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15-P-1612                                            Appeals Court

                            J.C.   vs.   J.H.1


                             No. 15-P-1612.

         Essex.     November 14, 2016. - September 14, 2017.

            Present:    Sullivan, Maldonado, & Neyman, JJ.


Civil Harassment. Harassment Prevention. Protective Order.
     Statute, Construction. Evidence, Intent, Presumptions and
     burden of proof. Practice, Civil, Burden of proof,
     Presumptions and burden of proof. Firearms.



     Complaint for protection from harassment filed in the Lynn
Division of the District Court Department on October 14, 2014.

     A hearing to extend the harassment prevention order was had
before Albert S. Conlon, J.


     J.H., pro se.
     Christine I. Wetzel for the plaintiff.


     SULLIVAN, J.      The defendant, J.H., appeals from a civil

harassment prevention order issued pursuant to G. L. c. 258E.2



     1
       We identify the parties by their initials in order to
protect the identity of the plaintiff, in accordance with 18
U.S.C. § 2265(d)(3) (2012).
                                                                         2


He contends that his former girl friend, the plaintiff, J.C.,

did not prove three or more acts of harassment as defined by

G. L. c. 258E, § 1.       He further contends that the judge was

without authority to order the surrender of his firearms.          For

the reasons that follow, we vacate so much of the order as

required the defendant to surrender his firearms.

       Background.     We summarize the facts consistent with the

judge's findings and rulings based on the affidavits filed and

the testimony given at the hearing on the extension of the

harassment prevention order.       The defendant initiated a

relationship with the plaintiff in August of 2010 after meeting

her at an Alcoholics Anonymous (AA) meeting.       The plaintiff

ended their relationship in April of 2013.       After the

relationship ended, the defendant made the plaintiff "very

uncomfortable."      The plaintiff changed her activities to avoid

him.       She did so because he was "pushy" and "suggested [they]

get together for sex," even though she said no and repeatedly

stated the relationship was over.       She attended a different AA

meeting and switched to a different yoga studio than the one she

had frequented when she was with the defendant.       The defendant



       2
       The defendant appeals from the extension of the order that
entered on the docket on November 7, 2014. Notwithstanding the
expiration of that order (and an extension entered on November
6, 2015), the defendant's appeal is not moot. See Seney v.
Morhy, 467 Mass. 58, 62 (2014).
                                                                     3


continued to contact the plaintiff.     He sent her text messages,

and she responded that she wanted to be left alone.

     In July of 2013, the plaintiff received a series of text

messages from the defendant.3   In the first message, the

defendant texted, "You should be scared.    I know where you

practice yoga.   See you at yoga, bitch!"    The plaintiff asked

him not to contact her, and sought the assistance of the police,

who told the defendant to cease all contact with the plaintiff.

Undeterred, the defendant continued to contact her and appeared

at the plaintiff's yoga class in November or December of 2013.

The defendant looked at the plaintiff "angrily."     The plaintiff

was fearful that he would follow her home, and she left the

class early to avoid him.

     Other text messages set a similar tone and provide further

context.   In a second text message sent in July, 2013, the

defendant texted the plaintiff, "You don't get it.    You have

much more to lose in this than I do.    If you're so stupid to

tell anyone in AA about us, you'll be fucked."     He then texted,

"If you tell [your boy friend] about us, I'll send him naked

pictures of you that'll prove you're a slut.     I'm keeping the

pictures for blackmail purposes."     The defendant then sent

numerous text messages to the plaintiff's boy friend.     A third


     3
       It is unclear from the record whether these messages were
all sent on the same day or on different days.
                                                                     4


text message the defendant sent to the plaintiff during the

month of July, 2013, stated, "And, if you tell [your boy friend]

about the affair, I'll tell him how crazy and fucked up you are.

I will ruin you.    Don't cross me.   This will end badly for you.

You will pay the consequences."4

     As noted above, the plaintiff telephoned her local police

department and, while no report was filed, the police telephoned

the defendant and told him not to contact the plaintiff.     The

defendant continued to contact the plaintiff, who told him to

leave her alone.

     In addition to following the plaintiff to the yoga studio,

the defendant also appeared at a Starbucks in December of 2013,

where the plaintiff was seated with a friend.     "He was very red

in the face and made extremely intimidating facial expressions

towards [her]."    The plaintiff immediately left the Starbucks.

The defendant continued to text the plaintiff after this

incident, telling her that she should apologize for going to the

police.

     On January 1, 2014, the plaintiff filed a police report

with the local police.    Once again, a police officer telephoned

the defendant and told him not to contact the plaintiff.     The

defendant continued to contact the plaintiff through electronic


     4
       In another text message, the defendant referred to her as
a "whore."
                                                                   5


mail messages (e-mail), text messages, and letters.   In May of

2014, the plaintiff went again to the police to report that the

defendant continued to contact her and that the defendant had

approached the plaintiff's boy friend and asked to speak to him.

The police advised the plaintiff of her right to seek a

harassment prevention order.   The defendant continued to try to

contact the plaintiff through a friend.   He sent the plaintiff a

letter in April of 2014 in which he stated, "I will admit to my

jealousy."   He promised not to contact her again, and asked that

she not go to the police.

     On July 30, 2014, the defendant appeared at the plaintiff's

workplace, a private home where she was caring for children.      He

tried to talk to her, and blocked the driveway with his truck.

The plaintiff "immediately took the kids inside their house,"

afraid that he would try to engage her.   After that incident,

the plaintiff received letters, text messages, and a flower

delivery from the defendant, all in an effort to rekindle the

relationship.5   At this juncture the relationship had been over

for fifteen months, and both the plaintiff and the local police

department had made numerous unsuccessful efforts to dissuade

the defendant from contacting and following her.



     5
       At the hearing on the extension of the order, the
defendant admitted that both the plaintiff and the police asked
him to stop contacting the plaintiff and that he did not do so.
                                                                      6


    On October 14, 2014, the plaintiff filed a complaint for an

ex parte harassment prevention order.     The ex parte order

issued, and the order was extended for one year at a hearing

held on November 7, 2014, at which the judge found that the

plaintiff had satisfied her burden in light of the "overwhelming

number" of contacts, "particularly in the face of [the

defendant] being told by the police that [he] just shouldn't be

going there."   The judge also specifically noted the fact that

the defendant had followed the plaintiff to the yoga studio and

Starbucks.

    Discussion.    1.   The order.   When reviewing a harassment

prevention order pursuant to 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.'"

A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting from

G. L. c. 258E, § 1, inserted by St. 2010, c. 23.     "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
                                                                   7


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

A.T. v. C.R., supra (quotation omitted).   See G. L. c. 258E,

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

Morhy, 467 Mass. 58, 60 (2014); Van Liew v. Stansfield, 474

Mass. 31, 36-38 (2016); V.J. v. N.J., 91 Mass. App. Ct. 22, 25

(2017).

     The record reflects an abundance of acts of harassment that

meet the statutory criteria.   Because there are multiple acts,

many of which could support the extension of the order, we group

the conduct into three categories for ease of our discussion.

For the purpose of our analysis, we consider each of the

following as an act within the meaning of the statute:     (1) text

messages telling the plaintiff that she "should be scared,"

calling her a "bitch," and telling her he knew how to find her

at yoga, followed by his appearance at the yoga studio;6 (2) text

messages telling the plaintiff that she would be "fucked" and/or

blackmailed, referring to her as a "slut" and a "whore," telling

the plaintiff not to "cross [him]," that "[t]his will end badly

for [her]," and that she would "pay the consequences," followed

by confronting her at Starbucks; and (3) following her to her

place of work, which she was not free to leave, after being

     6
       Here, for example, the text message from the defendant
telling the plaintiff that she should be scared because he knew
where she goes to yoga, and appearing at the yoga studio (in
light of the text), constitute separate acts, but we analyze
them in tandem.
                                                                     8


repeatedly told to leave her alone, and after promising to leave

her alone.

     The record supports the judge's conclusion that the

plaintiff was scared and intimidated by these acts and that the

defendant maliciously intended to cause and, in fact, caused

intimidation and a fear of physical harm.   The plaintiff

explicitly stated in her affidavit that she was fearful, and the

judge credited her statement.7   Fear is judged by a subjective,

not an objective, standard under the statute.   See A.T. v. C.R.,

88 Mass. App. Ct. at 537.8   The judge considered the surrounding

circumstances in crediting her affidavit.   The judge also could

consider the defendant's persistence despite repeated

admonitions to stop, as well as his disregard for the directives

of law enforcement, as independent bases to find that the

plaintiff was actually intimidated and feared for her physical

safety.

     With respect to the defendant's subjective intent, his

angry texts and "repeated and escalating harassment of the

plaintiff . . . would reasonably support an inference that he

intended to cause the plaintiff fear and intimidation."     Id. at

     7
       The judge was permitted to credit the plaintiff's
affidavit and further corroboration was not required. See
Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 148 & n.10 (2006).
     8
       "[T]he question is only whether [the plaintiff] in fact
was placed in fear, not whether the fear was reasonable."
Gassman v. Reason, 90 Mass. App. Ct. 1, 9 (2016).
                                                                     9


538.   The plaintiff told the defendant repeatedly to leave her

alone, but he did not.    Admittedly jealous, he ignored the

admonitions of the police.   The plaintiff went to considerable

lengths to avoid seeing the defendant, but he followed her to a

new yoga class, to a coffee shop, and even to the private home

where she cared for small children.    This behavior was combined

with name-calling ("bitch," "whore," and "slut"), see V.J. v.

N.J., 91 Mass. App. Ct. at 26, threats to blackmail her, threats

to "ruin" her, threats that this would "end badly" for her, and

the very direct statement in his July, 2013, text message that

she "should be scared."    The evidence is sufficient to support a

finding with respect to each of the three acts that the

defendant acted out of cruelty, hostility, or revenge, that the

acts were directed at the plaintiff, and that the defendant

intended that "each" act carried with it the "intent to cause

fear, intimidation, abuse, or property damage."    Seney v. Morhy,

467 Mass. at 63 (emphasis supplied; quotation omitted).

       Moreover, the conduct was sustained over a fifteen-month

period, and should be viewed in that context.    "In the

determination 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.'"   A.T. v. C.R., 88 Mass. App. Ct.

at 535, quoting from O'Brien v. Borowski, 461 Mass. at 426 n.8.
                                                                     10


By the time the defendant appeared at the private home where the

plaintiff worked, he had repeatedly texted the plaintiff and had

followed her twice.   Knowing that she had twice left when he had

followed her, he picked a location that she would be unable to

leave, because of her obligations to the children.     Viewing the

three acts in the context of what had come before, "it was

reasonable for the judge to infer the existence of the . . .

defendant's malicious intent."    V.J. v. N.J., 91 Mass. App. Ct.

at 28.

    For the same reasons, the text messages were not

constitutionally protected speech, as the defendant contends,

but "true threats."   O'Brien v. Borowski, supra at 425.     A "true

threat" is a statement made with the purpose of communicating "a

serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals."

Id. at 423 (quotation omitted).     A true threat need not

"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.'"   Id. at 424, quoting from Commonwealth

v. Chou, 433 Mass. 229, 235 (2001).     Here the threats were

explicit.   The defendant's first threat, that the plaintiff

"should be scared," was explicit.     His conduct in showing up at
                                                                    11


the yoga studio reinforced and magnified the potential danger

posed by the initial text messages, and placed the subsequent

sexualized text messages warning her that this would "end badly"

for her in a particularized context.     See A.T. v. C.R., supra;

V.J. v. N.J., supra.

     In these circumstances, the plaintiff was entitled to

"protect[ion] . . . from the fear of violence and from the

disruption that fear engenders, in addition to protect[ion]

. . . from the possibility that threatened violence will occur."

O'Brien, supra at 423, quoting from Virginia v. Black, 538 U.S.

343, 359-360 (2003).

     2.   Firearms.    The order to surrender the firearms stands

on a different footing.     Unlike abuse protection orders under

G. L. c. 209A, § 3B, G. L. c. 258E does not provide for the

surrender of firearms upon the issuance of a harassment

prevention order.     See G. L. c. 258E, § 3(a).9   We consider this



     9
       Section 3(a) of c. 258E, inserted by St. 2010, c. 23,
provides:

     "A person suffering from harassment may file a complaint in
     the appropriate court requesting protection from such
     harassment. A person may petition the court under this
     chapter for an order that the defendant:
     "(i) refrain from abusing or harassing the plaintiff,
     whether the defendant is an adult or minor;
     "(ii) refrain from contacting the plaintiff, unless
     authorized by the court, whether the defendant is an adult
     or minor;
                                                                   12


difference between the statutes to be dispositive for the

following reasons.

    "In interpreting the meaning of a statute, we look first to

the plain statutory language.   Where the language of a statute

is clear and unambiguous, it is conclusive as to legislative

intent . . . and the courts enforce the statute according to its

plain wording . . . so long as its application would not lead to

an absurd result."   Worcester v. College Hill Properties, LLC,

465 Mass. 134, 138 (2013) (quotation omitted).   General Laws

c. 258E, § 3(a), authorizes four separate forms of relief.      The

statute limits the relief permitted under an order to those four

categories.   Unlike G. L. c. 209A, c. 258E omits the all-

important phrase "including, but not limited to" from the

introductory sentence of § 3(a).   Contrast G. L. c. 209A, § 3,

as appearing in St. 1990, c. 403, § 3 ("A person suffering from

abuse from an adult or minor family or household member may file

a complaint in the court requesting protection from such abuse,

including, but not limited to, the following orders . . .").

    "(iii) remain away from the plaintiff's household or
    workplace, whether the defendant is an adult or minor; and
    "(iv) pay the plaintiff monetary compensation for the
    losses suffered as a direct result of the harassment;
    provided, however, that compensatory damages shall include,
    but shall not be limited to, loss of earnings, out-of-
    pocket losses for injuries sustained or property damaged,
    cost of replacement of locks, medical expenses, cost for
    obtaining an unlisted phone number and reasonable
    attorney's fees."
                                                                    13


    Nor does G. L. c. 258E contain a separate section

authorizing the suspension or surrender of a license to carry

firearms, a firearms identification card, and the surrender of

firearms themselves.   Contrast G. L. c. 209A, § 3B.   The

Legislature took great care in G. L. c. 209A, § 3B, to mandate

the surrender of firearms, a firearm license, or a firearm

identification card in certain circumstances.   The Legislature

also provided procedural protections to those whose firearm

license, firearm identification card, or firearms had been

surrendered, and considered important questions of public safety

by designating those to whom the firearm should be surrendered.

The omission of a similar provision, with similar protections,

from G. L. c. 258E constitutes a clear expression of legislative

intent.   "The omission of particular language from a statute is

deemed deliberate where the Legislature included such omitted

language in related or similar statutes."   Fernandes v.

Attleboro Hous. Authy., 470 Mass. 117, 129 (2014).     See Thomas

v. Department of State Police, 61 Mass. App. Ct. 747, 754

(2004).   See also Commonwealth v. Gagnon, 439 Mass. 826, 833

(2003), quoting from 2A Singer, Sutherland Statutory

Construction § 46.06, at 194 (6th ed. rev. 2000) ("[W]here the

legislature has carefully employed a term in one place and

excluded it in another, it should not be implied where

excluded").
                                                                  14


    The plaintiff contends that an order compelling the

surrender of firearms is permitted under G. L. c. 258E, § 3(g),

which provides that "[a]n action commenced under this chapter

shall not preclude any other civil or criminal remedies."    To

the extent that this language creates an ambiguity in the

statute, "we look to external sources, including the legislative

history of the statute, its development, its progression through

the Legislature, prior legislation on the same subject, and the

history of the times."   Worcester v. College Hill Properties,

LLC, 465 Mass. at 139, quoting from 81 Spooner Rd. LLC v.

Brookline, 452 Mass. 109, 115 (2008).

    The legislative history of G. L. c. 258E forecloses the

relief the plaintiff seeks in a c. 258E proceeding.   Language

nearly identical to G. L. c. 209A, § 3B, was included in one of

the initial versions of the bill which led to c. 258E, "but this

element was removed from later versions and from the bill

ultimately enacted.   Compare 2009 Senate Doc. No. 1611, An Act

relative to sexual assault and stalking restraining orders

(filed Jan. 14, 2009), with 2009 Senate Doc. No. 2185, An Act to

prevent harassment at § 1 (filed Oct. 26, 2009); 2009 Senate

Doc. No. 2212, An Act relative to harassment prevention orders

at § 1 (filed Nov. 17, 2009); and c. 258E, § 1."   O'Brien v.

Borowski, 461 Mass. at 427-428.   "This provision was stricken by

the Legislature amidst general concerns related to Second
                                                                   15


Amendment rights, and more specific concerns that individuals

could use the statute as a tool of revenge against law

enforcement officials whose profession requires them to carry

firearms."   Flynn-Poppey & Abhar, Chapter 258E Harassment

Prevention Orders -- Balancing the Rights of Victims and

Defendants, 94 Mass. L. Rev. 23, 26 (2011).10   We do not consider

the language of G. L. c. 258E, § 3(g), to be so broad as to

encompass a remedy that the Legislature expressly rejected.      See

Fernandes v. Attleboro Hous. Authy., 470 Mass. at 129.     The

intent of the Legislature is clear.

     It is also important to note, however, that the scope of

relief outlined in G. L. c. 258E, § 3(g), together with G. L.

c. 258E, § 4, makes clear that the criminal enforcement

provisions of c. 258E are not exclusive, and that pursuit of

other criminal charges is permitted.   The language in § 3(g)

also plainly permits an applicant for a harassment prevention

order to pursue other civil claims.    Finally, because § 3(a) &

(g) apply only to actions commenced "under this chapter," ibid.,

they do not curtail the discretion of an issuing authority to

revoke a firearms license "for cause at the will of the

authority issuing the same," Godfrey v. Chief of Police of

Wellesley, 35 Mass. App. Ct. 42, 43 (1993), quoting from G. L.

     10
       General Laws c. 258E also departed from G. L. c. 209A in
other respects as well. See Flynn-Poppey & Abhar, supra at 26.
                                                                    16


c. 140, § 131, as appearing in St. 1986, c. 481, § 2,11 or to

file a petition to revoke a firearm identification card, see

G. L. c. 140, § 129B(1 1/2)(a).

     Conclusion.     The portion of the order entered November 7,

2014,     requiring the defendant to surrender his firearms is

vacated.    The order is otherwise affirmed.

                                     So ordered.




     11
       The record reflects that the defendant was told by the
police that he could lose his license to carry if he persisted
in contacting the plaintiff.
