MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant K.V. appeals from the issuance of an abuse prevention order pursuant to G. L. c. 209A. The plaintiffs affidavit and his testimony described an escalating campaign by the defendant of harassment and intimidation against him during the time the two lived together as roommates in a Somerville apartment. They were strangers prior to the plaintiff moving into the apartment, which has individual bedrooms leased by the landlord to unrelated tenants and common areas shared by all the tenants.
The evidence. The judge could have found the following facts. The plaintiff described a series of incidents that made him feel “unsafe” in his apartment. These incidents included threats to call the police and have the plaintiff, a noncitizen who is in the United States legally, arrested and deported. The defendant falsely accused the plaintiff of making “wrong claims to a notarized officer -- which is Federal [c]rime” -- whatever that might mean -- and said she would “report [him] to the authorities.” She pledged not to stop this campaign against him. She falsely claimed that he was “sexually harassing” her, falsely claimed that he had tried violently to break into her room with criminal intent, and falsely claimed that he had stalked her. She claimed that he had sexually harassed her because he parked his car too close to hers, and she sent a complaint letter, which included unfounded and irrational accusations of sexual harassment against him, to the Better Business Bureau, asking that the letter be published online. She falsely claimed that the plaintiff stood outside her room and kicked on her door violently, trying to break into her room, a claim that was undercut when the defendant tried unsuccessfully to obtain a restraining order against the plaintiff in the Somerville District Court. On June 22, 2019, the defendant threatened to call the police because the plaintiff moved dirty dishes she had left in the kitchen sink. According to his affidavit, “she got in my face” and threatened, “do not touch my stuff or I will call the police.” The defendant called the police at least twice over three days on the plaintiff for no good reason. The plaintiff became scared by the increasing intensity of the defendants actions against him and felt unsafe.
On February 6, 2020, the plaintiff filed a complaint seeking an abuse prevention order against the defendant asking, among other things, that it order her “to remain a safe distance away from [him].” On the same day an ex parte hearing was held; no order was issued but a further hearing after notice was scheduled (two-party 209A hearing). The two-party 209A hearing took place on February 20, 2020, with both the plaintiff and the defendant present.
At the two-party 209A hearing, the opening colloquy between the judge and the defendant gives a flavor of the proceeding.
The Court: Okay, I see. All right, let me hear from you, maam?
Defendant: Thank you for giving me the opportunity to present my case. My candidature in United States of America is protected both by CIA and FBI under program --
The Court: What are you talking about?
Defendant: Im talking about anti-money-laundering program, and my status is protected by FBI.
The Court: Who are you and what is your status?
Defendant: Maybe an informant, maybe under the protected status by FBI. This is classified information, and they declined me to produce it. But my record exists with Department of Homeland Security --
The Court: Im sorry, I dont understand at all what youre talking about.
Defendant: All right. So lets talk --
The Court: What does that have to do with this?
Defendant: The reason being that all my calls are being monitored.
The Court: By whom?
Defendant: By CIA because of the position that I held at GE. The minimum ticket size that we were handling was $50 million. At that point of time it was the legitimate number of billionaires in the world was 1,858. Im privy to certain pieces of conversation which is, of course, classified.
Discussion. The defendant argues on appeal that there was inadequate evidence of “abuse” as defined by G. L. c. 209A to support issuance of the order. As relevant here, G. L. c. 209A, § 1 (b), defines abuse to include “placing another in fear of imminent serious physical harm.”
Based on the plaintiffs testimony, the judge was entitled to find that the plaintiff was subjectively in fear of imminent physical harm. The difficult question before us is whether there was sufficient evidence for the judge to conclude that that fear was reasonable. See Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009) (in order to support issuance of abuse prevention order under G. L. c. 209A, § 1 (b), plaintiff must prove defendant put him in objectively reasonable fear of imminent serious physical harm).
This is a close case. We have held in the past that an individual can be in reasonable fear of imminent serious physical harm even from an individual with respect to whom there is no evidence of prior physically violent acts or explicit threats to do physical violence. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 145-146 (2006). See also Commonwealth v. Gordon, 407 Mass. 340, 349-350 (1990). In this case, the judge could have found that the plaintiffs subjective fear was a result of escalating and intensifying irrational acts by the defendant targeting the plaintiff. Although neither we nor the trial judge are in a position to assess whether the defendant could be diagnosed with any particular mental illness or what the contours of that illness might be, as the colloquy quoted above indicates, there was sufficient evidence in the record from which the judge could have concluded that the defendant was delusional, and that her beliefs, and therefore her actions, were not grounded in reality.
The question before the trial judge, then, was whether, in light of the defendants apparent delusions, the escalating intensity of her focus on the plaintiff, and her conduct toward him, including physically “getting in his face” when he moved her dirty dishes in the sink while threatening him that she would call the police if he touched her possessions, made his subjective fear of imminent physical harm reasonable.
We think the answer to that question, in the absence of any further information about the defendants past history, diagnosis, or treatment, necessarily turned upon the trial judges assessment of the demeanor of the defendant, and how she presented. These are not things that we can adduce from our examination of the cold paper record. In these circumstances, we must defer to the judges assessment of the demeanor and presentation of the defendant. See Ginsberg, 67 Mass. App. Ct. at 147-148 (trial judge has “the unrivaled benefit of observing the parties at close hand”). Only if the defendant could demonstrate that the judges conclusion was an abuse of discretion, or that the finding that the plaintiff was reasonably in fear of imminent physical harm was clearly erroneous, would she be entitled to reversal. See E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013); Diaz v. Gomez, 82 Mass. App. Ct. 55, 62 (2012). Because she has not done that, the judgment is affirmed.
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February 20, 2020 abuse prevention order affirmed.
FOOTNOTES
2
. We will not consider the defendants First Amendment arguments, which were raised for the first time on appeal. See Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004) (“We do not consider issues, arguments, or claims for relief raised for the first time on appeal”).