Criminal – Harassment prevention order – Threat

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Where a defendant was convicted of violating a harassment prevention order based on an email that she copied to the plaintiff who obtained the order, the conviction must be reversed because the evidence was legally insufficient to establish the contents of the email amounted to a “true threat,” or other constitutionally unprotected speech, as required to constitute an act of harassment.

“The defendant appeals from her conviction by a District Court jury of violating a harassment prevention order (order or HPO), in violation of G.L.c. 258E, §9, stemming from an e mail that she copied to D.L., the plaintiff who obtained the order. At trial, the Commonwealth proceeded on the theory that the defendant violated two separate conditions of the order. First, the Commonwealth argued that the defendant, by copying her e-mail to D.L., violated the order’s no-contact provision. Second, the Commonwealth argued that the contents of the defendant’s e-mail constituted an act of harassment or abuse prohibited by the order. …

“Although we conclude the evidence was sufficient to establish the defendant violated the no-contact condition of the order by intentionally copying her e-mail to D.L., we conclude the evidence was legally insufficient to establish the contents of her e-mail amounted to a ‘true threat,’ or other constitutionally unprotected speech, as required to constitute an act of harassment. …

“Therefore, we reverse the defendant’s conviction, because ‘it is impossible to tell’ whether the jury based their verdict on the ground for which the evidence was sufficient to convict, or on the theory for which the evidence was insufficient. …”

Commonwealth v. Hedequist (Lawyers Weekly No. 81-095-24) (25 pages) (Docket No. 23-P-463) (Aug. 26, 2024).

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