Instruction 6.680, Criminal Model Jury Instructions for Use in the District Court

STALKING

G.L. c. 265, § 43(a)

The defendant is charged with stalking.

To prove the defendant guilty of this offense, the

Commonwealth must prove six things beyond a reasonable doubt:

First: That the defendant committed at least three separate acts;

Second: That the defendant intended to target [the alleged victim] with

each act;

Third: That the defendant committed each act willfully and

maliciously;

Fourth: That the acts, taken as a whole, seriously alarmed the [the

alleged victim];

Fifth: That the acts, taken as a whole, would cause a reasonable

person to suffer substantial emotional distress; and

Sixth: That the defendant threatened [the alleged victim] with the

intention of placing [the alleged victim] in imminent fear of death or bodily

injury and that [the alleged victim’s] fear was reasonable.

See Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 251–52 (2021) (stalking is

comprised of the five elements of criminal harassment as well as the additional element

that defendant made a threat with the intent to place the person in imminent fear of death

or bodily injury).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant committed at least

three separate acts. An act may be based on conduct, speech or

both. The acts must be separate, distinct and separated by at least a

brief period of time.

Commonwealth v. Alphas, 430 Mass. 8, 15 (1999) (“repeatedly” in stalking statute requires

more than two incidents); Commonwealth v. Kwiatkowski, 418 Mass. 543, 548 (1994)

(same). See also Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 252-253 (2021).

“Period of time” means the passage of time and does not denote a particular time interval.

“As long as the acts are separate, distinct, and separated by some interval, they occur over

a period of time within the meaning of the statute.” Commonwealth v. Valentin, 91 Mass.

App. Ct. 515, 523 (2017).

Where act is based on speech alone. If an act is based on speech, the

Commonwealth must prove beyond a reasonable doubt

that the speech was a true threat or “fighting words” and

therefore not protected by the First Amendment.

A true threat is one that either threatens imminent

physical harm to the alleged victim, or that caused and was

intended to cause the alleged victim to fear physical harm

at the time or in the future. To determine whether the

statement is a true threat, you may consider the context or

circumstances in which the statement was made.

“Fighting words” are face-to-face personal insults

that are so personally abusive that they are plainly likely to

provoke a violent reaction.

If the Commonwealth has not proven beyond a

reasonable doubt that the alleged speech meets the

definition of true threats or fighting words, the alleged

speech cannot be the basis for one (or more) of the three

required acts. You may consider, however, whether it

gives context to other acts.

O'Brien v. Borowski, 461 Mass. 415, 422-425 (2012). See also Virginia v. Black, 538 U.S.

343, 359-360 (2003); Commonwealth v. Chou, 433 Mass. 229, 236 (2001).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant intended to target [the

alleged victim] with each act. By target, I mean that each act was directed

at [the alleged victim], and that the defendant intended that [the alleged victim]

know that each act was directed at them.

Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 253-254 (2021).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted willfully and

maliciously. An act is “willful” if it is done intentionally and by

design, and not by mistake or accident. The defendant acted willfully

if the defendant intended the conduct. An act is done with “malice” if

the defendant’s conduct was intentional and without justification or

mitigation, and any reasonably prudent person would have foreseen

the actual harm that resulted to [the alleged victim].

Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221–22 (2017). See also note 5 below.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that [the alleged victim] was seriously alarmed

by the conduct. The Commonwealth is required to prove only that the

cumulative effect of the defendant's conduct seriously alarmed [the

alleged victim]. It is not required to prove that each individual act did so.

Commonwealth v. Walters, 472 Mass. 680, 699 (2015).

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that the acts, taken as a whole, would

cause a reasonable person to suffer substantial emotional distress.

By substantial emotional distress, I mean distress that is

considerable, of importance, solid and real. The offending conduct

must be such as would produce a considerable or significant amount

of emotional distress in a reasonable person; it must be something

markedly greater than the level of uneasiness, nervousness,

unhappiness or the like which is commonly experienced in day to day

living.

The term “substantial emotional distress” is defined as “considerable in amount”, or “of real

worth and importance.” Commonwealth v. Robinson, 444 Mass. 102, 107-108 (2005)

(“emotional distress that is merely trifling or passing is not enough to satisfy this element,

but must be markedly greater than that commonly experienced as part of ordinary living”).

See also Commonwealth v. Paton, 63 Mass. App. Ct. 215, 221 (2005); Commonwealth v.

Clemens, 61 Mass. App. Ct. 915, 916 (2004).

To prove the sixth element, the Commonwealth must prove

beyond a reasonable doubt that at least one of the acts included a

threat made with the intention of placing [the alleged victim] in imminent fear

of death or bodily injury and that [the alleged victim’s] fear was reasonable.

To determine whether the fear was reasonable, you may consider the

actions and words of the defendant in light of all the circumstances.

Commonwealth v. Walters, 472 Mass. 680, 692 (2015); Commonwealth v. Cullen, 79

Mass. App. Ct. 618, 621-622 (2011).

If the threat was made indirectly, give Supplemental Instruction 1, “Threats made

indirectly,” infra.

If the Commonwealth has proved all six elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has not proved one or more of these six elements

beyond a reasonable doubt, you must return a verdict of not guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Threat made indirectly. In proving the sixth element, the

Commonwealth is not required to prove that the threat was

communicated directly to [the alleged victim]. This element is

satisfied if it is proved beyond a reasonable doubt that the

defendant intended the threat to be conveyed to [the alleged

victim]. It does not matter whether the threat was conveyed

directly or indirectly through another person or by some

other means as long as the defendant intended that the

threat be conveyed to [the alleged victim].

See Instruction 2.240 (Direct and Circumstantial Evidence). Commonwealth v. Walters,

472 Mass. 680, 693–94 (2015); Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 254

(2021) (“The threat need not be a direct communication, but rather may be indirect or

communicated through otherwise ambiguous behavior, as long as surrounding

circumstantial evidence would allow a jury to infer that the defendant's behavior was

intended as a threat to the victim”); Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 435

(2004) (“the legal definition of threat requires ‘communication’ of the threat in the sense

that it must be uttered, not idly, but to the target, to one who the defendant intends to pass

it on to the target, or to one who the defendant should know will probably pass it on to the

target”); Commonwealth v. Hughes, 59 Mass. App. Ct. 280, 283 (2003); Commonwealth v.

Furst, 56 Mass. App. Ct. 283, 284-285 (2002); Commonwealth v. Meier, 56 Mass. App. Ct.

278, 282 (2002).

2. Types of communications covered by statute. The conduct, acts or

threats may be communicated by any means including, but

not limited to (mail) (telephone) (facsimile transmission) (e-

mail) (internet communications) (telecommunications device)

(electronic instant messages) (any electronic communication

device including any device that transfers [signs] [signals]

[writing] [images] [sounds] [data] or [intelligence of any nature]

transmitted in whole or in part by a [wire] [radio]

[electromagnetic system] [photo-electronic system] [photo-optical system]).