Instruction 6.690, Criminal Model Jury Instructions for Use in the District Court

STALKING IN VIOLATION OF A PROTECTION ORDER

G.L. c. 265, § 43(b)

The defendant is charged with stalking in violation of a court

issued protection order.

To prove the defendant guilty of this offense, the

Commonwealth must prove seven 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

alleged victim];

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

person to suffer substantial emotional distress;

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; and

Seventh, that the defendant knowingly violated a temporary or

permanent court issued protection order by this conduct.

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 the 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 contained “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 a true threat 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 out of 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 7 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 instruction Supplemental Instruction 1, “Threats

made indirectly,” infra.

To prove the seventh element, the Commonwealth must prove

that the defendant, by this conduct, knowingly violated a temporary or

permanent protection order. This requires the Commonwealth to

prove three things:

First: That a court had issued a temporary or permanent

protection order;

Second: That such order was in effect on the date when the

alleged acts occurred; and

Third: That the defendant knowingly violated the order by

committing the acts alleged.

If the jury has already been instructed on a separate charge of violation of

a protection order (Instruction 6.720):

I have already instructed you on how the

Commonwealth must prove those three elements. That

same explanation applies here.

If the jury has not already been instructed on a charge of violating a

protection order, give the following instruction:

A temporary or permanent order must have been

issued pursuant to [chapter 208] [chapter 209] [chapter

209A] [chapter 209C] of our General Laws [or] [protection

order issued by another jurisdiction] [or] [temporary

restraining order or preliminary or permanent injunction

issued by the superior court] which ordered the defendant:

(to refrain from abusing [name of plaintiff or child]);

(to refrain from contacting [name of plaintiff or child]

(directly or indirectly) unless authorized by a court);

(to stay a particular distance away from the person who

requested the order [or that person’s child]);

(to vacate and remain away from the household or

multiple family dwelling of [name of plaintiff or child]);

(to remain away from the workplace of [name of plaintiff

or child] [located at [address]);

To prove the defendant’s knowledge of the order, the

Commonwealth has to prove beyond a reasonable doubt

that the defendant knew that the pertinent term(s) of the

order (was) (were) in effect, either by having received a

copy of the order or by having learned of the pertinent

term(s) of the order in some other way. You should

consider all of the evidence and any reasonable inferences

you choose to draw from that evidence to determine the

extent of the defendant’s knowledge at the time it is alleged

the order was violated.

If the Commonwealth has proved all seven elements beyond a

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

Commonwealth has not proved one or more of these seven elements

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

SUPPLEMENTAL INSTRUCTIONS

1. Threat made indirectly. 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]).