NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1184
A.L.
vs.
M.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the issuance of an abuse
prevention order pursuant to G. L. c. 209A, § 3 (209A order).
He contends that there was insufficient evidence to support the
issuance of the order, and that justice was not done when, after
the judge issued the 209A order, the hearing was recessed
although the defendant said that he wanted to present evidence
of the plaintiff's abuse of him. We affirm.
Background. We focus on the evidence at the October 19,
2022 hearing after notice, at which the plaintiff and the
defendant testified.
The plaintiff testified that she and the defendant had been
in a five and one-half year dating relationship that ended three
years previously. Since then, they had maintained minimal
contact, generally consisting of the defendant's wanting to see
the plaintiff and to remain friends. Sometime before September
15, 2022, the plaintiff sent the defendant a text message asking
him to stop contacting her and telling him that she would not
respond to any more of his messages. On September 15 and 16,
the plaintiff received text messages that, at the judge's
request, she read into the record.1 On September 15, she
received a text message from the defendant sent from his
personal phone number asking if the plaintiff "ever want[ed] to
talk." The plaintiff did not respond.
On September 16, 2022, the plaintiff received a text
message from a different phone number that she described as a
"bot" that "can't be traced back to him right now." That
message stated, "You know, it's been a long time, my memory's a
bit hazy but I remember there was some stuff that I had that you
didn't want public. I can't remember what it was. I was
thinking about making some posts, but maybe we should
communicate before I accidentally share something that you may
not have wanted others to see. Let me know." The plaintiff
received a separate text message stating, "[A]ll right, your
choice. I got plenty I can use to make my own money back. If
you want me to be the bad guy, I'll be the ba[d] guy. Shrug
1 See Mass. G. Evid. § 1119(c) (2023) (describing methods for
presentation of digital evidence and preservation for appellate
review).
2
emoji. You have until Sunday or a lot more people are going to
know about the mole on your left arm pit than me." The
plaintiff testified that during their relationship the defendant
had raped her. In the affidavit in support of her application
for the 209A order, she averred that she was "concerned for
[her] ability to remain safe without [a 209A] order."
The defendant testified that he did contact the plaintiff
multiple times by text message because he "did not know why she
didn't want to talk" and apologized if "she felt raped and if
she regrets having sex with me or agreeing to things we did."
As to the September 16 text messages, the defendant testified,
"I am not here to defend my actions taken on September 16th. I
think they were, um, very inappropriate. I went, you know, too
far and that same day, I clarified to the plaintiff that I did
not actually have any sexual materials because I did not want
her to continue to be scared." The defendant testified that
after he learned from a mutual friend on September 15th that the
plaintiff had "perpetrated the abuse she put me through," he
"reacted to it in the worst way possible, but it was a one event
that I do not intend repeating."
The judge issued a one-year 209A order. The defendant
appeals from its issuance.
Discussion. 1. Sufficiency of the evidence. The
defendant argues that the issuance of the 209A order was "[a]
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completely invalid determination that I am a danger to [the
plaintiff]," and was "based almost entirely on lies."
To support issuance of the 209A order, the plaintiff bore
the burden to prove by a preponderance of the evidence that she
was suffering from "abuse," which is defined by G. L. c. 209A,
§ 1 (b), to include "placing another in fear of imminent serious
physical harm."2 To meet that standard under § 1 (b), the
plaintiff was required to satisfy both a subjective and an
objective standard: that she was currently in fear of imminent
serious physical harm, and that her fear was reasonable. See
Iamele v. Asselin, 444 Mass. 734, 737 (2005); Yahna Y. v.
Sylvester S., 97 Mass. App. Ct. 184, 186 (2020). In evaluating
whether the plaintiff has met her burden of proving that she has
a reasonable fear of imminent serious physical harm, the judge
"must consider the totality of the circumstances of the parties'
relationship." Iamele, supra at 740. We review the issuance of
a 209A order "for an abuse of discretion or other error of law."
E.C.O. v. Compton, 464 Mass. 558, 562 (2013). "[A] judge's
discretionary decision constitutes an abuse of discretion where
[the reviewing court] conclude[s] the judge made a clear error
2 The statute defines "[a]buse" as "(a) attempting to cause or
causing physical harm; (b) placing another in fear of imminent
serious physical harm; [or] (c) causing another to engage
involuntarily in sexual relations by force, threat or duress."
G. L. c. 209A, § 1.
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of judgment in weighing the factors relevant to the
decision, . . . such that the decision falls outside the range
of reasonable alternatives" (quotations omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014). We accord the
"utmost deference" to the credibility determinations made by the
judge who "heard the testimony of the parties . . . [and]
observed their demeanor" (citation omitted). Noelle N. v.
Frasier F., 97 Mass. App. Ct. 660, 664 (2020).
Based on the evidence before him, the judge could conclude
that the plaintiff had proven by a preponderance of the evidence
that the defendant had placed her in reasonable fear of imminent
serious physical harm. Cf. M.B. v. J.B., 86 Mass. App. Ct. 108,
109 & n.2 (2014) (evidence included past abuse and multiple
communications, some under false name). The plaintiff testified
that during their relationship the defendant raped her, and
averred in her affidavit that she was in fear of him. The
plaintiff presented text messages that the defendant sent to
her, threatening that if she did not comply with his demands for
contact, he would sell sexually explicit materials depicting
her. The defendant acknowledged that he had sent the text
messages and that he knew she was "scared."
The defendant argues that his testimony that he later
"clarified to the plaintiff that I did not actually have any
sexual materials" should have negated her fear of imminent
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serious physical harm. We are not persuaded. The judge could
have credited the plaintiff's testimony that the defendant's
threatening to post on the Internet sexually explicit materials
depicting the plaintiff put her in reasonable fear, and he could
further find that what she feared was imminent serious physical
harm. See G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018)
(inferring from judge's extension of 209A order that he found
victim reasonably in fear of imminent serious physical harm).
Cf. J.C. v. J.H., 92 Mass. App. Ct. 224, 228 (2017) (plaintiff's
fear of physical harm, G. L. c. 258E, § 1, shown by evidence
including defendant's text messages warning that he was keeping
"naked pictures" for "blackmail"). "[F]or the plaintiff's fear
of imminent serious physical harm to be reasonable, it is not
necessary that there be a history –- or even a specific incident
of physical violence." Noelle N., 97 Mass. App. Ct. at 665.
Cf. Commonwealth v. Chou, 433 Mass. 229, 235 (2001) (flyers
posted in victim's school naming her and describing her in
vulgar sexual terms and as "missing person" threatening in
violation of G. L. c. 272, § 53, and gave rise to legitimate
fear of bodily harm). In considering the reasonableness of the
plaintiff's fear, the judge was required to consider the
"totality" of the parties' relationship, Iamele, 444 Mass. at
740, and thus could consider the plaintiff's allegations of
sexual abuse during it. See Yahna Y., 97 Mass. App. Ct. at 187.
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See also Callahan v. Callahan, 85 Mass. App. Ct. 369, 374
(2014).
"The judge's questions during the hearing and [his]
ultimate decision make it clear that [he] credited [the
plaintiff's] version of the evidence and rejected [the
defendant's] conflicting testimony, which essentially consisted
of denying all of [the plaintiff's] charges and describing her
affidavit in support of the ex parte order as entirely false."
Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). As
discussed above, we accord the judge's credibility
determinations the utmost deference. See Noelle N., 97 Mass.
App. Ct. at 664.
2. Defendant's proffer of additional evidence. After the
judge ruled to issue the 209A order and the clerk announced its
issuance, the defendant stated, "I have proof of abuse from the
[p]laintiff that I wanted to present. Um, I don't know if that
would impact the decision at all." The court session then
ended. The defendant argues that the judge "afforded me no
opportunity to present any evidence that would easily counter
[the plaintiff's] claims." On the contrary, the defendant
testified to his version of events, and the judge asked him
several questions.
On appeal, the defendant has included in his appendix
materials that include text messages as well as a psychological
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evaluation of the defendant that post-dates the issuance of the
209A order. Those documents were not "filed in the case" in the
Boston Municipal Court, and so they are not properly included in
the defendant's record appendix. Mass. R. A. P. 18 (a) (1) (A)
(v) (b), as appearing in 481 Mass. 1637 (2019). Moreover, they
do not undermine the judge's credibility findings as to the
testimony he heard at the October 19, 2022 hearing after notice.
Order entered October 19,
2022, affirmed.
By the Court (Sacks, Grant &
Smyth, JJ.3),
Clerk
Entered: August 21, 2023.
3 The panelists are listed in order of seniority.
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