Commonwealth v. Valentin

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16-P-245 Appeals Court

COMMONWEALTH vs. WALTON VALENTIN.

No. 16-P-245.

Essex. February 28, 2017. - May 12, 2017.

Present: Vuono, Carhart, & Kinder, JJ.1

Assault by Means of a Dangerous Weapon. Assault and Battery.
Stalking. Protective Order. Abuse Prevention. Evidence,
Hearsay, Unavailable witness. Witness, Unavailability,
Self-incrimination, Immunity. Constitutional Law,
Confrontation of witnesses, Self-incrimination. Practice,
Criminal, Hearsay, Confrontation of witnesses, Required
finding, Instructions to jury, Reasonable doubt, Question
by jury. Reasonable Doubt.

Indictments found and returned in the Superior Court
Department on January 2, 2014.

The cases were tried before Richard E. Welch, III, J.

Robert L. Sheketoff for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.

1
Justice Carhart participated in the deliberation on this
case prior to his retirement.
 2

KINDER, J. Following a jury trial in Superior Court, the

defendant, Walton Valentin, was convicted of multiple crimes of

violence against his former girl friend, whom we shall call

Jane.2 The jury found him guilty of entering a building with

intent to commit a felony, G. L. c. 266, § 17; assault by means

of a dangerous weapon, G. L. c. 265, § 15B; aggravated assault

and battery in violation of a restraining order, G. L. c. 265,

§ 15A(c)(iii)3; assault and battery, G. L. c. 265, § 13A;

stalking in violation of a restraining order, G. L. c. 265,

§ 43(b); and violations of a restraining order (twelve counts),

G. L. c. 209A, § 7.4 On appeal, the defendant claims (1) the

judge erred in admitting the victim's hearsay statements

pursuant to the doctrine of forfeiture of the right of

confrontation by wrongdoing; (2) the evidence was insufficient

on the charges of stalking, aggravated assault and battery, and

entering a building with intent to commit a felony; (3) the

judge's instruction on reasonable doubt was error; and (4) the

2
A pseudonym.
3
The indictment cites G. L. c. 265, § 13(b)(iii), but the
language of the indictment charges a violation of G. L. c. 265,
§ 15A(c)(iii). No claim is raised regarding this variance.
4
The defendant was acquitted of charges of assault by means
of a dangerous weapon and kidnapping alleged to have occurred on
November 9, 2013.
 3

judge abused his discretion in responding to a question from the

jury. We affirm.

Background. 1. The break-in and assaults. We summarize

the evidence the jury could have found, viewing it in the light

most favorable to the Commonwealth. Commonwealth v. Latimore,

378 Mass. 671, 676-677 (1979). On June 24, 2013, Jane obtained

a restraining order prohibiting the defendant from contacting or

abusing her. The order was in effect through January 7, 2014.

In October 2013, Jane began staying at the home of her co-

worker and friend, Susan5, in Lawrence. On October 28, 2013,

Jane and Susan attended a party in Boston. Following the party,

in the early morning hours of October 29, they went to the Chau

Chow City restaurant in Boston. At approximately 4:00 A.M, the

defendant appeared at the restaurant uninvited and confronted

Jane.

After leaving Chau Chow City at approximately 6:00 A.M.,

Jane and Susan went to a Boston police department (BPD) station

to report the contact with the defendant. Jane told the police

that the defendant slapped her three times at the restaurant.6

She further reported that the defendant had "keyed" her car, a

5
A pseudonym.
6
This evidence was admitted through the testimony of a
Boston police officer, over objection, pursuant to the doctrine
of forfeiture by wrongdoing.
 4

statement corroborated, in part, by the officer's observations

of marks on the exterior of the vehicle. While they were at the

BPD, the defendant called Susan twice looking for Jane.

Jane and Susan then drove to the Lawrence police department

(LPD) where Jane again reported what had occurred at Chau Chow

City. She explained that the defendant followed them from

Boston to Lawrence. She further reported the telephone calls

they had received from the defendant. The calls from the

defendant continued while they were at the LPD.

Jane and Susan left the LPD at approximately 7:30 A.M.,

returned to Susan's apartment, and went to sleep in the same

bedroom. At approximately 9:00 A.M. they were awakened by the

defendant emerging from the bedroom closet. A struggle ensued.

Susan escaped and screamed to the apartment manager that there

was someone in the apartment. Susan pointed to the defendant as

he ran through the parking lot.7 Meanwhile, Jane called 911 and

reported "I was here sleeping with a girlfriend, at my

girlfriend's house, with my girlfriend, and he came into the

7
Surveillance video played for the jury shows the defendant
entering the building at 4:46 A.M. Susan is seen descending the
stairs at 9:13 A.M., speaking with the property manager and
pointing out something in the parking lot. Another camera
showed the defendant leaving by way of a rear stairwell at 9:10
A.M.
 5

house, we don't know how, with a knife, and attacked both of

us."8

Police responded within minutes. They observed that the

door to the apartment was damaged and the interior of the

apartment was in disarray. Broken lamps and pieces of furniture

were strewn about, chairs were overturned, and a glass table-top

was shattered. There was swelling on the arms and necks of both

women. Susan appeared disheveled. She was shaking and crying.

She told officers that the defendant appeared at the foot of the

bed armed with a knife and that she and Jane had screamed as the

defendant made slashing and stabbing motions toward them. Susan

also reported that the defendant smashed her head against the

wall. Susan handed the officers a large knife she retrieved

from a closet near the entry to the apartment, which she claimed

the defendant had used.

Crying hysterically, Jane told the officers that she

awakened to see the defendant standing at the foot of the bed

with a knife. After Jane calmed down, she explained that the

defendant had swung the knife in her direction.9,10 She, too,

8
The 911 call was admitted under the excited utterance
exception to the rule against hearsay. A redacted tape
recording of the call was played for the jury. Because the
recorded 911 call was in Spanish, a written English translation
was provided to the jury as the tape was played.
9
Jane's initial statements were admitted as excited
utterances. The statements regarding the defendant swinging the
 6

reported that the defendant grabbed her and slammed her head

against the wall. She said the defendant fled the apartment

when Susan began screaming for help. Police efforts to locate

the defendant that day were unsuccessful.

2. The alleged abduction. On November 9, 2013, police

responded to the Parkview Inn in Salem, New Hampshire. They

found Jane in one of the rooms. She was crying and had

lacerations on her head. She reported that the defendant

abducted her at gunpoint as she entered her vehicle in Lawrence.

They drove to the Parkview Inn where the defendant directed Jane

to pay for a room while he waited in the vehicle. She told the

officers that the defendant struck her multiple times with the

firearm while they were in the room. Eventually she escaped,

and the defendant fled in her vehicle. The next day the vehicle

was found parked on the side of the road in Andover,

Massachusetts. Five days later, the defendant was arrested in

the Bronx, New York.11

Discussion. 1. Forfeiture by wrongdoing. Under the

doctrine of forfeiture by wrongdoing,

knife at her and slamming her against the wall were admitted
pursuant to the doctrine of forfeiture by wrongdoing.
10
Neither Jane nor Susan suffered any knife wounds.
11
The defendant was acquitted of the kidnapping and assault
by means of a dangerous weapon charges, but convicted of
violating the restraining order on November 9, 2013.
 7

"a defendant forfeits, by virtue of wrongdoing, the right
to object to the admission of an unavailable witness's out-
of-court statements on both confrontation and hearsay
grounds on findings that (1) the witness is unavailable;
(2) the defendant was involved in, or responsible for,
procuring the unavailability of the witness; and (3) the
defendant acted with the intent to procure the witness's
unavailability."

Commonwealth v. Edwards, 444 Mass. 526, 540 (2005). See Mass.

G. Evid. § 804(b)(6) (2017). "A defendant's involvement in

procuring a witness's unavailability need not consist of a

criminal act, and may include a defendant's collusion with a

witness to ensure that the witness will not be heard at trial."

Edwards, supra.

Pursuant to this doctrine, the Commonwealth sought a

ruling, in limine, to admit Jane's hearsay statements as

substantive evidence at trial. The Commonwealth asserted that

the defendant, while incarcerated awaiting trial, had numerous

telephone conversations with Jane in violation of the

restraining order in which he "pressured and threatened [Jane]

about her participation in the case and urged and counseled

[her] about obtaining an attorney so she would not have to

testify." After a pretrial evidentiary hearing, which included

a review of the tape-recorded telephone calls,12 the judge made

comprehensive findings of fact. The judge concluded that (1)

12
The telephone calls were recorded as a matter of jail
policy.
 8

Jane had a valid privilege under the Fifth Amendment to the

United States Constitution not to incriminate herself and was

therefore unavailable as a witness; (2) the defendant, in

numerous telephone conversations with Jane, suggested to her the

idea of not testifying by threats, persuasion, and pressure; and

(3) he did so with the intent to procure her unavailability.

Based on these findings, the judge allowed the motion in limine

as to Jane's statements that he found reliable.

On appeal, the defendant argues it was error to admit

Jane's hearsay statements. According to the defendant,

collusion to assert a valid Fifth Amendment privilege does not

meet the Edwards test if, as in this case, the defendant wanted

the witness to testify and the Commonwealth could have immunized

her.13 We are not persuaded. The defendant cites no authority

in support of this argument, and we have found none.

Grants of immunity are discretionary at the request of the

Commonwealth. Commonwealth v. Figueroa, 451 Mass. 566, 578

(2008) ("Subject to the approval of the court, it is the purview

of the prosecutor to seek a grant of immunity . . ."). The

question is not whether Jane had a right to refuse to testify,

but whether the defendant intentionally procured her

13
By the time of trial, the defendant, through counsel, had
changed his position regarding Jane's testimony, apparently
assuming that her testimony would now be helpful.
 9

unavailability as a witness. See Commonwealth v. Szerlong, 457

Mass. 858, 864-865 (2010), cert. denied, 562 U.S. 1230 (2011)

(forfeiture by wrongdoing properly applied where defendant

married witness with intent to have her exercise spousal

privilege). Here, the evidence established that the defendant

had multiple conversations with Jane regarding her testimony,

all in violation of the restraining order. He repeatedly

suggested that she tell her lawyer about the Fifth Amendment, so

that she would not have to testify. The judge found that "he

did so by way of threats, persuasion, and pressure." These

findings were supported by a preponderance of the evidence. See

Edwards, supra at 542-543 (application of forfeiture by

wrongdoing doctrine is a preliminary question of fact subject to

proof by a preponderance of the evidence). Accordingly, the

doctrine of forfeiture by wrongdoing was properly applied.

Due process requires that hearsay statements admitted under

the doctrine of forfeiture by wrongdoing be reliable. Szerlong,

supra at 866. Based on the pretrial testimony of the Lawrence

police officers regarding the 911 call from Jane, her physical

and emotional state upon their arrival, and the condition of the

apartment, the judge found that Jane's hearsay statements

regarding the break-in and assaults on October 29 were
 10

sufficiently reliable.14 This independent corroborating evidence

adequately supported the judge's finding.15

As an alternative argument, the defendant contends that

this is the exceptional case in which the judge should have, sua

sponte, granted "equitable immunity" to Jane, so that the jury

could hear her testimony. According to the defendant, the judge

must have known that Jane would make "significant retractions"

if she testified at trial16 and proceeding to trial without those

retractions would put the defendant at an unfair disadvantage.

Put another way, the defendant suggests that without Jane's

testimony "the [trial] process was short circuited and [his]

constitutional rights were violated." We disagree.

The Supreme Judicial Court has explained:

14
The judge did not admit all of Jane's hearsay statements.
For example, Jane reported that the defendant told her he would
send armed men to her mother's home. The judge found that
statement was not sufficiently reliable.
15
In light of the defendant's acquittal on the kidnapping
and assault charges on November 9, 2013, we need not address the
reliability of Jane's statements regarding those allegations.
16
The judge conducted an in camera hearing with Jane and
her counsel pursuant to Commonwealth v. Martin, 423 Mass. 496
(1996), to determine whether the invocation of her Fifth
Amendment privilege was valid. Neither defense counsel nor the
prosecutor was present. The transcript of that hearing was
sealed, but made available for our review. At argument, counsel
acknowledged that the transcript of the hearing was included in
the public record on appeal. Neither party sought an order of
impoundment.
 11

"While a prospective defense witness's assertion of [her]
right under the Fifth Amendment . . . could affect a
defendant's ability to present his defense most
effectively, the compulsory process provisions of the
Federal and State Constitutions do not mandate a judicial
grant of immunity to such a witness as a matter of course.
See Commonwealth v. Curtis, 388 Mass. 637, 646 (1983),
S.C., 417 Mass. 619 (1994). Although we have left open the
possibility that 'unique circumstances' could require a
judge to grant a limited form of immunity to a defense
witness, see id., we have not been presented yet with such
a scenario."

Commonwealth v. Brewer, 472 Mass. 307, 312 (2015), quoting from

Commonwealth v. Vacher, 469 Mass. 425, 438-439 (2014). A unique

circumstance might arise "where there exists prosecutorial

misconduct arising from the government's deliberate intent to

distort the fact-finding process." Brewer, supra, quoting from

Vacher, supra (quotations omitted). Here, the defendant has not

argued, much less shown, that the Commonwealth's decision not to

immunize Jane was improperly motivated. Indeed, in light of the

defendant's efforts to corrupt the trial process by dissuading

Jane from testifying against him, there was good reason for the

Commonwealth to be skeptical of her testimony.

Further, it is not clear that Jane's testimony would have

been material to the defense. The transcript of the hearing

held pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996),

shows Jane made a single false statement regarding the events of
 12

October 29.17 Jane stated that she falsely reported that the

defendant had broken the door. She did not retract her

statement that the defendant suddenly appeared at her bedside

and assaulted her at knifepoint. To be sure, had Jane

testified, the false statement would have undermined her

credibility, but judicial immunity is not available when the

proffered testimony relates only to the credibility of the

government's witnesses. Brewer, supra at 314. Therefore, on

the record before us, the judge properly declined to grant

"equitable immunity" to Jane.

2. Sufficiency of evidence: stalking in violation of an

abuse prevention order. "To establish the aggravated form of

stalking at issue in this case, § 43 (b) (stalking in violation

of court order), the Commonwealth must prove both a pattern of

conduct constituting stalking under § 43 (a) and that the

conduct violated (in this case) a 209A order that was in

effect." Edge v. Commonwealth, 451 Mass. 74, 76 (2011).

General Laws c. 265, § 43(a), as appearing in St. 2010, c. 92,

§ 9, provides that "[w]hoever (1) willfully and maliciously

engages in a knowing pattern of conduct or series of acts over a

period of time directed at a specific person which seriously

17
There was a second false statement regarding the alleged
kidnapping. Because the defendant was acquitted of that charge,
we consider it only as it may have impacted Jane's credibility
regarding the October 29 incident.
 13

alarms or annoys that person and would cause a reasonable person

to suffer substantial emotional distress, and (2) makes a threat

with the intent to place the person in imminent fear of death or

bodily injury is guilty of the crime of stalking . . . ." "A

pattern or a series in the context of this statute . . .

involve[s] more than two incidents." Commonwealth v.

Kwiatkowski, 418 Mass. 543, 478 (1994). Here, the judge

instructed the jury that to meet its burden of proof on the

stalking charge, the Commonwealth had to prove the defendant

committed three acts on October 29, 2013: (1) slapping Jane at

the Chao Chow City restaurant; (2) calling her at the BPD

station; and (3) confronting her at Susan's apartment.

The defendant argues that the Commonwealth failed to prove

a "series of acts over a period of time" because each of the

alleged acts, even if proved, occurred on the same day. We are

not aware of any authority that supports the defendant's

contention that, in this context, "over a period of time" means

over a period of time greater than one day. The statute does

not define "over a period of time," and our cases have not

further interpreted these words. Consequently, we "give them

their usual and accepted meanings, as long as these meanings are

consistent with the statutory purpose." Commonwealth v. Zone

Book, Inc., 372 Mass. 366, 369 (1977). "We derive the words'

usual and accepted meanings from sources presumably known to the
 14

statute's enactors, such as their use in other legal contexts

and dictionary definitions." Ibid. The word "over" is defined

as "from one point to another across an intervening space."

Webster's Third New International Dictionary 1605 (2002).

"Period" means "any extent of time." Id. at 1680. "Time" is

defined as a "measurable duration." Id. at 2394. Thus, the

phrase "over a period of time" simply denotes the passage of

time. We see no reason to require a particular interval of time

between acts. As long as the acts are separate, distinct, and

separated by some interval, they occur "over a period of time"

within the meaning of the statute.

Here, there was evidence that the defendant arrived at Chao

Chow City, confronted Jane and slapped her at approximately 4:00

A.M.; he called her repeatedly when she was at the BPD around

6:00 A.M., and he emerged from the bedroom closet wielding a

knife around 9:00 A.M. Examining this evidence in the light

most favorable to the prosecution, see Latimore, 378 Mass. at

677, the jury could have found beyond a reasonable doubt (1)

that the defendant engaged in three separate acts over a period

of time which alarmed and annoyed Jane, and would have caused a

reasonable person to suffer substantial emotional distress, and

(2) that the defendant threatened Jane with the intent to place

her in imminent fear of death or bodily injury.
 15

The defendant was charged with an aggravated form of

stalking because the acts were alleged to have been committed in

violation of an abuse prevention order issued under G. L.

c. 209A, §§ 3 and 4. A violation of an abuse prevention order

consists of (1) the existence of the order at the time in

question, (2) the defendant's violation of the order, and (3)

the defendant's knowledge of the order. Commonwealth v. Silva,

431 Mass. 401, 403 (2000).

The defendant claims that the evidence of his knowledge of

the order was insufficient where the order indicates it was

served before it was issued. The order shows that it was issued

on June 27, 2013, at 3:40 P.M. However, it also indicates in

two different places that it was served in hand by a court

officer on June 24, 2013, at 3:50 P.M., three days earlier, at

the Lawrence District Court. Of course, a restraining order

cannot be served before it exists. However, given the times on

the order for issuance and service (a ten-minute interval), and

the two separate handwritten entries on the order indicating

service by a court officer on June 24, the jury could have

reasonably inferred that the date of issuance on the order was a

typographical error, and that the order had been issued and

served on the defendant at the Lawrence District Court on June

24, 2013.
 16

Further, there was ample evidence that the defendant knew

that he was not permitted to contact Jane. The jury heard that

she had obtained two prior restraining orders against the

defendant, the most recent of which expired only one month

before the June, 2013, order was issued. The jury also heard

evidence that the defendant engineered a ruse, so that he could

see Jane in violation of the order while he was incarcerated.

From this evidence, the jury could have found that the defendant

knew he was prohibited from contacting Jane. For all of these

reasons, we conclude that the evidence was sufficient to support

the jury's guilty finding on the charge of stalking in violation

of a restraining order.18,19

3. Reasonable doubt instruction. Since January of 2015,

the preferred jury instruction on reasonable doubt in

Massachusetts includes the following language:

18
The defendant advances the same argument regarding the
dates on the restraining order to challenge the sufficiency of
the evidence on his conviction of aggravated assault and
battery. We reject the argument for the reasons set forth
above.
19
The indictment for breaking and entering with intent to
commit a felony was placed on file with the defendant's consent.
We do not consider appeals from convictions placed on file
absent exceptional circumstances, "such as where the legal error
affects all the charges." Commonwealth v. Prashaw, 57 Mass.
App. Ct. 19, 27 (2003). The defendant's argument that his
motion for required finding should have been allowed because the
indictment did not allege that the entry occurred in the
nighttime, does not affect all the charges. Accordingly, we do
not address this claimed error.
 17

"A charge is proved beyond a reasonable doubt if, after you
have compared and considered all of the evidence, you have
in your minds an abiding conviction, to a moral certainty,
that the charge is true. When we refer to moral certainty,
we mean the highest degree of certainty possible in matters
relating to human affairs -- based solely on the evidence
that has been put before you in this case."

Commonwealth v. Russell, 470 Mass. 464, 477 (2015). Here,

without the benefit of the Supreme Judicial Court's guidance in

Russell, the judge used different language, instructing the jury

that "proof beyond a reasonable doubt is proof that leaves you

firmly convinced of the defendant's guilt. In other words, you

have an abiding conviction that the charge is true." The

defendant argues that the judge's failure to include the words

"moral certainty" in his instruction was constitutional error.

We disagree.

The judge's reasonable doubt instruction was derived from

Federal Judicial Center Pattern Criminal Jury Instruction 21

(1998), the same instruction considered by the Supreme Judicial

Court in Russell.20 There, the Supreme Judicial Court concluded

20
In relevant part, instruction 21 provides:

"Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant's guilt. There are very
few things in this world that we know with absolute
certainty, and in criminal cases the law does not require
proof that overcomes every possible doubt. If, based on
your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime
charged, you must find him guilty. If on the other hand,
you think there is a real possibility that he is not
 18

that "the instruction met the minimum requirements of due

process under the Fourteenth Amendment and art. 12." Russell,

supra at 474. However, because of concern about potential

misinterpretation of the term "moral certainty,"21 the Supreme

Judicial Court exercised its supervisory power and provided a

uniform instruction on reasonable doubt which further defined

that term. The instruction is to be used by all Massachusetts

trial judges from that point forward. Id. at 477. Because

Russell was decided after the trial in this case, the judge did

not have the benefit of that uniform instruction.

We view the charge in its entirety to determine its

adequacy. Commonwealth v. Sellon, 380 Mass. 220, 231-232

(1980). The jury were instructed that the defendant was

presumed innocent and that the Commonwealth bore the burden of

proof. They were also instructed that "it is not enough for the

Commonwealth to establish a probability, even a strong

probability, that the defendant is more likely to be guilty than

not guilty." Instead, the jury were instructed that they must

be "firmly convinced and have an abiding conviction that the

guilty, you must give him the benefit of the doubt and find
him not guilty."
21
The "moral certainty" language comes from Commonwealth v.
Webster, 59 Mass. 295, 313 (1850). The Webster charge was the
preferred instruction on reasonable doubt for 150 years before
Russell.
 19

defendant is guilty of the crime charged." These instructions,

taken as a whole, adequately "impressed upon the factfinder the

need to reach a subjective state of near certitude of the guilt

of the accused." Commonwealth v. Pinckney, 419 Mass. 341, 344

(1995). We discern no error.

4. The jury question. In connection with the stalking

charge, the jury asked "is it sufficient that he showed up at

Chao Chow or necessary we are convinced of slapping." The

defendant claims that the judge's answer to that question, set

forth in the margin,22 permitted conviction on a theory not

supported by the evidence. Again, we disagree.

22
The judge responded to the jury as follows:

"My answer to you is that it's not sufficient if the
Commonwealth simply shows that he showed up at the Chao
Chow restaurant. But the Commonwealth does not necessarily
have to prove to you beyond a reasonable doubt that there
was an incident of slapping or three slaps at the Chao Chow
restaurant. Let me explain. The Commonwealth does have to
prove to you that there was some incident at the Chao Chow
restaurant that would cause a reasonable person to suffer
substantial emotional distress; and that this act at the
Chao Chow restaurant did indeed cause [Jane] to become
seriously alarmed or annoyed; and that the defendant took
these actions at the Chao Chow restaurant willfully and
maliciously . . . .

"What the Commonwealth would have to prove is even if
the Commonwealth couldn't prove an actual slapping, that
the defendant showed up uninvited at the Chao Chow
restaurant; that his presence was not consented to by the
people at the Chao Chow restaurant; that he shows up
intentionally knowing the people are there; that he doesn't
show up just accidentally and, oh, jeez, there's [Jane];
instead, he intentionally knows that she's there at the
 20

"The proper response to a jury question must remain within

the discretion of the trial judge, who has observed the evidence

and the jury firsthand and can tailor supplemental instructions

accordingly." Commonwealth v. Bell, 455 Mass. 408, 420 (2009),

quoting from Commonwealth v. Robinson, 449 Mass. 1, 7-8 (2007).

There was evidence that after attempting to reach Jane by

telephone, the defendant appeared at the restaurant uninvited

and angrily confronted her in violation of the restraining

order. From this evidence, the jury could have found, even

without the alleged slapping, that the defendant acted willfully

and maliciously in a way that alarmed and annoyed Jane, causing

her substantial emotional distress. Accordingly, we discern no

abuse of discretion in the judge's answer and supplemental

instruction.

Judgments affirmed.

time; that he knows that he is not supposed to have any
contact with or be within a hundred yards of [Jane]; and
that he does some action there at the Chao Chow restaurant
willingly and maliciously that causes her to become
seriously alarmed or annoyed and would cause a reasonable
person to suffer substantial emotional distress."