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18-P-20                                             Appeals Court

                        R.S.   vs.   A.P.B.


                          No. 18-P-20.

           Essex.      March 4, 2019. - May 28, 2019.

           Present:   Wolohojian, Milkey, & Blake, JJ.


Harassment Prevention. Protective Order.      Social Media.
     Evidence, Authentication.



     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.


    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
                                                                     2


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.




     1 A.P.B. is not entitled to appellate review of the ex parte
order. See V.M. v. R.B., 94 Mass. App. Ct. 522, 524-525 (2018);
C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 564 (2017). The
hearing after notice is the review provided by law for an ex
parte order.

     2   R.S. did not file a brief or participate in this appeal.

     3 As discussed infra, the sexually aggressive messages were
not from accounts with A.P.B.'s name or variations of his name.
                                                                      3


     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


     4 In this case, there was no error in the conversion of the
type of order requested from c. 209A to c. 258E. At all times
                                                                   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" account6 with three variations of A.P.B.'s name:




A.P.B. had notice that the order was issued as a harassment
prevention order, there was no objection to the conversion, and
A.P.B. suffered no prejudice from the conversion. See Frizado
v. Frizado, 420 Mass. 592, 596-598 (1995) (basic due process
considerations apply in context of these proceedings).

     5 Examples of these messages include, "Can you tell [R.S.]
that I'm looking for her?" and, "Tell her I think of her every
day I wake up. She won't regret it if she texts me, and I won't
take no for an answer. I mean that in a great way." A friend
of R.S. responded to A.P.B., "[W]hat do you want from her?" He
replied, "To be friends and say sorry. Tell her I ain't giving
up. What do I have [to do] for [R.S.] to talk to me?" At the
ex parte hearing R.S. described receiving a picture that
included A.P.B.'s "stomach and also lower, one of them was, but
not -- [p]ictures of his penis." R.S. did not recount this
testimony at the hearing after notice and did not provide the
judge with copies of the messages she received that she
apparently had with her at the ex parte hearing.
                                                                     5


"[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 names8 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


     6 "Snapchat is a social media website on which a member may
share information with a network of 'friends.'" F.K. v. S.C.,
481 Mass. 325, 327 (2019).

     7   R.S. did not describe the content of these messages.

     8 The names were "Mike Williams," "Tyler Bennett 59," "Cam
Carter 59," "Bar Stool Smokes 59," and "Nudes for Money 59."
                                                                        6


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 nudes."       She then received a picture of a leg.

       Before she contacted the college police, R.S. reached out

to a mutual friend asking for help in stopping the messaging.

R.S. testified that the friend said, "It's been, like, two

years.      [A.P.B.] admitted to doing it a few times, but he claims

he hasn't done it in a while . . . ."       "It" was never defined.

       The detective lieutenant testified that the college police

were investigating the case and that "anybody, basically, can

create a user name.      They just create a new email address and

they get this user name . . . ."       She acknowledged that it was

very difficult to actually track who sends these types of

messages.9




       There were messages that A.P.B. acknowledged he sent. He
       9

reached out to the R.S. on the anniversary of his half-sister's
death and on R.S.'s birthday. He contacted a mutual friend
after he found some of R.S.'s personal property and wanted to
return it to her. None of these acts constitutes harassment as
defined by G. L. c. 258E, § 1. A.P.B. testified that after he
was asked not to contact R.S., he did not contact her again.
                                                                     7


    At the conclusion of the hearing, A.P.B. argued, as he does

here, that there was insufficient evidence of three acts of

harassment and no evidence of "cruelty, hostility, or revenge

that would allow the court to extend the order."    The judge

extended the order for one year.

    Standard of review.   We review a c. 258E order to determine

whether a fact finder could conclude "by a preponderance of the

evidence, together with all permissible inferences, that the

defendant had 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" (quotation and citation omitted).     Gassman v.

Reason, 90 Mass. App. Ct. 1, 7 (2016).     "[T]here are two layers

of intent required to prove civil harassment under c. 258E:     the

acts of harassment must be wilful and '[m]alicious,' the latter

defined as 'characterized by cruelty, hostility or revenge,' and

they must be committed with 'the intent to cause fear,

intimidation, abuse or damage to property.'"    O'Brien v.

Borowski, 461 Mass. 415, 420 (2012), quoting G. L. c. 258E, § 1.

    Discussion.   1.   Messages from A.P.B.    The plaintiff must

demonstrate, by a preponderance of the evidence, that the

defendant committed three or more acts of harassment within the

meaning of G. L. c. 258E, § 1.     See Van Liew v. Stansfield, 474
                                                                     8


Mass. 31, 36-37 (2016).     R.S. testified that she received three

messages that included A.P.B.'s name, all of which related to

the status of their relationship.    A.P.B. was persistent in

trying to contact R.S., but none of those messages established

harassment.   Moreover, there was no evidence that the messages

were sent by A.P.B. willfully or maliciously "each with the

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

property" (quotation omitted), Seney v. Morhy, 467 Mass. 58, 63

(2014), and which did in fact cause R.S. fear, intimidation,

abuse, or damage to property.    It is understandable that R.S.

may have felt aggravated or annoyed by these messages.    She

testified that she was not in fear, however, and the evidence

was insufficient to find that these messages constituted acts of

harassment.

     2.   Messages from fake accounts.    R.S. also received

messages from accounts that she called fake accounts, but which

she believes were sent by A.P.B.    Many of these messages

included the number "59."    There was no evidence about the

significance of this number, and none of the addresses bearing

A.P.B.'s name included this number.10    In addition, these fake

accounts did not include A.P.B.'s name or any variation thereof.

While circumstantial proof may be sufficient to prove that


     10The messages from A.P.B. included the numbers "123,"
"96," and "82." See infra at    .
                                                                     9


someone sent harassing messages, here, the messages with the

"adds" are completely different in form and substance from the

messages sent by A.P.B.11   Indeed, the detective lieutenant

testified that "anybody, basically, can create a user name,"

acknowledging that it was very difficult to actually track who

sent these types of messages.   When asked, R.S. confirmed that

she was "speculating" that A.P.B. sent these messages.

     In many ways, these fake account messages are akin to an

anonymous letter.   Indeed, where a witness has received a letter

and cannot identify the writer's handwriting or signature,

evidence that the writer identified himself as a particular

individual is not sufficient to authenticate the letter as being

from the defendant.   Commonwealth v. Purdy, 459 Mass. 442, 449

(2011).   Moreover, although "e-mails and other forms of

electronic communication present their own opportunities for

false claims of authorship, the basic principles of

authentication are the same."   Id. at 450.   To determine whether

there was sufficient evidence that these fake accounts were

created by A.P.B., we look at the "[a]ppearance, contents,

substance, internal patterns, or other distinctive

characteristics" of the messages (citation omitted).     Id. at


     11Although one message from A.P.B. may have included an
inquiry whether R.S. wanted a photograph of A.P.B.'s genitalia,
which he did not send, the messages otherwise are completely
different in form and substance.
                                                                    10


448.    "Evidence that the defendant's name is written as the

author of an e-mail or that the electronic communication

originates from an e-mail or a social networking Web site . . .

that bears the defendant's name is not sufficient alone to

authenticate the electronic communication as having been

authored or sent by the defendant" (citation omitted).

Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 758-759 (2016).

See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 314 (2019).

       Here, the names on the fake accounts bear no resemblance to

those accounts that A.P.B. acknowledged were his.    They do not

contain his name or any variation of his name.    Also, the tone,

tenor, and content of the messages from A.P.B. are in stark

contrast to the fake account messages at issue here.     A.P.B.'s

messages are reflective of an effort to revive a relationship

that R.S. admits was on again, off again.    By contrast, the fake

account messages contain sexual innuendo and vulgarity,

something noticeably absent from A.P.B.'s messages.    Here, R.S.

was unable to bridge the evidentiary gap concerning these

messages.

       Because we determine that the evidence of who sent the fake

account messages was insufficient to conclude it was the

defendant, and the messages admittedly sent by A.P.B. were not

harassing, we need not reach the other claims raised by A.P.B.
                                                                11


    Conclusion.    The c. 258E harassment prevention order

entered on October 24, 2017, is vacated.   The appeal from the ex

parte c. 258E order entered on October 16, 2017, is dismissed as

moot.   See V.M. v. R.B., 94 Mass. App. Ct. 522, 527 (2018).

                                   So ordered.
