Commonwealth v. Lawrence Zinser.

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

23-P-104

COMMONWEALTH

vs.

LAWRENCE ZINSER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

While serving a period of probation, the defendant was

charged with new criminal offenses. Following an evidentiary

hearing, a judge of the Superior Court determined that it was

more likely than not that the defendant had violated the

conditions of his probation by committing the new offenses and

revoked the defendant's probation. For the reasons that follow,

we affirm. 1

Background. In August 1998, a jury convicted the defendant

of armed assault with intent to kill, assault and battery with a

dangerous weapon on a person over sixty, and malicious

1 Although this appeal appears to be untimely, we choose to
decide it on the merits. See Eyster v. Pechenik, 71 Mass. App.
Ct. 773, 781–782 (2008).
destruction of property. 2 The defendant appealed, and the

judgments of conviction were affirmed by a different panel of

this court in an unpublished memorandum and order. See

Commonwealth v. Zinser, 51 Mass. App. Ct. 1105 (2001). In

February 2021, after a lengthy term of incarceration (twenty-

three years), the defendant was released from prison and began

to serve a ten-year term of probation. Approximately six months

later, on August 2, 2021, he was indicted by a grand jury and

charged with two counts of criminal harassment, subsequent

offense, in violation of G. L. c. 265, § 43A. On the basis of

the new charges, the probation department issued a notice of

surrender, alleging that the defendant had violated the

condition of his probation requiring him to "obey local, state,

and federal laws, and court orders." 3

2 The victims in the case were the brother and husband of a
former student whom the defendant had met at least a decade
earlier while he was employed as a substitute teacher at Lowell
High School. There was evidence, as the defendant acknowledges
in his brief, that the incident was related to the defendant's
stalking of the student. Commonwealth v. Zinser, 51 Mass. App.
Ct. 1105 (2001).
3 The notice of surrender also alleged that the defendant had

violated the special condition of his probation requiring him to
have "no contact direct or indirect contact with victims or
family of victims." The judge found that the evidence did not
support a finding that the defendant had failed to comply with
the no contact order because neither victim of the new charges
was a victim of the crimes for which the defendant had been
convicted. Consequently, he did not revoke the defendant's
probation on this ground.

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 Based on the evidence presented at the probation revocation

hearing, 4 the judge could have found as follows. The defendant

has a lengthy criminal history that included incidents of

criminal harassment. The alleged victims of the new criminal

harassment charges, Susan and Linda, 5 had been subjected to the

defendant's intimidating and harassing conduct before he was

incarcerated in 1998. Although the defendant was not convicted

of any offense involving either victim, they both reported the

defendant's conduct to the police at that time. The ensuing

investigation revealed that the defendant made annoying and

harassing telephone calls to Susan, sent her letters containing

"sexual overtones and threatening gestures," and on two separate

occasions the tires of cars belonging to her parents and

neighbors were slashed. The defendant also wrote to Linda, and

in one letter he referred to Susan as a "she monster" and

speculated that "I guess you'll be talking about me to her

[Susan] in 1992!" After Linda gave the letter to the police,

the tires of cars belonging to her family were slashed.

Within a few months of being released from prison, the

defendant attempted to contact Linda and Susan by calling the

4 Most of the hearing was not recorded. The parties filed a
joint motion to reconstruct the record pursuant to Mass. R. A.
P. 8 (c), as appearing in 481 Mass. 1611 (2019). The judge
allowed the motion in part and made certain modifications.
5 The alleged victims' names are pseudonyms.

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telephone numbers associated with the homes in which they lived

decades earlier when the defendant knew them. The defendant

called Linda's number three times on her birthday in April 2021.

Linda's mother was still residing in the house and did not

answer the first two calls because she did not recognize the

number. She answered the third call and spoke briefly with the

caller, who asked for Linda. The mother replied that Linda was

not home. After the caller hung up, the mother dialed the

number appearing as the last call on her phone and learned that

the number belonged to the defendant. Linda was interviewed

about the telephone calls by a police detective who was familiar

with the defendant's prior criminal conduct. He described her

as "extremely shaken" and she expressed her fear of the

defendant. She stated that she "could not believe that [the

harassment] was happening again."

The defendant also telephoned Susan's childhood home.

Susan testified about the telephone calls before the grand jury.

Portions of her testimony were submitted as an exhibit at the

probation revocation hearing. She related that the defendant

spent ten years terrorizing her and her family in the 1990s.

When Susan learned that the defendant had been released from

prison, she moved her elderly mother out of her childhood home

out of fear that the defendant would target Susan and her family

again. Telephone records obtained during the investigation

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showed six telephone calls from the defendant's phone number

were placed to Susan's prior home. The first call was made on

April 25, four calls were made on April 27, and one call on

April 28. None of these telephone calls was answered. Susan

was "[t]errified" on learning the defendant had called her

mother's home.

Discussion. "In a probation revocation hearing, the issue

to be determined is not guilt beyond a reasonable doubt but,

rather, whether the probationer more likely than not violated

the conditions of his probation" (citation omitted).

Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 29 (2020).

"Thus, we uphold a judge's finding of a probation violation if

it is supported by a preponderance of the evidence. . . . The

decision to revoke probation, based on a violation shown by a

preponderance of the evidence, lies within the discretion of the

judge." Id. The defendant first argues that the judge abused

his discretion because the evidence did not establish by a

preponderance of the evidence that he had committed new criminal

offenses. We disagree.

"To support the complaint for criminal harassment, the
Commonwealth must show that there is probable cause that
(1) the defendant engaged in a knowing pattern of conduct
or speech, or series of acts, on at least three separate
occasions; (2) the defendant intended to target the victim
with the harassing conduct . . . on each occasion; (3) the
conduct . . . [was] of such a nature that [it] seriously
alarmed the victim; (4) the conduct . . . [was] of such a
nature that [it] would cause a reasonable person to suffer

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 substantial emotional distress; and (5) the defendant
committed the conduct . . . 'willfully and maliciously'"
(quotations and citation omitted).

Commonwealth v. Brennan, 481 Mass. 146, 149-150 (2018).

The defendant contests the sufficiency of the evidence with

regard to the fourth element only. He claims that the conduct

at issue -– dialing a telephone number -– was not illegal and

would not cause a reasonable person to suffer substantial

emotional distress. This argument ignores our case law which

holds that even innocuous conduct may constitute harassment in

certain circumstances. "A defendant's otherwise legal conduct

may qualify as an act of harassment when considered with other

evidence." Brennan, 481 Mass. at 150. Here, the other evidence

the judge could consider consisted of the defendant's prior

history of harassing conduct and, more importantly, the

defendant's previous intimidating conduct toward Linda, Susan,

and their families. Both Linda and Susan expressed their fear

that the defendant would recommence a pattern of harassment

against them. There was ample evidence from which the judge

could conclude not only that the victims were seriously alarmed

by the defendant's conduct but also that "any reasonable person

would be greatly alarmed and experience severe emotional

distress if subjected to similar circumstances." Commonwealth

v. O'Neil, 67 Mass. App. Ct. 284, 294 (2006). See Commonwealth

v. Lehan, 100 Mass. App. Ct. 246, 253 (2021).

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 Next, the defendant argues that the order of revocation

violated his right to due process because he was not provided

with notice that attempting to contact either Linda or Susan

could result in criminal charges. This argument misses the

mark. It matters not that the no contact order set forth as a

special condition of the defendant's probation did not include

either Linda or Susan because the probation contract clearly

stated that the defendant was required to obey all State laws.

The condition requiring the defendant to obey all State laws

provided reasonable guidance that a person of reasonable

intelligence would understand that engaging in criminal activity

was prohibited. Put another way, the revocation of the

defendant's probation was consistent with due process because he

received notice that the commission of a new crime could lead to

a revocation of his probation. See Commonwealth v. Ruiz, 453

Mass. 474, 475 (2009) (due process requires that probationers

"receive fair warning of conduct that may result in the

revocation of probation").

Lastly, the defendant argues that the order of revocation

did not comport with due process because the criminal harassment

statute is unconstitutionally vague as applied to him. This

argument is similarly unavailing. First, we note that the

Supreme Judicial Court has held that the statute is not

unconstitutional on its face as it is neither overbroad nor

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vague. See Commonwealth v. Johnson, 470 Mass. 300, 308-309

(2014). Second, as discussed above, while it is true that the

placement of an (unanswered) telephone call by itself would not

ordinarily constitute an act of harassment, under the

circumstances presented the defendant had notice that he could

be held criminally liable for any act of harassment and that any

attempt to contact one of the persons whom he previously had

subjected to harassment would fall into that category.

Accordingly, viewed in context, the revocation of the

defendant's probation was consistent with due process.

Order revoking probation and
imposing sentence affirmed.

By the Court (Vuono, Singh &
Englander, JJ. 6),

Clerk

Entered: November 1, 2023.

6 The panelists are listed in order of seniority.

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