MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2018 ME 102 Docket: Sag

- 17

- 508 Argued : June	13,	2018 Decided: July 24,	2018 Panel: SAUFLEY,	C.J.,	and ALEXANDER,	MEAD,	GORMAN, HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v. RICHARD	A.	HEFFRON	III

HJELM ,	J. [¶1] Despite being	 enjoined	 by	 a	 protection	 from	 abuse	 order	 from having	direct	or	indirect	contact	with	the	person	protected	by	that	order,	on	his Facebook	 page	 Richard	 A.	 Heffron	 III	 published	 several	 posts

— including threatening	ones

— directed at the	protected	person .		Heffron	was	charged	with violating	 the protection order	 (Class	 D), 19

- A	 M.R.S.	 §	 4011(1)	 (2017) ,	 and, after	a	jury

- waived	trial	held	in	the	Unified	Criminal	Docket	(Sagadahoc	County, Billings,	 J. ),	 he	 was	 convicted	 of	 the	 crime.	 	 Heffron	 appeals	 the	 con viction, asserting	 that	 his	 Facebook	 posts	 did	 not	 violate	 the	 protection	 order.	 	 W e affirm	the	judgment.2 I.		BACKGROUND [¶ 2 ]		The	State	charged	Heffron	with	violating	 the	order	 for	protection from	 abuse	 by	 having	 contact	 with	 the	 protected	 person

— conduct that	 was prohibited	by	the	order. 1 The	complaint	was	filed	in	September	of	2017,	and Heffron	pleaded	not	guilty.		After	hold ing	a	trial	in	November	of	2017 ,	the	court made	the	following	findings,	which	are	supported	by	evidence	in	the	record. 2
See	State v.	Proia , 2017	ME	169 ,	¶	2,	168	A.3d	798. [¶ 3 ] The order	 for	protection	 from	abuse,	of	which	Heffron	had	actual notice,	prohibited	him	from	having	direct	or	indirect	contact	with	the	protected person	 except	in	 circumstances	 that	 are	 not	 present	 here. 3 In September	 of 2017,	 Heffron	 published	 several	 posts	 concerning	 the	 protected	 person	 on

1 As	is	evident	 from	 our	description	 of	the	evidence, see	infra ¶	3 ,	 t he record could	well have supported	a	charge	that	Heffron violated the provision of	the	protection	order prohibiting	him from threatening	and	harassing the	protected	person,	but because	of an	admitted	oversight, the	State did not	charge	him	with	that	type	of	violation

.

2 In	 accordance	 with	 the	 requirements	 of	 the	 Violence	 Against	 Women	 Act, 18	 U.S.C.S. § 2265(d)(3)	(L EXIS	through	Pub.	L.	No.	115

- 196 ) ,	we	do	not	describe	those	facts	that are	likely	to reveal	the	identity	or	loc ation	of	the	protected	person. See	Doe	v.	Tierney ,	2018	ME	101,	¶	1	n.1,

--- A.3d

--- .

3 The	evidence	presented	at	trial	included	a	copy	of	the	protection	order,	which	reveals	that	it	was issued	after	a	full	he aring	(West	Bath, Field, J. )	held	in	June	of	2016,	that	the	order	was	predicated	on a finding	 that	 Heffron	 had	 abused	 and	 “presents	 a	 credible	 threat	 to	 the	 physical	 safety	 of”	 the protected	 person,	 that	 the	 order	 was	 to	 remain	 in	 effect	 until	 June	 of	 2018 ,	 and	 that	 the	 order prohibited	 Heffron	 from	 having	 direct	 or	 indirect	 contact	 with	 the	 protected	 person	 except	 in narrowly	drawn	circumstances	that	are	not	relevant	to	this	case.3 Facebook, 4 a	social	media	platform	that	Heffron	and	the	protected	person	each used	 when	 they	 were	 in	 a	 relationship	 and	 on	 which	 they	 had	 once	 been “friends”	and	now	hav e	“friends”	in	common. 5 The content	of	some	of	the	posts was	personal,	an d	the	language	Heffron	used	was

— as	described	by	the	court

— “obviously	offensive.” Heffron	began	some	of	the	posts	with	the	phrase,	“Hey, [protected	 person’s	 name],”	 and	 the	 posts	 the n	 directly	 addressed	 the protected	person	by	using	the	second

- person	“you.”		For	example,	in	one	of	the posts	 that	Heffron	 authored,	 he	 stated,	 “IM	 GONNA	 RUN	 YOU	DOWN	 EVERY CHANCE	I	CAN	TODAY	AND	TOMORROW	AND	THE	NEXT	DAY	AND	THE	NEXT.” [¶ 4 ]	 	 The court	 found	 that	 “these	 are	 not	 posts	 that	 were	 simply expressing	 protected	 opinions	 about	 [the	 protected	 person]	 or	 providing information	about	[the	protected	person],	these	posts	were	intended	to	reach [the	 protected	 person]	 directly	 and	 by	 their	 plain language	 that	 was	 their
intent [.]	 .	 .	 . [T]hey	are	addressing	 [the	 protected	person]	directly

.	 .	 . .”		The court	went	on	to	find	that	Heffron	intended	for	the	Facebook	posts	to	reach	the

4 At	 trial,	Heffron	 argued	 that	 the	 evidence	was	insufficient	 for	 the	 cou rt	 to	 find	 that he had authored	at	least	some	of	the	posts	at	issue.		The	court	nonetheless	found	that	Heffron	had	written all	of	the	posts	attributed	to	him,	and	Heffron	does	not	challenge	that	f actual	determination	on	appeal.

5 Facebook,	 an	 i nternet
- ba sed	 social	 media	 platform,	 is	 “becoming	 the	 dominant	 mode	 of communicating	directly	with	others,	exceeding	e

- mail	usage	in	2009.” State	v.	Craig , 112	A.3d	559 , 564	(N.H.	2015).		Facebook	users	can	create	their	own	Facebook	profile	pages	and	have	the	optio n	of customizing	their	privacy	settings	so	 that	“ anyone	including	p eople	off	of	Facebook”	can	view	the contents	of	their	profile	page. Id

. (quotation	marks	omitted).4 protected	person	and	that	this	occurred. 6 The	court	characterized	H effron’s	use of	 the	 social	 me dia	 platform as	 a	 way	 for	 him	 to	 “communicate	 with	 [the ] protected	 person through	 [Facebook	 as]	 an	 intervening	 agency	 or instrumentality.”	 	 Based	 on	 these	 findings,	 the	 court	 found	 Heffron	 guilty	 of violating	the	protection	ord er	and	sentenced	him	to	a	90

- day	jail	term	with	all but	 21	 days	 suspended	 and	 one	 year	 of	 probation	 that	 included	 conditions requiring	him	to	comply	with	any	protection	orders	in	effect	and	to	not	issue posts	 on	 social	 media	 about	 or	 d irected	 to	 the	 protec ted	 person. Heffron appealed	the	conviction. M.R.	App.	P.	2B(b)

. II.		DISCUSSION [¶ 5 ] As	authorized	by 19

- A	M.R.S.	§	4007(1)(D)	(2017) ,	the	protection order	issued	against	Heffron	prohibited	him	“from	having	any	contact,	direct	or indirect ,”	 with the	 p rotected	 person	 except	 in	 specifically	 described
circumstan ces	that	are	not	present	here. “Violation	of	a	protection	from	abuse order	 is	 committed	 when	 the	 defendant	 violates	 a	 temporary,	 emergency, interim	or	final	protective	order	if	the	defendant	has	p rior	actual	notice	of	the existence	of	the	order.” State	v.	Smen , 2006	ME	40 ,	¶	8,	895	A.2d	319 (alteration

6 Evidence	presented	at	the	trial	indicated	that	the	protected	person	saw	the	posts	afte r	a	member of	Heffron’s	family	forwarded	screenshots	of	them	to	the	protected	person.		The	investigating	officer testified	that	once	he	received	a	report	of	the	posts,	he	was	able	to	find	them	easily	on	Heffron’s	public Facebook	page.5 omitted)	(quotation	marks	omitted) ; see 19

- A	M.R.S.	§	4011(1)(A)

. A	violation of	a	no

- contact	provision	of	a	protection	order	is a	Class	D	crime. 19

- A	M.R.S. § 4011(1). Heffron	 asserts	 that	 the	 entries	 he	 posted	 on	 Facebook	 do	 not
constitute “ direct	or	indirect	contact ” with	the	protected	person,	that	he	did	not have	sufficient	notice	that	the	posts	were	a	form	of	proscribed	conduct,	and	that the	posts	we re	a	protected	form	of	speech. [¶ 6 ]	 	 Although	 “contact”	 is	 not	 defined	 in	 the	 protection	 statutes, see 19

- A M.R.S. §§	 4001

- 4014	 (2017) ,	 we	 have	 explained	 that	 “[b]y	 prohibiting direct	or	indirect	contact,	.	.	.	an	order	entered	pursuant	to	section	4007(1)(D) instructs	a	defendant	not	to	meet,	connect,	or	communicate	with	the	protected person,	 either	 personally	 or	 throu gh	 an	intervening	 agency,	instrumentality, influence,	or	other	person.” State	v. Elliott , 2010	ME	3 ,	¶	34,	987	A.2d	513; see also	State	v.	Pettengill , 635	A.2d	1309 ,	1310	(Me.	1994)	(stating	that,	in	a	bail order	prohibiting	a	defendant	from	having	“conta ct”	with	another	person, the “word	‘contact’	is	not	a	word	of	art,	but	one	of	common	usage	and	commonly understood”).		The	“[c]ontact	prohibited	by	paragraph	(D)	may	be	established by	proof	of	a	variety	of	actions,”	including	email ing , gesturing	from	the	w indow of	a	car, calling	the	house	of	the	protected	person’s	current	romantic	partner,6 and	“monitoring	a	person	along	a	specified	route	to	and	from	work

.	.	. .” Elliott , 2010	ME	3 ,	¶¶	33,	36,	987	A.2d	513

. [¶ 7 ]	 	 Given the	 breadth	 of	 the	 definition	 of	 “contact”	 that	 a	 protection order	can	bar,	the	court	did	not	err	by	finding	that	Heffron	had	direct	or	indirect contact	with	the	protected	person. The	finding	is	supported	first	by	the	content of	some	of	the	posts,	in	whi ch	Heffron	directly	addressed	the	protected	person by	using	the	phrase,	“Hey	[protected	person’s	name]”	followed	by	personal	and demeaning	allegations	about	the	protected	person. The	posts	also	referred	to the	protected	person	in	the	second	person

— in	othe r	words,	as	“you.”		Just	as	if Heffron	were	speaking	directly	to	the	protected	person,	he	framed	his	posts	as direct	 communications	 to	 that	 person.	 	 Therefore,	 the	 court	 did	 not	 err	 by finding	 that	 the	 language	 of	 the	 Facebook	 posts	 itself	 demonstrated	 tha t Heffron	intended	to	communicate	with	the	protected	person. 7 [¶ 8 ] The	 court’s	 finding	 of	 contact	 is	 also	 supported	 by	 the	 means	 of communication	that	Heffron	chose.		As	the	court	found,	when	Heffron	published the	posts	to	his	publicly	accessible	Facebo ok	page,	he	knew	that	the	protected

7 Because	 the	court	 found	that	Heffron’s	actions	were	intentional,	we	do	not	need	 to	reach his challenge	concerning	the	mens	rea	required	to	establish	a	violation	of	the	protection	order	or	address the	question	of	whether	a	lesser	culpable	state	of	mind	woul d	suffice	to	prove	the	commission	of	the crime. See 17

- A	M.R.S. § 34(3)	(2017) (explaining	that	if	a	court	finds	a	defendant	acted	intentionally, then	 that	 finding	 is	 sufficient	 to	 establish	 that	 the	 defendant	 acted	 knowingly, recklessly,	 and negligently)

.7 person	 and	 that	 person’s	 family	 and	 friends	 used	 Facebook.	 	 Indeed,	 the protected	 person	 learned	 of	 Heffron’s	 Facebook	 posts	 when	 a	 relative	 of Heffron,	who	also	knew	the	protected	person,	showed	screenshots	of	the	posts to	the	protected	person.		Therefore,	Heffron	used	Facebook	as	an	intervening agency	or	instrumentality for	the	purpose	of	making contact	with	the	protected
person. See	Ellio t t , 2010 ME 3 ,	¶ 34,	987	A.2d	513

. [¶9 ] In	short,	the	court’s	finding	that	Heffron	had	indirect	contact	with the	protected	person	was	 supported	by	 the	evidence, see	Smen , 2006 ME	40 , ¶ 7,	895	A.2d	319	(stating	that	“[i]n	reviewing	a	challenge	to	the	sufficiency	of the	evidence	in	a	criminal	matt er,	we	consider	the	evidence	in	the	light	most favorable	 to	 the	State	 to	determine	whether	 the	 trier	 of	 fact	 rationally	could have	found	beyond	a	reasonable	doubt	every element	of	the	offense	charged ” (quotation	marks	omitted) ),	and	the	court’s	legal	analy sis	was	fully	consistent with	the	broad	notion	of	“contact”	explained	in Ellio t t

. [¶ 1 0 ] The	court’s	findings	also	dispose	of	Heffron’s	assertion	that	he	did not	have	 adequate	 notice	 that	 his	 Facebook	posts	were	 a	 prohibited	 form	 of contact	with	the	protec ted	person. Through	his	posts,	Heffron intended to	have contact	with	 that	person.		Therefore,	as	 found	by	 the	court,	Heffron’s	contact with	 the	protected	person	was	not	inadvertent	or	achieved	 through	a	means8 that	was	not	reasonably	seen	to	serve	as	an	ef fective	means	of	communication. Because	his	posts	foreseeably	reached	th e	protected	person,	Heffron achieved his	goal,	and	he	cannot now successfully complain	that	he	did	not	know	that	his conduct	was	proscribed.		Wherever	the	boundary	may	lie	between	con duct	that falls	 within	 and	 without	 the	 protection	 order’s	 prohibition	 against	 contact, Heffron’s	Facebook	posts	do	not	approach	that	line. [¶1 1 ]		Finally ,	Heffron	may	be	seen	to	argue	that	his	Facebook	posts	were protected	speech.		We	review	this	First	Amendment	challenge	de	novo. See	City of	Bangor	v.	Diva’s,	Inc. , 2003	ME	51 ,	¶	10,	830	A.2d	898. Our	review	of	Heffron’s Facebook	 posts,	which	we	 do	not	describe	in	detail	 for	 the	 reason	 explained above, see	supra n.2 ,	confirms	that	some	of	their	contents	are	highly	personal, derogatory,	harassing, and	 threatening.		As	we	have	explained,	courts	do	not violate	a	defendant’s	First	Amendment	protections	by	issuing	a	protection	from abuse	order	that	prohibits	him	or	her	from	having	any	direct	or	indirect	contact with	 the	 protected	 person	where	 the	 defend ant	 has	 a	 history	 of	 engaging	in behavior	that	“would	cause	a	reasonable	person	to	fear	bodily	injury	and	suffer emotional	 distress

.	 .	 . .” Childs	 v.	 Ballou , 2016	ME	 142 ,	 ¶ 26,	 148	 A.3d	 291. Simply	 put,	 “[t]he	 First	 Amendment	 does	 not	 serve	 as	 a	 shield	 to	 protect [Heffron]	from	the	consequences	of	his	harassing	communications.” Id .	¶	24

.9 [¶1 2 ] Here,	based	on	a	judicial	determination	that	Heffron	had	abused and	 posed	 a	 credible	 physical	 threat	 to	 the	 protected	 person,	 a	 protection order

— which	Heffron	did	not	challenge

— was	issued	against	h im	and	barred him	from	having	direct	or	indirect	contact	with	the	protected	person	in	nearly all	 circumstances,	 including	 those	 presented	 here.	 	 That	 order	 was	 a constitutionally	 sound	 injunction	 against	 the	 very	 conduct	 in	 which	 Heffron later	chose	to	eng age,	resulting	in	this	prosecution. See id. ¶¶	20,	26 .		Based	on the	 evidence	 presented	 at	 this	 criminal	 trial,	 the	 court	 correctly	 determined that	Heffron’s	 communications	with	 the	 protected	 person	 fell	 short	 of	 those that	 deserve	 constitutional	 protecti on	 and	 that	 a	 conviction	 based	 on	 his violation	of	 the	protection	order	did	not	place	his	First	Amendment	rights	at risk. The	entry	is: Judgment	affirmed.

James	 M.	 Mason,	 Esq. (orally) ,	 Handelman	 &	 Mason	 LLC,	 Brunswick,	 for appellant	Richard A. Heffron III Jonathan	R.	Liberman,	District	Attorney,	and	Alvah	 J.	Chalifour,	 Jr.,	Asst.	Dist. Atty. (orally) ,	 Sagadahoc	 County	District	 Attorney’s	Office,	 Bath, for	 appellee State	of	Maine Sagadahoc	County	Unified	Criminal	Docket	docket	number	CR

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