause the plaintiff fear and intimidation.

    However, there is no need to draw inferences here, because

the defendant said explicitly what his intent was -- to make the

plaintiff's life a living hell.   He also explained, on more than

one occasion, his motive for doing so.    The plaintiff's

affidavit recited that the defendant had told the plaintiff's

younger brother the night before the play that "he was 'fucking

with [the plaintiff]' because she ruined his life."   The night

of the play, he told the plaintiff that he wanted to punch her

because "she ruined his life."    Both of these statements support

the conclusion that the defendant, in fact, intended to cause

fear and intimidation and that he was motivated by hostility and

revenge.   See O'Brien, 461 Mass. at 426 ("To establish

harassment, a [plaintiff] must prove that the defendant,

motivated by cruelty, hostility, or revenge, wilfully committed

three or more acts aimed at a specific person, each with the

intent to cause that person to experience fear or intimidation,

or to cause abuse or damage to property, which, considered

together, did in fact cause fear, intimidation, abuse, or damage
                                                                    12


to property.   G. L. c. 258E, § 1" [emphasis supplied]).    The

elements of wilfulness, cruelty, and malice are further

illustrated by the defendant's repeated and public use of his

nickname for the plaintiff -- a play on her name ending in

"bitch."

     The defendant argues that "[t]he facts presented to the

Court displayed the poor judgment of an eleven year old boy.

They did not meet the level of criminal harassment or stalking.

No delinquency charges were pursued."    That argument simply

misapprehends the different standards and purposes behind G. L.

c. 258E, a statute providing for a civil order of protection,

and the laws labeling criminal behavior delinquent when

committed by a person under the age of eighteen.

     The defendant's age, eleven, certainly is a factor in

determining his intent, but the Legislature provided

specifically for such a determination to be an informed one by

awarding to the Juvenile Court exclusive jurisdiction over G. L.

c. 258E orders directed at juveniles.9   G. L. c. 258E, § 2.      As a

result, it is fair to conclude that, when the Legislature

deliberately entrusted to the trial court department most


     9
       In addition, when the Legislature changed the age for
determining who was a juvenile from under seventeen to under
eighteen, § 2 of the harassment order statute was amended to
reflect that change. See G. L. c. 258E, § 2, as amended by St.
2014, c. 284, § 74.
                                                                     13


experienced with juveniles exclusive authority to issue

harassment orders against them, it had young people's

limitations and abilities particularly in mind.10    It also is a

fair inference that, had the members of the Legislature intended

to put eleven year olds beyond the reach of G. L. c. 258E, they

would have done so.11

     The teaching of Miller v. Alabama, 132 S. Ct. 2455 (2012)

(Miller), cited by the dissent as instructive on the issue of

juvenile sentencing, does not assist this defendant.     Miller was

a criminal case, in which the Court concluded that "mandatory

life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment's prohibition on

'cruel and unusual punishments.'"   Id. at 2460.    See Diatchenko

v. District Attorney for the Suffolk Dist., 466 Mass. 655, 658

(2013), where the Supreme Judicial Court, also relying upon art.

26 of the Massachusetts Declaration of Rights, came to the same

     10
       Contrast G. L. c. 209A, § 2, under which the Juvenile
Court Department has no authority to issue any such orders.
     11
       Compare G. L. c. 119, § 1, as appearing in St. 2008,
c. 176, § 82 ("a presumption of competency that a child who has
attained the age of 12 is able to offer statements on the
child's own behalf . . ."); G. L. c. 119, § 23(a), as appearing
in St. 2008, c. 176, § 83 ("the department may accept a child
. . . in need of foster care"; "child" defined by G. L. c. 119,
§ 21, as appearing in St. 2008, c. 176, § 83, as "a person under
the age of 18"); G. L. c. 119, § 52, as amended through St.
2013, c. 84, § 7 ("'Delinquent child', a child between seven and
18 . . ."; "'Youthful offender', a person who is subject to an
adult or juvenile sentence for having committed, while between
the ages of fourteen and 18 . . .").
                                                                    14


conclusion.   In a criminal case, the court has a

constitutionally imposed mandate to determine whether the

sentence violates the Eighth Amendment to the United States

Constitution and/or the Massachusetts Declaration of Rights.

However, even in the context of a criminal murder in the second

degree case, the Supreme Judicial Court recently refused to

extend the Miller/Diatchenko analysis, saying,

    "although children may not have the maturity fully to
    appreciate the consequences of wrongful actions, 'that does
    not mean that a delinquent child lacks the ability to
    formulate the specific intent to commit particular wrongful
    acts.' Commonwealth v. Ogden O., 448 Mass. 798, 804
    (2007). Where the Legislature has determined that a youth
    is capable of committing certain crimes, we have noted that
    'respect for the legislative process means that it is not
    the province of the court to sit and weigh conflicting
    evidence supporting or opposing a legislative enactment.'
    [Citation omitted.] Here, . . . the Legislature has
    clearly indicated that youth in the defendant's age group
    are considered capable of committing murder, and the trial
    judge was correct to preclude the defendant from putting
    forward evidence that would have suggested it was
    impossible for anyone the defendant's age to formulate the
    necessary intent to commit this crime."

Commonwealth v. Okoro, 471 Mass. 51, 65 (2015) (upholding murder

in second degree conviction of fifteen year old juvenile).     It

is not for this court to say that this eleven year old was

beyond the reach of the statute.

    This is a civil case, interpreting a statute, G. L.

c. 258E, whose purpose is protective, not penal.    The burden of

proof is "preponderance of the evidence," not proof beyond a

reasonable doubt.   Frizado v. Frizado, 420 Mass. 592, 597
                                                                    15


(1995).   Iamele v. Asselin, 444 Mass. 734, 736 (2005).   The

judge had an opportunity at the hearing to observe both the

plaintiff and the defendant, including their demeanor.    He made

decisions about their credibility and issued this harassment

prevention order.   A single justice of this court then reduced

the distance the defendant was required to stay away from the

plaintiff to ten yards.12   In our view, given all that has

occurred, this plaintiff is entitled to that order of protection

under G. L. c. 258E, commanding the defendant to stay that ten

yards away from her.

                                    Harassment prevention order
                                       as modified by single
                                       justice of the Appeals
                                       Court affirmed.

                                    Order denying motion for new
                                       trial affirmed.




     12
       The plaintiff does not challenge that reduction in this
court. See note 8, supra.
    BLAKE, J. (dissenting, with whom Meade, J., joins).       I

respectfully dissent.   In my view, the evidence was insufficient

for the judge to issue a harassment protection order.    In

reviewing a civil harassment order, we consider whether the

judge could find, by a preponderance of the evidence, together

with all permissible inferences, that the defendant committed

"[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 [did] in fact

cause fear, intimidation, abuse or damage to property . . . ."

G. L. c. 258E, § 1, inserted by St. 2010, c. 23.    See O'Brien v.

Borowski, 461 Mass. 415, 420 (2012); Seney v. Morhy, 467 Mass.

58, 60 (2014).   The plaintiff bears the burden of proving that

each of the three qualifying acts was maliciously intended,

defined by G. L. c. 258E, § 1, as being "characterized by

cruelty, hostility or revenge," and that each act was intended

by the defendant to place the plaintiff in "fear of physical

harm or fear of physical damage to property" (emphasis

supplied).   O'Brien v. Borowski, supra at 427.

    A victim's response to the conduct in question is viewed

subjectively, as opposed to the reasonable person standard

articulated in the criminal harassment statute.    Compare G. L.

c. 258E, § 1 (acts must "in fact cause fear, intimidation, abuse

or damage to property"), with G. L. c. 265, § 43A, as appearing
                                                                    2


in St. 2010, c. 92, § 10 (pattern of conduct or series of acts

that seriously harms that person and "would cause a reasonable

person to suffer substantial emotional distress").    It is "the

entire course of harassment, rather than each individual act,

that must cause fear or intimidation."     O’Brien, supra at 426

n.8.

       In finding sufficient evidence for the extension of the

order, the judge relied on the following three acts:     (1) the

sexualized comment made during the FaceTime video chat; (2) the

"make your life a living hell" threat; and (3) the expressed

desire to punch the plaintiff in her breasts.

       As for the third act, I agree that the threat to punch the

plaintiff in the breasts meets the requirements of the statute,

as it is an unambiguous threat of violence.    In contrast, the

remaining acts do not, in my view, overtly express or imply an

intent to physically harm the plaintiff.    Apart from

embarrassing her and preventing her from sharing the recorded

video, any further, malicious intent is unclear without

testimony from the defendant about what he intended by his

actions and statements.    No such testimony was elicited, apart

from the defendant's affirmations that he "just said things

without thinking" and "without any intention of carrying out any

of these things."    Just as sparse is the record evidence of the

plaintiff's fear of physical harm, save that she was generally
                                                                   3


angry, embarrassed, and afraid.   Critically, nowhere in the

plaintiff's testimony did she articulate what she was afraid of,

and the evidence is not so strong as to permit that inference on

the record as it stands.

     Equally important to the analysis is the fact that the

defendant was eleven years old and in the sixth grade when the

acts occurred.   While the language of G. L. c. 258E does not

delineate between adult and juvenile defendants, with the

exception of jurisdiction, the age of the defendant cannot be

ignored.   In the context of juvenile sentencing, the United

States Supreme Court has addressed the significant gaps between

juveniles and adults, noting that children have a "lack of

maturity and an underdeveloped sense of responsibility, leading

to recklessness, impulsivity, and heedless risk-taking" and that

"children are more vulnerable . . . to negative influences and

outside pressures, including from their family and peers . . ."

(quotations and citation omitted).    Miller v. Alabama, 132

S. Ct. 2455, 2464 (2012) (Miller).1



     1
       The Supreme Judicial Court applied the rationale of Miller
in Diatchenko v. District Attorney for Suffolk Dist., 466 Mass.
655, 667-671 (2013) (Diatchenko I), again in the context of
sentencing, and has cited the same principles in Doe, Sex
Offender Registry Bd. No. 68549 v. Sex Offender Registry Bd.,
470 Mass. 102, 115 (2014) (registration of sex offenders), and
Diatchenko v. District Attorney for Suffolk Dist., 471 Mass. 12,
23 (2015) (Diatchenko II) (parole for juvenile offenders). See
Watts v. Commonwealth, 468 Mass. 49, 57 & n.13 (2014) (Watts).
                                                                     4


     The defendant's intent, beyond embarrassing the plaintiff

and sidestepping personal responsibility, is all the more

uncertain when applying the principles set forth in Miller and

its progeny.   The nature of the defendant's actions and words

indeed display those traits described in Miller:     lack of

maturity and sense of responsibility, leading to impulsive

behavior resulting in unintended consequences.2,3    The

defendant's lack of appreciation for and understanding of his

actions is especially apparent in the sophomoric words he used

(i.e., titties and jugs of milk) and the name he called the

plaintiff (". . . bitch").4

     The plaintiff counters that the sexual nature of the

comments, when considered in the totality of the circumstances,

must have been intended to cause the plaintiff fear, or at

least, to be intimidated.     Specifically, the plaintiff contends

the FaceTime incident, viewed in the context of the defendant's

     2
       The application of these principles is even more
compelling here, as the defendant was significantly younger at
the time of the conduct in question than the defendants in
Miller (fourteen), Diatchenko I (seventeen), and Watts
(seventeen). See Miller, 132 S. Ct. at 2461-2462; Diatchenko I,
466 Mass. at 656; Watts, 468 Mass. at 50.
     3
       When asked how he felt about what happened, the defendant
unconsciously admitted to being impulsive, stating that his
behavior "made me feel like it wasn't who I am. I would not do
that. Something just kind of took over me."
     4
       Notably, the judge considered the plaintiff's age and
maturity level in extending the order, but failed to address
these same considerations as they may apply to the defendant.
                                                                    5


subsequent pronouncement that he would make the plaintiff's life

a living hell if she showed the video to anyone, is an act of

harassment.   Even assuming, arguendo, that this "threat" is

sufficient to constitute an act of harassment, there remains a

question as to whether the defendant's prior, initial statement

was made with the intent to place the plaintiff "in fear of

physical harm or physical damage to property," O'Brien, 461

Mass. at 427, or was simply a statement of juvenile attempted

sexual bravado or offensiveness.   There is, indeed, no evidence

that the initial statement was made with intent to place the

plaintiff in fear of physical harm, as O'Brien requires.

Moreover, the statute requires three acts.   The plaintiff also

argues that the recitation of the defendant's fantasy is an act

of harassment.   Again, without more detail about the defendant's

intent and the plaintiff's response, the evidence was

insufficient to conclude that this was an act of harassment.5

     While the actions of the defendant cannot be condoned, and

the fear and embarrassment felt by the plaintiff are certainly

real and understandable, on this record the plaintiff has not

sustained her burden of proof.     For these reasons, I dissent.




     5
       It is telling that neither party recalled the specifics of
the "pizza fantasy" during their testimony at the evidentiary
hearing.
