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14-P-398                                              Appeals Court

                  CAROL DEMAYO   vs.   DAVID QUINN.


                            No. 14-P-398.

     Berkshire.       November 3, 2014. - February 24, 2015.

           Present:     Green, Wolohojian, & Blake, JJ.


Harassment Prevention. Civil Harassment.      Protective Order.
     Words, "Specific person."



     Complaint for protection from harassment filed in the
Northern Berkshire Division of the District Court Department on
December 13, 2013.

    The case was heard by Michael J. Ripps, J.


    Mark J. Pasquariello for the defendant.


    BLAKE, J.     On December 17, 2013, following an ex parte

hearing, a harassment prevention order (order) was issued

against the defendant pursuant to G. L. c. 258E.      A further

evidentiary hearing was held, at which the plaintiff testified,

and the order was extended for one year.     The defendant appeals

from the extension of the order, claiming that his conduct was
                                                                       2


neither "willful or malicious," nor "aimed at a specific

person," as required by the statute.    We agree as to the latter

point, and accordingly vacate the order.

     1.   Background.   The undisputed facts are as follows.     The

plaintiff owns a horse boarding facility; she also resides at

the same property with her husband.     In late August, 2013, the

plaintiff discovered that particular items in the horse barn

were either missing or had been rearranged.    When the episodes

continued, and a horse's allergy medication and needles

disappeared, the plaintiff set up a video camera and contacted

the police.   The police then set up their own surveillance

camera, which captured an unauthorized individual, eventually

identified as the defendant, engaging in various activities

inside the barn on five different occasions.    The videotape

recording of those incidents showed the defendant taking items

from the barn's refrigerator, rearranging hay bales, and

throwing items into a horse's stall.1    Although the plaintiff is

not the legal owner of the horse involved, the facility was

responsible for its care.

     2.   Legal requirements.   "An Act relative to harassment

prevention orders," codified as G. L. c. 258E, was enacted to:

(1) provide protection to victims of sexual assault, stalking,

     1
       The items included Tupperware container covers and hand
sanitizer. The barn was kept unlocked in the event the horses
needed to be quickly evacuated due to weather or fire.
                                                                     3


and criminal harassment that is unavailable under the domestic

abuse prevention law, G. L. c. 209A; and (2) make violations of

these orders punishable as a crime.    Seney v. Morhy, 467 Mass.

58, 60 (2014).2    In order to obtain a c. 258E order, a plaintiff

must demonstrate that she is suffering from harassment.

"Harassment," insofar as relevant here, is defined 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."      G. L.

c. 258E, § 1, inserted by St. 2010, c. 23.

     3.   Wilful and malicious conduct.   On appeal, the defendant

concedes that his actions may have been intentional, but

contends they were not malicious, which the statute defines as

"characterized by cruelty, hostility or revenge."    G. L.

c. 258E, § 1.     We disagree.

     "A plaintiff seeking protection through a civil harassment

order must show that the defendant engaged in at least three

wilful and malicious acts, and that for each act the defendant

intended to cause fear, intimidation, abuse, or damage to

property."   O'Brien v. Borowski, 461 Mass. 415, 426 n.8 (2012).

Here, the uncontested evidence, as captured on video

     2
       A relationship between the parties is not required to
qualify for a c. 258E harassment prevention order; the same is
not true for abuse prevention orders under c. 209A.
                                                                    4


surveillance, shows that the defendant, on at least three

occasions, caused damage to property either owned or in the care

of the plaintiff.    It is implicit in the judge's oral findings,

particularly in relation to the horse, that the judge considered

the acts to be either cruel, hostile, or both.3    He also found

that the defendant's actions placed the plaintiff in actual

fear.    Given the judge's findings, which we will not disturb on

appeal unless clearly erroneous, Millennium Equity Holdings, LLC

v. Mahlowitz, 456 Mass. 627, 637 (2010), the cumulative effect

of the acts were sufficient to meet the statutory definition of

wilful and malicious conduct.    See O'Brien v. Borowski, 461

Mass. at 426 n.8.

     4.    Conduct aimed at a specific person.   The defendant

further argues that there was insufficient evidence to conclude

that his actions were aimed at the plaintiff.     We agree.

     Our decisional law has not yet addressed that portion of

c. 258E which requires the acts to be "aimed at a specific

person."   However, that phrase tracks language of the criminal

harassment statute, G. L. c. 265, § 43A, as amended by St. 2010,

c. 92, § 10, which provides, in relevant part, that "whoever

willfully and maliciously engages in a knowing pattern of

     3
       Specifically, the judge found that destroying the horse's
medication "put [the] animal at risk," and that the defendant's
behavior caused harm to the horse. He further stated, "[t]he
degree of maliciousness, well, if you break and enter into
people's property and throw their stuff around."
                                                                     5


conduct or series of acts over a period of time directed at a

specific person, which seriously alarms that person and would

cause a reasonable person to suffer substantial emotional

distress, shall be guilty of the crime of criminal harassment"

(emphasis added).      See O'Brien v. Borowski, 461 Mass. at 420

("Both civil and criminal harassment require proof of three or

more acts of wilful and malicious conduct aimed at a specific

person"); Commonwealth v. Johnson, 470 Mass. 300, 312 (2014)

("Section § 43A[a] requires that the Commonwealth prove three or

more predicate acts of harassment that were 'directed at a

specific person'").

    In the criminal context, the "'specific person' referred to

is the victim -- the person who is 'seriously alarm[ed]' by the

harassment."    Commonwealth v. Welch, 444 Mass. 80, 90 (2005),

quoting from G. L. c. 265, § 43A(a).     More precisely, "this

provision, by its plain terms, requires the Commonwealth to

establish, at the very least, that the defendant intended to

target the victim with the harassing conduct on at least three

occasions."    Ibid.   Although not defined in G. L. c. 258E, § 1,

we see no reason for this shared term ("at a specific person")

to have a different meaning in the context of civil harassment.

    Here, there is nothing about the actions of the defendant

to suggest that he undertook them with an intent to cause fear

on the part of the plaintiff, or anyone at the property.      The
                                                                     6


plaintiff acknowledged that she lived on the property with her

husband, that customers of the barn came to and from the

property at all times of the day and night, and that an

unrelated family of four also lived on the property.     Moreover,

the parties did not know one another.   The plaintiff also

acknowledged that while she did not know the defendant, she knew

of his family and that he had a brother.4   In fact, it was the

police who identified this defendant as the individual depicted

on video surveillance.   There was no apparent or inferential

animus between the plaintiff and the defendant.

     While a relationship between the parties is not a

requirement to secure a c. 258E order, given the number of

residents on, and visitors to, the plaintiff's property, in

combination with a defendant and plaintiff unknown to one

another, there is insufficient evidence in this case to conclude

that the defendant's acts were directed specifically at the

plaintiff, or at a specific person at all.5



     4
       We do not suggest that a defendant must know the target of
harassing conduct personally to be the subject of a harassment
prevention order. We recognize that in circumstances other than
those of the present case, evidence may allow a reasonable
inference to be drawn that the defendant intends his conduct to
cause fear, intimidation, abuse, or property damage to an
identifiable, although unknown, person.
     5
       We recognize that wilful damage to property may cause
distress or concern to the owner of that property, whomever that
might be. In our view, however, property damage, without more,
                                                                    7


    While the judge entered no written findings, at the

conclusion of the hearing, he made certain oral findings.      In

response to the defendant's claim that the acts were not wilful

or malicious, the judge stated:   "Well, certainly willful in the

sense that it was done deliberately.   I think you can infer

that."   At the conclusion of the hearing, the judge stated:

"I'm satisfied there's three or more incidents, and I'm

extending the order until December 16th, 2014."   The judge made

no findings as to whether the defendant's actions were directed

at the plaintiff.   While the defendant's actions are

understandably disturbing and unsettling to the plaintiff, the

evidence does not support a finding that he intended to target

her specifically.   Cf. Commonwealth v. McDonald, 462 Mass. 236,

243 (2012) (reversal of criminal harassment conviction where

conduct did not have sufficient connection to plaintiff).

    Accordingly, we remand the case to the District Court for

entry of an order vacating the harassment prevention order

against the defendant.

                                    So ordered.




may be inadequate to satisfy the requirement of c. 258E that the
action be aimed at a specific person.
