In Commonwealth v. Leboeuf, the defendant appealed from a conviction for criminal harassment and making harassing telephone calls under G. L. c. 265, § 43A and G. L. c. 269, § 14A. He presented seven arguments as to why the conviction should be overturned: insufficient evidence, erroneous denial of a motion to dismiss, improper entry of a partial nolle prosequi, violation of due process, erroneous jury instructions, violation of confrontation rights, and double jeopardy.
The case arose when a woman received about 30 phone calls on her cell phone from an unavailable number in the middle of the night. She recognized the defendant’s voice when he asked for contact information for her friend, who was also the mother of his child. She refused to give him the information, but he continued calling both her cell phone and her employer’s home phone. He asked her if he needed to come to Boxford, which was the location of the home where she served as a nanny. After 26 phone calls, she let her employer know and called the police.
In order to prove criminal harassment, the Commonwealth must show: (1) the defendant engaged in a knowing series of actions or speech on at least three different occasions, (2) the defendant intended to target the victim with harassment, (3) the conduct was such that it seriously alarmed the victim, (4) a reasonable person would suffer significant emotional distress due to the conduct, and (5) the defendant acted maliciously and willfully. The defendant argued that the Commonwealth had not shown the conduct was willful and malicious or that a reasonable person would have experienced significant emotional distress.
In Massachusetts, willful conduct is made up of intentional actions, rather than accidental ones. In this case, the defendant intentionally kept phoning the victim after she told him she wouldn’t give him the phone number and after she started hanging up and ignoring his calls. The court also found that any reasonable person would have foreseen harm would result from his intimidation and forceful demands. The victim had also testified that his phone calls made her uneasy and scared and that she feared for the safety of herself and the children she cared for.
The defendant also argued that the Commonwealth had failed to show beyond a reasonable doubt his only purpose in calling repeatedly was to annoy or harass her. The appellate court found that the jury could infer from the number, sequence, and nature of the calls that the defendant’s purpose in the persistent calling was to harass the victim. The court explained that once the victim told the defendant she wouldn’t give him the phone number, it was permissible for the jury to conclude the defendant’s purpose was to harass or annoy.
Among other things, the defendant contended that the Commonwealth should not have been allowed to enter a partial nolle prosequi that reduced a stalking charge to criminal harassment, when there was no probable cause for the Commonwealth to file a stalking charge. The appellate court explained that the Commonwealth has the discretion to enter a partial nolle prosequi to reduce a criminal charge to a lesser included offense. Criminal harassment is a lesser included offense for stalking. The complaint adequately stated a case for criminal harassment. The conviction was affirmed.
If you are charged in Massachusetts with harassment or stalking, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.
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